Court No. - 53
Case :- SECOND APPEAL No. - 1101 of 2019
Appellant :- D.D. Kashyap
Respondent :- Union Of India And 2 Others Counsel for Appellant :- Lalit Kumar
Hon'ble Vivek Agarwal,J.
Heard Sri Lalit Kumar, learned counsel for the appellant.
This Second Appeal has been filed by the plaintiff- appellant being aggrieved by the judgment and decree dated 31.08.2019 passed by the Additional District Judge, Court No.2, Moradabad in Civil Appeal No.37 of 2019, D.D. Kashyap Vs. Union of India and others dismissing the appeal arising out of judgment and decree dated 18.04.2019 passed by the Additional Civil Judge (Sr. Division)/S.C.C. Court, Moradabad in original Suit No.372 of 2004.
Appellant's contention is that plaintiff had filed a suit for permanent injunction claiming that he was in possession of the suit property for over 20 years as his father was an employee of the Indian railways and during such employment, he was allotted a House No.H354/G which was changed to House No.H195/G. It is plaintiff's contention that the plaintiff was always residing with his father and being unemployed, had established a small shop in the name and style of Kashyap Cycle and Electric Store within the knowledge of defendant Nos.1 and 2. He is earning his livelihood through such shop and in the year 1989 defendant Nos.1 and 2 had tried to evict him from such shop and had damaged his shop but he was given to understand by the defendant Nos.1 and 2 that they will get him an alternate shop allotted through the Department.
All of a sudden, on 31.10.2003, defendant no.2 issued a notice to the plaintiff asking him to appear on 01.12.2003 and file his reply. It is plaintiff's contention that he had reached the Office of defendant No.2 but his reply was not accepted and thereafter illegally invoking the provisions of the Public Premises Eviction of Unauthorized Occupants Act, 1971, eviction order was passed against the plaintiff.
Plaintiff's submission is that both the Court's below have dismissed the suit treating it to be barred by the provisions contained in Section 15 of the Public Premises Eviction of Unauthorized Occupants Act, 1971, which bars jurisdiction of Civil Court to entertain any suit or proceeding in respect of the eviction of any person who is unauthorized occupant of any public premises or removal of any building structure or fixture or goods, cattle or any other animal from any public premises under Section 5-A and other exigencies enumerated in sub-Sections-(a) to (e).
Learned counsel submits that both Courts below erred in not appreciating the fact that the property of which plaintiff is in settled possession, is not public premises as defined under Section 2(e) of the Act of 1971 and therefore he could not have been termed to be an unauthorized occupant as defined under Clause-g of Section-2 of the Act of 1971 and therefore once the provisions of the Act of 1971 are not attracted then bar under Section 15 could not have been applied to the facts and circumstances of the case.
Provisions contained in Section 2(e) as amended by Act 1961 of 1980 reads as under:-
Section 2(e) "public premises" means-
“(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of,—
(i) any company as defined in section 3 of the Companies Act, 1956 (1 of 1956), in which not less than fifty-one per cent. of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first- mentioned company;
(ii) any corporation (not being a company as defined in section 3 of the Companies Act, 1956 (1 of 1956) or a local authority) established by or under a Central Act and owned or controlled by the Central Government;
[(iii) any company as defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 2013) in which not less than fifty-one per cent. of the paid-up capital is held partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary (within the meaning of that Act) of the first-mentioned company and which carries on the business of public transport including metro railway.
Explanation.—For the purposes of this item, “metro railway” shall have the same meaning as assigned to it in clause (i) of sub-section (1) of section 2 of the Metro Railway (Operation and Maintenance) Act, 2002 (60 of 2002);
(iii-a) any University established or incorporated by any Central Act.
(iv) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961);
(v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (38 of 1963);
(vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when re-named as the Bhakra-Beas Management Board under sub-section (6) of section 80 of that Act; [***] [(vii) any State Government or the Government of any Union Territory situated in the National Capital Territory of Delhi or in any other Union Territory;
(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and] religious function."
(3) in relation to the [National Capital Territory of Delhi],—
(i) any premises belonging to the5[Council as defined in clause (9) of section 2 of the New Delhi Municipal Council Act, 1994 (44 of 1994) or Corporation or Corporations notified under sub-section (1) of section 3 of the Delhi Municipal Corporation Act, 1957 (66 of 1957),] of Delhi, or any Municipal Committee or notified area committee, [***]
(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority;] [and], [(iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union Territory,] [(iv) any premises belonging to, or taken on lease by, or on behalf of any Government company as defined in clause (45) of section 2 of the Companies Act, 2013 (18 of 2013).
Explanation.—For the purposes of this clause, the expression “State Government” occurring in clause (45) of the said section shall mean the Government of the National Capital Territory of Delhi;] [(4) any premises of the enemy property as defined in clause (c) of section 2 of the Enemy Property Act,1968(34of1968);]”
Similarly unauthorized occupation as defined in Section 2(g) reads as under:-
Section 2(g) unauthorized occupation means-
"in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
Conjointly reading of definition of “public premises” with “unauthorized occupation”, leads no iota of doubt that Railways being an instrumentality of the Central Government is covered under the definition of ‘public premises’ as defined in Section 2(e)(1) of the Act of 1971. Similarly appellant being not a licensee/lesee/allottee of the said land by the owner of such land, his case is covered by the definition of unauthorized occupation as provided in Section 2(g) of the Act of 1971.
Thus, provisions of Section 15 of the Act of 1971 which bars jurisdiction of the Civil Court have been rightly applied by the Trial Court and affirmed by the first Appellate Court.
There is no force in the argument advanced by the learned counsel for the appellant as discussed above and enumerated above that the said premises cannot be termed as public premises and therefore appellant was not in unauthorized occupation and thus the bar of Section 15 will not be applicable therefore the appeal fails and is, accordingly, dismissed.
Order Date :- 26.11.2019 Ashutosh