Cantonment Borad & Anr vs Church Of North India

Cantonment Board and another ...Appellants

Versus

Church of North India ...Respondent

J U D G M E N T

Gokhale J.

This appeal by Special Leave seeks to challenge the order

passed by a Division Bench of High Court of Rajasthan in D.B Civil Special

Appeal (Writ) No. 753 of 1993 dated 17.5.2002 whereby the appeal filed by

the appellants herein against the order passed by a Single Judge of that High

Court dated 13.8.1993 in Writ Petition No. 5281 of 1991 filed by the first

respondent came to be dismissed. The Single Judge had allowed respondent's

writ petition.

2. The facts leading to this appeal are as follows:

The respondent herein is running a Mission Hospital at

Nasirabad in the State of Rajasthan. The Hospital building initially belonged

to the East India Company. Later on, it belonged to the Government of India

and it is under the management of the Nasirabad Cantonment which is a

cantonment governed under the Cantonment Act, 1924. The case of the

appellants is that the respondent was given the concerned premises under a

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lease deed dated 1.4.1982 which expired on 31.3.1984. The rent for the

premises was fixed at Rs. 75 per month. The lease deed provided in clause 2

(iii) that the lessee shall vacate the premises before the expiry of the lease as

and when required by the Cantonment Board provided seven days' notice to

this effect is given in writing.

3. The case of the appellants is that the premises were not being

utilized fully and that the respondent had taken some other premises also.

The appellants needed the premises. After the expiry of the lease on

31.3.1984, the Estate Officer of the Cantonment Board stopped accepting the

rent.

4. The appellants served a notice of seven days as required under

Section 4 of The Public Premises (Eviction of Unauthorised Occupants) Act,

1971 (hereinafter referred to as `Public Premises Act') on 14.3.1984 and again

on 27.3.1984. The respondent filed a Civil Suit No.10/1985 in the Court of

the Additional Civil Judge No.1 at Ajmer to challenge the notice. The

respondent filed an application to deposit the rent in Civil Court but that was

not entertained. The Civil Suit came to be dismissed on 31.7.1987 and the

respondent applied for six months time to vacate which was accepted by the

appellant. The order passed by the Additional Civil Judge, Ajmer in that

matter on 31.7.1987 reads as follows:-

"31.07.1987: Present, Counsel for the parties. The learned counsel for the applicant seeks six months time to vacant the disputed property, the learned counsel for the non- applicant is agreeable for this request. Hence, it is directed that non-applicant will not dispossess the applicant from the disputed premises, and he will be at liberty to initiate proceedings for the same thereafter. This application is

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disposed of with this order, and the file to be consigned to record along with this decision."

5. The respondent, however, did not vacate the premises as

assured, and therefore, the appellant filed a fresh application under Section 4

of the Public Premises Act before the Estate Officer. The Estate Officer

considered the objections filed by the respondent and then passed an order

of eviction under Section 5 of that Act on 26.6.1991. The order passed by

the Estate Officer in para 7 thereof, notes that the respondent did raise the

question of jurisdiction of the Estate Officer but only on the ground that the

jurisdiction to evict was with the Civil Court and the action should be taken

under the Transfer of Property Rules. The Estate Officer rejected that

submission holding that the Public Premises Act was a special Act and it will

override the provisions of the Rent Control Act. The appeal against the order

of the Estate Officer filed under Section 9 of the Public Premises Act was

dismissed by the District Judge and hence, the respondent filed a Writ

Petition No. 5281 of 1991 before a Single Judge of the Rajasthan High Court.

6. The Learned Single Judge who heard the writ petition took the

view that the provisions of the Transfer of Property Act 1882 applied to the

Cantonments Boards. The particular lease deed was not a registered lease

deed as was necessary as per Section 107 of the Transfer of Property Act,

since the period of lease was more than one year, and it was a lease for an

immoveable property. The Learned Judge held the particular lease to be a

lease from month to month, and therefore, there must be a 15 days' notice to

terminate it as required by Section 106 (1) of the Transfer of Property Act

1882. He held that the 7 days' notice of termination will not be a valid one.

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He further held that since such termination had not taken place, the

respondent could not be held to be an unauthorized occupant. The Learned

Judge also took the view that the order dated 31.7.1987 could not be read as

an undertaking to vacate after the expiry of six months. Therefore, the

Learned Single Judge allowed the Writ Petition filed by the respondent and

set aside the order passed under the Public Premises Act. The appellants

herein preferred an Appeal numbered as 753 of 1993 to the Division Bench.

The Division Bench also took the same view as the Learned Single Judge and

dismissed the Appeal filed by the appellants herein. The Division Bench held

that the premises may be taken to be public premises but the respondent

cannot be taken to be an unauthorised occupant since his right to occupy was

not terminated by a 15 days' notice.

7. Being aggrieved by this Judgment and order the present appeal

has been filed. The learned counsel appearing for the appellant submitted

that the premises belonged to Union of India and were being managed by the

appellant administratively under the Public Premises Act. Section 4 of that

Act permitted a notice of seven days, which had been given in the instant

case. Even the lease document also provided for a termination of the lease

by a notice of seven days, and in any case, the action was being taken after

the expiry of the lease period. The lease had not been extended. That being

so, the respondent was in unauthorized occupation within the definition of

`unauthorized occupation' under Section 2 (g) of the Public Premises Act. He

relied upon a number of decisions to contend that the position of a lessee

holding on under an unregistered deed which is compulsorily registrable is

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that of a mere tenant at will, and a mere demand for possession is sufficient

to determine the lease, and no notice under Section 106 of the Transfer of

Property Act was necessary. We are not required to go into this submission

for reasons which are stated herein after.

8. The Learned Counsel for the respondent tried to refute these

submissions by maintaining the submissions which were canvassed before the

Court below. The submissions of the respondent are untenable on the face of

it, in as much as the period for which the premises were let out was over and

obviously the respondent was in unauthorized occupation thereafter. The

appellants were therefore entitled to take recourse to law and take possession

of the premises. The only question is whether they had taken the correct

course of action as permissible in law.

9. Mr. Singla, learned counsel for the respondent however, lastly

submitted that the respondent was owner of the premises and secondly, the

Public Premises Act did not apply to these premises also for the reason that

the Cantonment Boards have come to be covered under the Public Premises

Act only by Amendment Act of 1993 which came into force on 7.1.1994. That

is how clause (viii) `governing any Cantonment Board constituted under the

Cantonment Act, 1924 (2 of 1924)' has come to be included in the definition

of "public premises" under section 2 (e) (2) (viii) of the Public Premises Act.

He therefore, submitted that at the time when the proceedings were initiated

and the order was passed under the Public Premises Act, the Estate Officer

did not have jurisdiction to proceed under this Act and therefore, for this

reason alone the eviction proceedings will have to be held as bad in law for

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want of jurisdiction and the appeal will have to be dismissed. He submitted

that this was an issue with respect to having jurisdiction to deal with the

subject-matter and the submission can be raised at any stage of proceedings.

10. Mr. Venkataramani, learned counsel appearing for the appellant

pointed out in his rejoinder that neither of these two submissions were

advanced any time in the past. In any case, as far as the ownership of the

premises by the respondent is concerned, no document has ever been

produced in this behalf. With respect to the second submission he pointed

out that the case of the appellant was that the premises belonged to Union of

India and the appellants were entrusted with the management thereof. The

Public Premises Act, therefore, applied to the concerned premises.

11. The submission of Mr. Venkataramani that the question of

jurisdiction was not raised any time earlier is not fully correct in as much as,

pointed out earlier, para 7 of the estate officer's order records the objection

to the jurisdiction of the estate officer raised by the respondent though in a

different manner. The counsel for the respondent submitted that the issue

which he had raised now in this court disputing the jurisdiction of the Estate

Officer was a question of law and the matter went to the root of jurisdiction

of the authority to pass the eviction order. If the authority did not have the

jurisdiction to proceed under the Public Premises Act, the eviction order could

not be upheld. A point about the jurisdiction can be raised even in this court

even if it was not raised any time earlier.

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12. We have considered the submission of both the counsel. As far

the first submission of Mr. Singla viz. that the premises belong to the

respondent is concerned, the same has never been raised any time before.

On the record of the present Civil Appeal, we have the objection filed by the

respondent before the Estate Officer, and a copy of the Writ Petition filed by

the respondent. Nowhere have they claimed that they own the premises. On

the contrary, in paragraph 3 of their objections before the Estate Officer, they

have stated that the Executive Officer of the Cantonment Board is the

Secretary and the Custodian of the property. In Paragraph 4 of Writ Petition

No.5281/1991, filed before the Single Judge, they have clearly stated that the

hospital building initially belonged to the East India Company and later on had

belonged to the Government of India. They are not disputing the fact that a

lease-deed was executed between the parties on 1.4.1982 whereby they were

in occupation of the Hospital building. In the second recital of the lease-

deed, it is clearly stated that the lessor is the owner of the premises, and the

premises were being let out to the hospital run by the respondent on the

terms contained therein. The respondent had nowhere claimed that they own

the land or they constructed the building thereon. This being so, it is not

possible to accept the first objection of Mr. Singla.

13. As far as, the second submission of Mr. Singla is concerned, it is

submitted by him that the Cantonment Boards were covered under the Public

Premises Act only with effect from 1.6.1994 by an amendment introducing

sub-section (viii) in Section 2(e)(2) of the Public Premises Act. He has,

therefore, contended that the Estate Officer had no jurisdiction to pass

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eviction order on 26.6.1991 and hence, on this ground alone, the present

appeal must be dismissed. As far as this submission of Mr. Singla is

concerned, Mr. Venkaramani submitted that this objection ought to have been

raised at the earliest opportunity so that appellant could have met the same

earlier. It is undoubtedly true that objection to the maintainability of a

proceeding must be raised at the earliest but an objection that the authority

did not have the jurisdiction to entertain the proceedings over the subject-

matter goes to the root of the proceeding. In a number of judgments, this

Court has held that a defect, with respect to the lack of inherent jurisdiction is

basic and fundamental and validity of such an order can be challenged at any

stage, even in execution or in collateral proceedings (for reference see a

judgment of a bench of three judges of this Court in Balwant N.

Viswamitra and others v. Yadav Sadashiv Mule (dead) through Lrs.

[reported in (2004) 8 SCC 706] .

14. However, such an eventuality does not arise in this case for the

reason that the case of the appellant has been that the hospital premises of

the respondent belong to the Union of India and are only under the

management of the appellant, and therefore, are the "public premises", under

Section 2(e) of the Public Premises Act 1971. Thus, in the first paragraph

containing the reasons of his order dated 26.6.1991, the Estate Officer states

as follows:

"1. That the CNI Mission Hospital, Nasirabad which is situated on and land thereon, belongs to the Union of India and lies under the management of Cantt. Board, Nasirabad is a public premises as defined under 2(e) of the P.P.Act, 1971."

9 It is this order of eviction which was challenged in appeal to the

District Court and thereafter in writ petition.

15. Section 2(e) of the Public Premises Act defines "public

premises." This section is split into two sub-sections. Sub-section (1) covers

thereunder any premises belonging to or taken on lease or requisitioned by or

on behalf of the Central Government. Sub-section (2) deals with premises

belonging to or taken on lease or on behalf of various entities such as

Government Companies, Universities, Major Ports etc. which are mentioned in

that sub-section, and Cantonment Boards have come to be covered under

sub-section (viii) by amendment with effect from 1.6.1994. The case of the

respondent has been that the premises belong to Union of India, and,

therefore, are public premises. The Estate Officer did have the jurisdiction

over such premises. It is another matter that the premises of Cantonment

Boards have also come under the definition of public premises since 1.6.1994.

It cannot mean that the premises of Union of India which were always under

the Public Premises Act, but under the Management of a Cantonment Board,

since prior to this amendment, would not be covered under the Public

Premises Act. This has been the plea of the appellants right from the

beginning. Section 116A of the Cantonment Act 1924, gives the power to the

Cantonment Board to manage any property entrusted to it by the Central

Government. It is under this Section that the present premises are under the

management of the appellant Board. Section 116A reads as follows:

"Section 116A. Power to manage property.- A [Board] may, subject to any conditions imposed by the Central Government, manage any property entrusted to its management by the Central Government on such terms as to the sharing of rents and profits

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accruing from such property as may be determined by rule made under section 280."

16. The Government has the power to make rules concerning the

management of these properties. This power is contained in Section 116 of

the Act. Mr. Venkaramani has drawn our attention to the Cantonment Land

Administration Rules 1937 under which the properties under their

management are classified into three categories `A", `B' & `C'. The present

premises fall in category `C'. He has also shown us the receipt issued by the

Defence Estate Officer to the appellant for the payment of rent of the land on

which the hospital building is situated. We have also been shown the

relevant notification issued by the Central Government authorizing the

concerned Officer as the Estate Officer for the premises under the control of

the Ministry of Defence.

17. This being the position, there is no substance in the objection raised by

and on behalf of the respondent. The Estate Officer did have jurisdiction to

take action against the respondent under the Public Premises Act. The period

of authorization of the respondent to occupy the premises was over on

31.3.1984. Therefore, the respondent was in an unauthorized occupation

thereafter under Section 2(g) of the Act. Notice as required, under Section 4

of the Public Premises Act was given. The respondent had no acceptable

defence. The premises were no longer being used properly. That being so,

the order of eviction was fully justified as also the order passed by the District

Judge dismissing the appeal.

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18. The Single Judge of the Rajasthan High Court, therefore, clearly

erred in holding that a notice of 15 days ought to have been given in the

present case to terminate the authority of the respondent on the concerned

premises. The provisions of Sections 106 and 107 of Transfer of Property Act

could not be applied to the present case on that count since the premises

were covered under a special act which will prevail as against a general

enactment. The Division Bench also having accepted that the respondent

was in an unauthorized occupation, erred in insisting that a 15 days' notice

was necessary.

19. In the circumstances, this Civil Appeal is allowed. The orders

passed by the Division Bench of the Rajasthan High Court dated 17.5.2002 in

Civil Special Appeal (Writ) No.753/1993 as well as the order dated 13.8.1991

passed by the Single Judge in Writ Petition No.5281/1991 are set aside.

Appeal No.753/1993 filed before the Division Bench will stand allowed and

Writ Petition No.5281/1991 filed by the respondent before the Single Judge

will stand dismissed. The order passed by the Estate Officer dated 26.6.1991

as upheld by the District Judge, Ajmer is hereby confirmed.

20. The appeal is allowed accordingly, though, without any order as

to costs.

..................................J. (P. Sathasivam )

......................................J.

( H.L. Gokhale )

New Delhi

Dated: May 13, 2011.