Hon'ble Vivek Kumar Birla,J.
Heard Sri Anil Kumar Bajpai, learned counsel for the petitioner, Sri Gyan Prakash, learned Assistant Solicitor General of India for respondents no.1, 2 and 3 along with Sri Ravi Prakash Srivastava and Sri Mohd. Isha Khan, who has accepted notice for respondent no.4.
The proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "PP Act") have been challenged by the petitioner-University contending that the provisions of the PP Act does not apply and the jurisdiction of the Estate Officer is completely excluded keeping in view the nature of the occupancy which is admittedly not unauthorised.
Learned counsel for the petitioner submits that the land was acquired and handed over to the University and the petitioner-University has nowhere raised any constructions or occupied any land beyond the area that was acquired and given to the University. The petitioner-University is, therefore, neither an encroacher nor an unauthorised occupier so as to fall within the definition of the the PP Act. Even otherwise, the petitioner-University is a public statutory body and the respondents cannot raise the dispute under the PP Act for the purpose of eviction of the petitioner-University from the land in dispute.
Sri Bajpai, learned counsel for the petitioner, has relied on the Apex Court judgment in the case of Thirumala Tirupati Devasthanams and another Vs. Thallappaka Ananthacharyulu and others, 2003 (8) SCC Page 134 and the Division Bench judgment of the Delhi High Court in the case of Mrs. Nisha Vs. Punjab National Bank, AIR 2000 Delhi Page 439 to substantiate his submissions.
We have considered the aforesaid submissions and we find that so far as the Division Bench judgment of the Delhi High Court is concerned, the same was by a private person in relation to a bank and there it has been held that since the Rent Control Act applies, therefore, the PP Act would not be applicable. In the circumstances, the ratio of the aforesaid judgment does not get attracted on the facts of the present case. Sri Bajpai, on the other hand, submits that the definition of the "unauthorised occupants" has been clearly elucidated which excludes the petitioner-University from such definition and, therefore, the entire proceedings are without jurisdiction. The said definition may have to be considered on the peculiar facts of this case separately to resolve the issue of jurisdiction. It is in this background that he pleads that a writ of prohibition be issued for the said purpose.
Relying upon paragraph 14 of the judgment in the case of Thirumala Tirupati Devasthanams (supra), learned counsel for the petitioner submits that a writ of prohibition would be available on the facts of the present case. To appreciate the said argument paragraph 14 is extracted hereinunder :-
14. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior court or tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of the rules of natural justice, (c) proceeds to act under law which is itself ulra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights. The principles, which govern the exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a cloak of an appeal in disguise". Lax use of such a power would impair the dignity and integrity of the subordinate court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate court. It was not even argued that there was total lack of jurisdiction in the civil court. It could not be denied that the civil court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The civil court had jurisdiction to decide whether the suit was barred by Section 14 of the said Act or on the principles of res judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not have prevented the court of competent jurisdiction from deciding these questions. In other words, the High Court should not usurp the jurisdiction of the civil court to decide these questions. In the impugned judgment no reason, much less a cogent or strong reason, has been given as to why the civil court could not be allowed to decide these questions. The impugned judgment does not state that the civil court had either proceeded to act without or in excess of jurisdiction or that it had acted in violation of the rules of natural justice or that it had proceeded to act under law which was ultra vires or unconstitutional or proceeded to act in contravention of the fundamental rights. The impugned judgment does not indicate as to why the High Court did not consider it expedient to allow the civil court to decide on questions of maintainability of the suit or its own jurisdiction. The impugned judgment does not indicate why the civil court be not allowed to decide whether the suit was barred by virtue of Section 14 of the said Act or on the principles of res judicata/estoppel. To be remembered that no fundamental right is being violated when a court of competent jurisdiction is deciding, rightly or wrongly, matters before it."
From the record we find that the issue with regard to jurisdiction is clearly dependent upon the factum of the alleged encroached area. Whether the petitioner-University is in occupation of any land that belongs to the respondents-Army authorities or not is a question of fact and the jurisdiction would be dependent upon any such finding. Consequently, the issue of jurisdiction is clearly dependent upon the factum of discovery of the alleged encroachment which is in dispute. This issue of not attracting the provisions of the PP Act has already been raised in paragraph 8 of the reply submitted by the petitioner. Learned counsel for the petitioner submits that inspite of this the Estate Officer has given only three options in the final notice without taking care to notice the issue of jurisdiction.
We, on the strength of the principles laid down by the Apex Court extracted hereinabove, are of the opinion that a writ of prohibition on the facts of the present case would not be desirable at this stage keeping in view the fact that the issue has been raised and the Estate Officer would be obliged to decide the said issue in the light of the allegations made in the objections as also on the law as applicable to the controversy. The issue as to whether it was an acquisition which already stands concluded by handing over the land to the University and as to whether the University has subsequently occupied or encroached upon, being a question of fact has to be decided while assuming jurisdiction under the PP Act.
Consequently, we dispose of this writ petition with a direction to the Estate Officer to take notice of the aforesaid objections and decide first the issue of jurisdiction and then dispose of the matter in accordance with law within a period of three months' from the date of production of a certified copy of this order before him, in case no final orders have been passed till today.
A copy of this order be provided to the learned counsel for the petitioner on payment of usual charges within twenty four hours.
Order Date :- 15.9.2014 Anand Sri./-