JAMIA MILLIA ISLAMA
Public Premises Act Land Laws Harshvardhan
Contents Acknowledgement ........................................................................................ 4 Introduction ................................................................................................... 5 Important Importa nt Definitions Definiti ons ................................ ............... ................................. ................................ ................................ .................... .... 7 Estate Officers Off icers ................................ ............... ................................. ................................ ................................. ............................. ............ 13 Powers of Estate Officers .................. ............................ ................... ................... ................... ................... ................... .........15 Section 4. Issue of notice to show cause against order of eviction ........ ........ 15 Section 5. Eviction of unauthorised occupants .................. ............................ .................... ............ 17 3A. Eviction from temporary occupation .................... .............................. ................... ................. ........19 5A. Power to remove unauthorised un authorised constructions, etc ................... ........................... ........20 5C. Power to seal unauthorised constructions ............. ....................... ................... ................. ........21 5E. Order of demolition of unauthorised construction ................... ........................... ........22 6. Disposal of property left on public premises by unauthorised occupants ......................................................................................................... 24 7. Power to require payment of rent or damages in respect of public premises ................ ......................... ................... ................... ................... ................... ................... ................... ................... .................... .............. ....26 8. Power of estate officers................... ............................ ................... ................... ................... .................... .............. ....27 Section 10. Finality of orders ................... ............................ ................... ................... .................. ................... ..........28 2
Contents Acknowledgement ........................................................................................ 4 Introduction ................................................................................................... 5 Important Importa nt Definitions Definiti ons ................................ ............... ................................. ................................ ................................ .................... .... 7 Estate Officers Off icers ................................ ............... ................................. ................................ ................................. ............................. ............ 13 Powers of Estate Officers .................. ............................ ................... ................... ................... ................... ................... .........15 Section 4. Issue of notice to show cause against order of eviction ........ ........ 15 Section 5. Eviction of unauthorised occupants .................. ............................ .................... ............ 17 3A. Eviction from temporary occupation .................... .............................. ................... ................. ........19 5A. Power to remove unauthorised un authorised constructions, etc ................... ........................... ........20 5C. Power to seal unauthorised constructions ............. ....................... ................... ................. ........21 5E. Order of demolition of unauthorised construction ................... ........................... ........22 6. Disposal of property left on public premises by unauthorised occupants ......................................................................................................... 24 7. Power to require payment of rent or damages in respect of public premises ................ ......................... ................... ................... ................... ................... ................... ................... ................... .................... .............. ....26 8. Power of estate officers................... ............................ ................... ................... ................... .................... .............. ....27 Section 10. Finality of orders ................... ............................ ................... ................... .................. ................... ..........28 2
Section 12. Power to obtain information ............... ........................ ................... .................... .............. ....28 Section 13. Liability of heirs and legal representatives .................. .......................... ........29 Section 14. Recovery of rent, etc., as a s an arrear of land revenue ............ ............ 30 Section 15. Bar of jurisdiction ................. .......................... ................... ................... .................. ................... ..........30 Section 16. Protection of action taken in good faith.................. ............................ ............. ... 32 Remedies ..................................................................................................... 33 Section 9. Appeals .................................................................................. 33 Offences and Penalty .................................................................................. 37 Section 11. Offences and penalty .................. ........................... ................... ................... ................... ............. ... 37 Section 11A. Offences under section 11 to be cognizable .................... ...................... 38 The Case of Suhas H. Pophale v. Oriental Insurance Co. Ltd. ................... ...................40 THE
PUBLIC
PREMISES
(EVICTION
OF
UNAUTHORISED
OCCUPANTS) AMENDMENTS ACT, 2015 ........................ .................................. ................... ................. ........43 Bibliography ............................................................................................... 47 Primary Primar y Sources ................................. ................ ................................. ................................ ................................ ..................... ..... 47 Web Sources ........................................................................................... 47
3
Acknowledgement Acknowledgement I am grateful to Almighty for all the strength he gave me during the compilation of this project. I am greatly thankful to my parents, for their presence is always encouraging. I would like to thank Dr. Kahkashan Y. Danyal
for his valuable
guidance and suggestions without which this project would not have reached a comprehensive completion. Special thanks to the Library staff for providing assistance in the collection of relevant study material during the compilation of this project. Sincere thanks to all the faculty members for making the faculty a conducive place for learning and academic pursuit. Heartfelt thanks to my classmates as well for their ever-helpful attitude.
Harshvardhan Section-B Roll No. 10
4
Introduction Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is a special statute relating to eviction of unauthorised occupants from public 1
premises.
Central Government provides residential accommodation to its employees ,
Members
of
Parliament
and
other
high
dignitaries
.
Residential
accommodation is allotted to them while they are in service or till the term of their office. It also provides temporary occupation of Guest Hostels , Holiday Homes , Tourist accommodation etc. After the retirement of the employees and officers or after the expiry of the term of the Members of Parliament the accommodation provided to them is to be vacated and surrendered to the Government. This facility was being misused by the employees , officers and even by the Members of Parliament and other high dignitaries by either not vacating or overstaying in the residential accommodation and not surrendering it to the Government. Similarly temporary occupation of Guest Hostels , Holiday Homes, Tourist accommodation etc. is to be vacated at the expiry of the term of allotment.
1
Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 65 7.
5
To evict such unauthorised occupants the only course open was to file civil suits which was quite dilatory. To expedite eviction of such unauthorised occupants a Bill was introduced in the Parliament which was passed by both the Houses . It came on the Statute Book after getting assent from President on 23rd August,
1971
as
'THE
PUBLIC
PREMISES
(EVICTION
OF
UNAUTHORISED OCCUPANTS) ACT, 1971 (40 OF 1971)''. As per its preamble, it is “an act to provide for eviction of unauthorised occupants from public premises and for certain incidental matters” such as removal of unauthorised construction, recovery of arrears of rent etc. It came into force on 23.8.1971, but Section 1(3) thereof states that it shall be deemed to have come into force on 16.9.1958, except Section 11 (on offences and penalty) and Sections 19 and 20 (on repeal and validation). This is because from 16.9.1958, its predecessor Act viz. The Public Premises (Eviction of Unauthorised Occupants) Act (32 of 1958) was in force for similar purposes, and which was repealed by the above referred Section 19 of the 1971 Act. 2
2
Ibid.
6
Important Definitions THE
PUBLIC
PREMISES
(EVICTION
OF
UNAUTHORISED
OCCUPANTS) ACT, 1971 provides for the eviction of unauthorised occupants from public premises. It extends to the whole of India. Some of the important definitions given in the act are given in section 2 of the Act as follows:Section 2 (b) "Estate Officer" means an officer appointed as such by the Central Government under section 3; Section 2 (c) "premises" means any land or any building or part of building and includes,the garden, grounds and outhouses, if any , appertaining to such building or part of a building, and any fittings a fixed to such building or part of a building for the more beneficial enjoyment thereof. Section 2(d) "Prescribed" means prescribed by rules made under this Act. Section 2(e) "public premises" means-
7
(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, 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, in which not less than fifty -one per cent, of the paid up share capita) is held by the Central Government or any company which is a subsidiary (within the meaning of that Art) of the firstmentioned company .
(ii)
any corporation (not being a company as company as defined in section 3 of the Companies Act, 1956 or a local authority ) established by or under a Central Act and owned or controlled by the Central Government,
(iii)
any University established or incorporated by any Central Act.
(iv)
any Institute incorporated by the Institutes of Technology Act, 1961.
8
(v)
any Board of Trustees constituted under the Major Port Trusts Act, 1963.
(vi)
the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 and that Board as and when renamed 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 in relation to the National Capital Territory of Delhi:-
(ix)
any premises belonging to the Municipal Corporation of Delhi, or any municipal committee or notified area committee,
(x)
any premises belonging to the Delhi Development Authority , whether such premises are in the possession of, or leased out by , the said Authority ; and
(xi)
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 .
9
It has been held by the Supreme Court that the nationalized bank is a corporation established by a Central Act and it is owned and controlled by the Central Government. The premises belonging to nationalized bank are public premises. It has been further laid down that both residential and commercial premises are contemplated under the Act. Occupation by tenant who is holding over such public premises is an unauthorized occupant and the contention that the Estate Officer is not required by Act to be an officer well versed in law has been held to be unsustainable.
3
It has been held that the term 'belonging to' used in section 2(e) (i) of the Act on a plain grammatical construction will include the concept of ownership.
4
It has been held that premises belonging to Cantonment Board are not public premises.5 Section 2 (f) "rent", in relation to any public premises, means the consideration payable periodically for the authorised occupation of the premises, and includes1. any charge for electricity , water or any other services in connection with the occupation of the premises,
3
Ashoka Marketing Ltd. v. Punjab National Bank - AIR 1991 SC 855. Naresh Kumar v. VI th Addl. District Judge; Varanasi 1991(1) RCJ 33 (Allahabad). 5 M .S. Hussain v. VII Additional District & Session Judge, Kanpur 1989 (2) RCJ 287. 4
10
2. any tax (by whatever name capayable in respect of the premises, where such charge or tax is payable by the Central Government or the corporate authority. It has been held that fixation of fair rent is out of the purview of the Act.
6
Section 2(fa) "statutory authority" , in relation to the public premises referred to in clause (e) of this section, means,1. in respect of the public premises placed under the control of the Secretariat of either House of Parliament, the Secretariat of the concerned House of Parliament. 2. in respect of the public premises referred to in item (i) of subclause (2) of that clause, the company or the subsidiary company , as the case may be, referred to therein, 3. in respect of the public premises referred to in item (ii) of subclause (2) of that clause, the corporation referred to therein. 4. in respect of the public premises referred to, respectively , in items (iii), (iv), (v) [(vi) and (vii) of subclause (2) of that clause, the University , Institute or Board, as the case may be, referred to therein, and (v) in respect of the public premises referred to in sub-clause (3) of that clause, the Corporation,
6
Bharar Gold Mines v. Kannappa 1989 (I)RCJ 154.
11
Committee or Authority , as the case may be, referred to in that sub-clause. Section 2 (fb) "temporary occupation" , in relation to any public premises, means occupation by any person on the basis of an order of allotment made under the authority of the Central Government, a State Government, the Government of a Union Territory or a Statutory Authority for a total period (including the extended period, if any ) which is less than thirty days. Section 2 (g) "unauthorised occupation" , 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 of any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.
12
Estate Officers The Act provides for appointment of Estate officers which have been given a wide range of Powers under the Act. Section 3 of the Act states as follows:-
3. Appointment of Estate Officers .-The Central Government may , by notification in the Official Gazette,(a) appoint such persons, being Gazetted Officers of Government '[or of the Government of any Union Territory ) or officers of equivalent rank of the Z1Statutory Authority , as it thinks fit, to be Estate Office as for the purposes of this Act; Provided that no officer of the Secretariat of the Rajya Sabha shall be so appointed except after consultation with the Chairman of the Rajya Sabha and no officer of the Secretariat of the Lok Sabha shall be so appointed except after consultation with Speaker of the Lok Sabha: Provided further that an officer of a Statutory Authority shall only be appointed as an Estate Officer in respect of the public premises controlled by that authority ; and
13
(b) define the local limits within which, or the categories of public premises in respect of which, the Estate Officers shall exercise the powers conferred, and perform the duties imposed, on Estate Officers by or under this Act. The words used under clause (a) of section 3 "as it thinks fit" are indicative of the fact that decision as to which person shall be treated by the Central Government to be of equivalent rank of a Gazetted Officer of the Government it is the subjective satisfaction of the Central Government alone which is relevant. Any other interpretation will make the said words "as it thinks fit" redundant. 7
7
Mumtaz Ali Khan v. Aligarh Muslim Univ 1987 ALLJ 960.
14
Powers of Estate Officers Under the Act the Estate officers have been conferred a wide range of powers for efficient implementation of the Act.
Section 4. Issue of notice to show cause against order of eviction:-(l) if the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The ;notice shall — (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say , all persons who are, or may be in occupation of, or claim interest in, the public premises;(i) to show cause, if any , against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and
15
(ii) to appear before the Estate Officer on the date specified in the notice a long with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired. (iii) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in Such other manner as may be prescribed, whereupon the notice shall be deemed to have been duty given to all persons concerned. It has been held that the older of eviction is liable to be set aside if the notice for eviction did not set out the particulars of the premises clearly.
8
It has also been held that while proceeding under this section the Estate Officer must hold an enquiry. Principles of natural justice have to be complied with and the tenant has the right to present and defend his case and of being beard.9 It has been further held that where determination on jurisdictional bet as to whether certain premises in question are public premises or not raises complicated issue of title with respect proceeding to get the matter adjudicated upon by a court of competent civil jurisdiction.
8
10
Bhagat Singh v. DDA 1988(1) Rent Control Reporter 671 (Delhi). M/s Blaze & Central (Pvt.) Ltd. v. Union of India AIR 1980 Karnataka 86. 10 M/s. Bharat Coking Coal Ltd. v. Estate Officer AIR 1991 NOC 3 (Patna). 9
16
Where the lease is determined by the landlord by a notice under section 106 of the Transfer of Property Act the occupant became an unauthorized occupant and was liable to be evicted under the Public Premises Act.
11
Section 5. Eviction of unauthorised occupants -(l) If, after considering the cause, if any , shown by any person in pursuance of a notice under section 4 and '[any evidence produced by him in support of the same and after personal hearing, if any , given under clause (b) of sub-section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction before the date specified in the said order or within fifteen days of the da te of its publication under sub-section (1), whichever is later.] the estate officer or any other officer duly authorised by the estate officer in his behalf [may , after the date so specified or after the expiry of the period aforesaid, whichever is later,
11
M /s Jain Ink Manufacturing Co. v. Life I nsurance Corporation of India Air 19 81 SC670.
17
evict that person] from, and take possession of, the public premises and may , for that purpose, use such force as may be necessary . It has been held that there is no conflict between section 5 and Rule 4 of the Public Premises (Eviction of Unauthorized Occupants) Rules 1971 framed under section 18 of the Act which provide for personal service of the eviction order passed by the Estate Officer on the person to whom it is intended or on any other adult member of the family etc, inter all a, other modes of service stipulated in the Act. 12 Where New Delhi Municipal Committee was liable to rectify the water seepage and defective fire equipment in the space allotted in Palika Parking to make it habitable, the licensee is not liable to pay licence fee until the aforesaid defects are removed. Notices issued by N.D.M .C. were quashed. 13 It has been held that where determination on jurisdictional fact as to whether certain premises in question are public premises or not raises complicated issues of title with respect thereto the Estate Officer can leave it to the parties to the proceedings to get the matter adjudicated upon by a court of competent civil jurisdiction. 14
12
Pushpa Glover v. D.D. A. 41 (1990) Delhi Law Times 171. Rajinder Prasad Jain v. N.D.M .C. 39 (1959) Delhi Law Times 138 14 M /s Bharat Coking Coal Ltd. v. State Officer Air 1991 Noc 3 (Patna) 13
18
The question as to whether in a given case a person is unauthorized occupation of public premises has to be decided by the Estate Officer and the same cannot be adjudicated in proceedings initiated under Article 226.
15
It has been held that a lessee is entitled to recover rent from sub-lessee till such time an order of eviction is enforced. 16 Where shops were allotted on licence on the condition that the licensee would operate personal business therein but the licensee commenced partnership business, termination of licence is legal and he is liable to be 17
evicted.
3A. Eviction from temporary occupation .- Not withstanding anything contained in section 4 or section 5, if the Estate Officer, after making such inquiry as he deem expedient in the circumstances of the case, is satisfied that any persons who were allowed temporary occupation of any public premises are in unauthorised occupation of the said premises, he may , for reasons to be recorded in writing, make an order for the eviction of such persons forthwith and thereupon, if such persons refuse or fail to comply with the said order of eviction, he may evict them from the premises and take possession thereof and may , for that purpose, use such force as may be necessary .
15
Baij Nath v. Bank of Maharashtra 1987 (1) Rent Control Reporter 685 (Delhi) In Re Ganesh Trading Co. Pvt. Ltd. 1985 (1) Rent Control Reporter 58. 17 Suresh Chander Vohra v. Union of India -1987(1) Rent Control Reporter 630. 16
19
5A. Power to remove unauthorised constructions, etc . :---(l) No person shall(a) erect or place or raise any building or [any movable or immovable structure or fixture, (b) display or spread any goods, (c) bring or keep my cattle or other animal. on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises. (2) Where any building or other immovable structure or fixture has been created, placed or raised on any public premises in contravention of the provisions of sub-section (1), the estate officer may serve upon the person erecting such building or other structure or fixture, a notice requiring him either to remove, or to show cause why he shall not remove such building or other structure or fixture from the public premises within such period, not being less than seven days, as he may specify in the notice; and on the omission or refusal of such person either to show cause, or to remove such building or other structure or fixture from the public premises, or where the cause shown is not, in the opinion of the estate officer, sufficient, the estate officer may , by order, remove or cause to be removed the building or other structure or fixture from
20
the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue. (3) Where any movable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept, on any public premises, in contravention of the provisions of sub-section (1) by any person, the estate officer may, by order, remove or cause to be removed without notice, such structure, fixture, goods, cattle or other animal, as the case may be, from the public premises and recover the cost of such removal from such person as an arrears of land revenue.
5C. Power to seal unauthorised constructions .--(l) It shall be lawful for the estate officer, at any time, before or after making an order of demolition under section 5B, to make an order directing the sealing of such erection or work or of the public premises in which such erection or work has been commenced or is being carried on or has been completed in such manner as may be prescribed, for the purpose of carrying out the provisions of this Act, or for preventing any dispute as to the nature and extent of such erection or work. (2) Where any erection or work or any premises in which any erection or work is being carried on has, or have been sealed, the estate officer may, for the purpose of demolishing such erection or work in accordance with the provisions
21
of this Act, order such seal to be removed. (3) No person shall remove such seal except(a) under an order made by the estate officer under sub-section (2); or (b) under an order of the appellate officer made in an appeal under this Act.
5E. Order of demolition of unauthorised construction -(l) Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed on any public premises by any person in occupation of such public premises under an authority (whether by way of grant or any other mode of transfer), and such erection of building or execution of work is in contravention of, or not authorised by , such authority , then, the estate officer may , in addition to any other action that may be taken under this Act or in accordance with the terms of the authority aforesaid, make an order, for reasons to be recorded therein, directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced, or is being carried on, or has been completed, within such period, as may be specified in the order] Provided that no order under this sub-section shall be made unless the person concerned has been given by means of notice [of not less than seven days] served in the prescribed manner, a reasonable opportunity of showing cause why such order should not be made. 22
(2) Where the erection or work has not been completed, the estate officer may , by the same order or by a separate order, whether made at the time of the issue of the notice under the proviso to sub-section (1) or at any other time, direct the person at whose instance the erection or work has been commenced, or is being carried on, to stop the erection or work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under section 9. (3) The estate officer came every order made under sub-section (1), or, as the cure may be, under subsection (2) to be affixed on the outer door, or some other conspicuous part, of the public premises. (4) Where no appeal has been preferred against the order of demolition made by the estate officer under subsection (1) or where an order of demolition made by the estate officer under that sub-section has been confirmed on appeal, whether with or without variation, the person against whom the order has been made shall comply with the order within the period specified therein, or, as the case may be, within the period, if any , fixed by the appellate officer on appeal, and, on the failure of the person to comply with the order within such period. the estate officer or any other officer duly authorised by the estate officer in this behalf, may cause the erection or work to which the order relates to be demolished.
23
(5) Where an erection or work has been demolished, the estate officer may , by order, require the person concerned to pay the expenses of such demolition within such time, and in such number of instalments, as may be specified in the order.
6.
Disposal
of
property
left
on
public
premises
by
unauthorised occupants:-(1) Where any persons have been evicted from any public premises under section 5, [or where any building or other work has been demolished under section 5B] the estate officer may , after giving fourteen days’ notice to the persons from whom possession of the public premises has been taken and after publishing the notice in at least one newspaper having circulation in the locality , remove or cause to be removed or dispose of by public auction any property remaining on such premises. (1A) Where any goods, materials, cattle or other animal have been removed from any public premises under section 5A, the estate officer may , after giving fourteen days' notice to the persons owning such goods, materials, cattle or other animal and after publishing the notice in at least one newspaper having circulation in the locality , dispose of, by public auction, such goods, materials, cattle or other animal. (1B) Notwithstanding anything contained in sub-sections (1) and (1A), the giving or publication of any notice referred to therein shall not be necessary in
24
respect of any property which is subject to speedy and natural decay , and the estate officer may , after recording such evidence as he may think fit, cause such property to be sold or otherwise disposed of in such manner as he may think fit. (2) Where any property is sold under sub-section (1), the sale proceeds thereof hall, after deducting the expenses of the sale and the amount, if any , due to the Central Government or the [statutory authority ] on account of arrears of rent or damages or costs, be paid to such person or persons as may appear to the estate officer to be entitled o the same: Provided that where the estate officer is unable to decide as to the person or persons or whom the balance of the a mount is payable or as to the apportionment of the same, he may refer such dispute to the civil court of competent jurisdiction and the decision of the court thereon shall be final. 2A) The expression "costs", referred to in sub-section (2), shall include the cost of removal recoverable under section 5A and the cost of demolition recoverable under; section 5B. It has been held that an order under this section calling upon occupants to vacate the premises cannot straightaway be passed without passing an eviction order envisaged under section 5 (1).
18
18
D. Nagarajn v. Union of India AIR 1991 Karnataka 60
25
7. Power to require payment of rent or damages in respect of public premises:-(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may , by order, require that person to pay the same within such time and in such installments as may be specified in the order. (2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may , by order, require that person to pay the damages within such time and in such instalments as may be specified in the order. (2A) While making an order under sub-section (1) or sub-section (2) the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with simple interest at such rate as may be prescribed, not being a rate exceeding the current rate of interest within the meaning of the Interest Act, 1978. (3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such
26
order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer. It has been held that it the Government fails to prove its ownership of alleged premises from which it has sought eviction of the unauthorized occupant, then it cannot claim damages. 19 If the Government land is in unauthorised occupation aid is used for religious purposes then the damages which are recoverable on that account are not to be commensurated with damages liable to be charged with respect to 20
unauthorized occupation for commercial user.
It has been held by theSupreme Court that time barred rent cannot be recovered under section 7.21
8. Power of estate officers: -An estate officer shall, for the purpose of holding any inquiry under this Act, have the s ame powers as ate vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely :-(a) summoning and enforcing the attendance of any person and examining him on oath;
19
Union of India v. I. S. Goyal & Co . 1991 Rajdhani Law Reporter (Note) (DB) 160. S.S. Sanatan Dharam Singh v. Estate Officer 1973 RLR (Note) 54. 21 New Delhi Municipal Committee v. Kalu Ram Air 1976 Supreme Court 1637. 20
27
(b) requiring the discovery and production of documents; (c) any other matter which may be prescribed. The estate officer will not be entitled to refuse an application to issue summon on the ground that it might cause delay in the trial or that the application is too vague.22
Section 10. Finality of orders :-Save as otherwise expressly provided in this Act, every order made by an estate officer or appellate officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
Section 12. Power to obtain information :- If the estate officer has reason to believe that any persons are in unauthorised occupation of any public premises, the estate officer or any other officer authorised by him in this behalf may require those persons or any other person to furnish information relating to the names and other particulars of the persons in occupation of the public premises and every person so required shall be bound to furnish the information in his possession.
22
.SK Murthy v. B Rao AIR 1973 AP 309.
28
Section 13. Liability of heirs and legal representatives:- (l) Where any person against whom any proceeding for the determination of arrears of rent or for the assessment of damages [or for the determination of the amount payable by way of interest on such arrears of rent or damages] is to be or has been taken dies before the proceeding is taken or during the pendency thereof, the proceeding may be taken, as the case may be, continued against the heirs or legal representatives of that person. (IA) Where any person from whom any cost of removal of any building or other structure or fixture, or, as the case may be, any goods, cattle or other animal is to be recovered under sub-section (2) [or sub-section (3)] of section 5A, or any expenses of demolition are to be recovered under sub-section (5) of section 5B, dies before any proceeding is taken for the recovery of such cost or during the pendency thereof, the proceeding may be taken or, as case may be continued against the heirs or legal representatives of that person. (2) Any amount due to the Central Government or the [statutory authority ] from any person whether by way of arrears of rent or damages or costs of removal referred to in section 5A or expenses of demolition referred to in section 5B or interest referred to in sub-section (2A) of section 7 or any other cost shall, after the death of the person, be payable by his heirs or legal representatives but their liability shall be limited to the extent of the assets of the deceased in their hands. 29
Section 14. Recovery of rent, etc., as an arrear of land revenue:- If any person refuses or fails to pay the expenses of demolition payable under sub-section (5) of section 5B or the arrears of rent payable under sub-section (1) of section 7 or the damages payable under sub-section (2) or the interest determined under sub-section (2A) of that section or the costs awarded to the Central Government or the [statutory authority] under subsection (5) of section 9 or any portion of such rent, damages, expenses, interest) or costs; within the time, if any , specified therefore in the order relating thereto, the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as arear of land revenue. For realisation of the amounts due an order under section 14 is the condition precedent. In the absence of such an order for recovery the collector cannot proceed to recover the amouot as arrears of land revenue.
23
Section 15. Bar of jurisdiction :- No court shall have jurisdiction to entertain any suit or proceeding in respect of; (a) the eviction of any person who is in unauthorised occupation of any public premises, or
23
S.V. Motwani v. Collector of Delhi AIR 1974 Del 56.
30
(b) the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under section 5A, or (c) the demolition of any building or other structure made, or ordered to be made, under section 5B, or (cc) the sealing of any erection or work or of any public premises under section 5C, or (d) the arrears of rent payable under sub-section (1) of section 7 of damages payable under sub-section (2), or interest payable under sub-section (2A), of that section, or (e) the recovery of; (i) costs of removal of any building, structure or fixture or goods, cattle or other animal under section 5A, or (ii) expenses of demolition under section 5B, or (iii) costs awarded to the Central Government or statutory authority under sub-section (5) of section 9, or any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority .
31
Section 16. Protection of action taken in good faith :-No. suit, prosecution or other legal proceeding shall lie against the Central Government or the statutory authority or the appellate officer or the estate officer in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or orders made thereunder.
32
Remedies Although the Act gives wide powers to the Estate officers, it also provides with the Remedies which can be resorted to by an aggrieved person.
Section 9. Appeals. – (1)An appeal shall lie from every order of the estate officer made in respect of any public premises under section 5 of section 5B or section 5C or section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the district judge may designate in this behalf. (2) An appeal under sub-section (1) shall be preferred:(A) in the case of an appeal from an order under section 5. [within twelve days] from the date of publication of the order under sub-section (1) of that section; (B) in the case of an appeal from an order [under section 5B or section 7, within twelve days] from the date on which the order is communicated to the appellant; and (C) in the case of an appeal from an order under section 5C, within twelve days from the date of such order.
33
Provided that the appellate officer may entertain the appea1 after the expiry of the said period, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time, (3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit: [Provided that where the construction or erection of any building or other structure or fixture or execution of any other work was not completed on the day on which an order was made under section 5E for the demolition or removal of such building or other structure or fixture, the appellate officer shall not make any order for the stay of enforcement of such order, unless such security , as may be sufficient in the opinion of the appellate officer, has been given by the appellant for not proceeding with such construction, erection or work pending the disposal of the appeal. (4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible. (5) The costs of any appeal under this section shall be in the discretion of the appellant officer. (6) For the purposes of this section, a presidency -town shall be deemed to be a district and the chief judge or the principal judge of the city civil court therein shall be deemed to be the district judge of the district.
34
When there is some substance or merit in the contention raised in the appeal it would be unfair and improper exercise of jurisdiction if interim orders are not granted staying eviction of the appellant. If such interim relief is granted in the presence of the respondent then it cannot be challenge under Article 226 of the Constitution of India.
24
The District Judge is vested with power of stay the order of eviction passed by the Estate Officer. An appellant who is aggrieved by an order of the District Judge can seek judicial review of the order only under Article 226 and 227 of the Constitution of India.25 It has been held that mere tendering of the order of the Estate Officer personally to the petitioner would not fulfill the statutory requirement of publication as is envisaged under section 9 read with section 5.26 Writ proceedings on the question of jurisdiction is to be adjudicated and no question of fact or mixed questions of fact and law and the statutory remedy under the Act is appeal under section 9 before the District Judge.
27
It has been held that the District Judge empowered to hear appeals under (his section acts as a persona designate and not as a court.
24
28
Union of India v. Gulam Nabi Azad 1990 Rajdhani Law Reporter (DB) 242. Indian Bank v. Blaze & Central (Pvt) Ltd. 1986 ( 1) RLR 560 Karnataka. 26 Parmanand Singh v. District Judge, Mirzapur 1982 (2) RCJ 186. 27 M /s Indoimex Agencies (Pvt.) Ltd. v. Life Insurance Corporation of India AIR 1983 Delhi 490. 28 N. P. Berry v. Delhi Transport Corporation ILR 1979 (Delhi) 1. 25
35
When the appeal is dismissed on the ground that it was barred by limitation such finding based on requisite material of a Tribunal or a Court below is Sacrosanct for the writ court and cannot he interfered with.
29
29
Tara Singh v. Additional District Judge, Ferozepur AIR 1984 Punjab & Haryana 175.
36
Offences and Penalty The Act also provides for penal measures for proper implementation of the Act.
Section 11. Offences and penalty :- (l) If any person unlawfully occupies any public premises, be shall be punishable with simple imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees; or with both. Provided that a person who, having been lawfully in occupation of any public premises by virtue of my authority (whether by way of grant, allotment or by any other mode whatsoever) continues to be in occupation of such premises after such authority has ceased to be valid, shall not be guilty of such offence. (2) If any person who has been evicted from any public premises under this Act again occupies the premises without authority for such occupation, he shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to [five thousand rupees], or with both. (3) Any magistrate convicting a person under (sub-section (2) may make an order for evicting that person summarily and he shall be liable to such
37
eviction without prejudice to any other action that may be taken against him under this Act. In interpreting any penal provision it is not permissible to give an extended meaning to the plain words of the section on the ground that a principle recognised in respect of certain other provisions of law requires that this section should be interpreted in the same way.
30
Section 11A. Offences under section 11 to be cognizable:- The Code of Criminal procedure, 1973 shall apply to an offence under section It as if it were a cognizable offencefor the purposes of investigation of such offence, and for the purposes of matter, other than; (1) matters referred to in section 42 of that Code, and (2) arrest of a person except on the complaint of, or upon information received from.(a) a Group A officer as may be appointed by the Central Government, in the case of an offence in relation to the public premises specified in sub-clause (1) of clause (e) of section 2,
30
State of A.P. v. Andhra Provincial Potteries Ltd AIR 1973 SC 2429
38
(b) an officer equivalent to the rank of a Group A officer of the Central Government or where it is not possible to specify an officer of such equivalent rank, such executive officer as may be appointed by the statutory authority in the case of an offence in relation to the public premises specified in sub-clause (2) of clause (e) of section 2, (c) such Deputy Commissioner, in the case of an offence in relation to the public premises belonging to the Municipal Corporation of Delhi, as may be appointed by the Administrator of the Union territory of Delhi, (d) the Secretary , New Delhi Municipal Committee, in the case of an offence in relation to the public premises belonging to the New Delhi Municipal Committee, (e) the Secretary of a notified area committee, in the case of an offence in relation to the public premises belonging to that committee, (f) such Director, in the case of an offence in relation to the public premises belonging to the Delhi Development Authority , as may be appointed by the Administrator of the Union territory of Delhi.
39
The Case of Suhas H. Pophale v. Oriental Insurance Co. Ltd.
31
Since inception of the Act, there has been constant conflict on applicability of the Act viz ‐a‐vis the applicability of the state rent control act. The Act has been made applicable since 1958. However, the question arises with respect to premises which were not acquired by such Public Authority until much later date and the tenants were till such date of acquisition, governed by the respective state act. The Supreme Court judgment in Suhas Pophale case clarified the position in such cases. It clarified that the Act can only be applied from 16 September 1958, or from a later date when such premises became government owned with the nationalization of the banks and private insurance companies. The judgment of Supreme Court is primarily aimed at properties belonging to nationalized insurance companies and nationalized banks. Supreme Court of India in its recent judgment Dr Suhas H Pophale v Oriental Insurance Company Limited and its Estate Officer 32 has changed the parameters of eviction of the tenant under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
31
(2014) 4 SCC 657. Ibid.
32
40
In the instant case, Dr Suhas Pophale was the tenant of Indian Mercantile Insurance Company(MIC) and was a lawful tenant under the Bombay Rent Act 1947 (now Maharashtra Rent Control Act, 1999). MIC was merged with the Oriental Insurance Company (OIC) a government company, with effect from 1 January 1974. However the management of MIC was taken over by the Central Government in 1971. Dr Suhas Pophale had obtained a license from the original tenant in 1972 and MIC had been informed about the same. Thereafter eviction order came to be passed against the said Dr Suhas Pophale in 1993 by the Estate Officer of OIC which was later affirmed by the City Civil Court and Bombay High Court. Supreme Court allowed the appeal having following effect: (A) When a tenant is protected as a 'tenant' or `deemed tenant' under the State Act, prior to the merger of the erstwhile insurance company with a Government Company, he could be removed only by following the procedure available under the State Act. (B) Thus, as far as the tenants of the premises which are not covered under the Act are concerned, those tenants who were tenants or deemed tenants under the State Act, continues to have their protection under the State Act. Legislation is not to be given a retrospective effect unless specifically provided for, and not beyond the period that is provided therein.
41
(C) For any premises to become public premises the relevant date will be 16 September 1958 or whichever is the later date on which the concerned premises become the public premises (as belonging to or taken on lease by Public Authorities like OIC). All those persons failing within the definition of a tenant occupying the premises prior thereto will not come under the ambit of the Act and cannot therefore be said to be persons in "unauthorized occupation". If possession of their premises is required, that will have to be resorted to by taking steps under the respective State Acts. If person concerned has come in occupation subsequent to such date, then of course the Act will apply. (D) The occupants of these properties were earlier tenants of the private landlords. They have not chosen to be the tenants of the Government Companies. Their status as occupants of the Public Insurance Companies has been thrust upon them by the Act.
42
THE PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) AMENDMENTS ACT, 2015 The Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1971 was amended 3 times before in 1980, 1984, and 1994 and 2015 Act is 4th amendment to the main Act. Supreme Court in the case of S.D. Bandi vs. Di visional Tr aff ic Off icer , 33
Kar nataka State Road Tr ansport Cor porati on (KSRTC) & Ors had given 20
suggestions with regard to unauthorised occupancy in its judgment dated 5/7/2013 which aimed at smooth and speedy eviction of unauthorised occupants from public premises in a prescribed time limit. This Amendment’s main objective is to achieve the objectives that are stated by Hon’ble Supreme Court without any further delay. The Central Government in exercise of the powers conferred by Section 1(2) of the Public Premises (Eviction of Unauthorised Occupants) Amendments
43
Act,
2015,
appointed
22.06.2015
as
the
date
on
which
the
said Act shall come into force. Under the Principal Act “Public Premises” means premises which belong to Central Government and which has been placed under the control of Secretariat
of
either
House
of
Parliament
for
providing
residential
accommodation to Secretariat staffs. Premises also include premises leased to any Company or Corporation or University or Board of Trustees. Section 2 of the principal Act has been amended with regard to certain words like company will be as per the Companies Act 2013, Metro railway will have meaning under Section 2 of Metro Railway (Operation and Maintenance) Act 2002, and meaning of State Government will be as per the Government of National Capital Territory of Delhi. Section 4 of the principal Act also has been amended with regard to eviction of unauthorised occupation of any public premises by estate officer after issuing notice. Section 5 also has been amended which states that estate officer should do the act as stated under Section 4 expeditiously as possible and should write down if any compelling reasons prevents the person to vacate in such period stated in notice. With regard to time limit, estate officer has right to order eviction of premises which should be done within 15 days but this time limit
44
can be extended by estate officer if he feels necessary after considering the reasons that prevented a person from vacating the premises within 15 days period. Section 7 of principal act which relate to power to require payment of rent in respect of public premises is amended and also with regard to simple interest and compound interest has been amended. Section 9 of the act also has been amended regarding the appeal in exceptional cases after expiry period to appellate officer and disposal of such appeals within specified time usually one month from the date of appeal. To provide for speedy machinery for eviction of unauthorised occupants from public premises this act was enacted which includes premises of government companies and corporations under central Act. As the companies Act 1956 is now re-enacted as Companies Act 2013 the clause (e) of section 2 of the PP(E)Act 1971 which deals with definition of public premises has been amended as per the new Companies Act where not less than 50% of paid up capital is under Central Government and partly by one or more state governments. Major Ports Trust Act, 1963 is being amended and include successor company under this new Act to the existing Board of Trustees and thus bring changes in section 2 of PP(E) Act 1971.
45
Words like Municipal Corporation is substituted by Corporation or corporations in section 3 of the Delhi Municipal Corporation Act 1957 which is recommended by Parliamentary Standing Committee on Urban Development.
46
Bibliography Primary Sources
The Public Premises (Eviction of Unauthorised Occupants) Act, 197.
The Public Premises (Eviction of Unauthorised Occupants) Amendments act, 2015.
Web Sources
THE
PUBLIC
PREMISES
(EVICTION
OF
UNAUTHORISED OCCUPANTS ) ACT, 1971 , available at: http://forest.and.nic.in/ActsNRules%5C13.pdf
Dr. Suhas H. Pophale v. Oriental Insurance Co. Ltd. and Its Estate
Officer
,
available
at :
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41216.
Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657, available at:
http://www.supremecourtcases.com/index2.php?option=com_ content&itemid=99999999&do_pdf=1&id=45713.
Ministry of Law and Justice, THE PUBLIC PREMISES (EVICTION
47
OF
UNAUTHORISED
OCCUPANTS)
