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Judgment
S. Rajeswaran, J.—This Civil Revision Petition has been filed against the order passed in C.M.P. No. 259 of 2008, in C.M.A. No. 12 of
2008 dated 15.02.2008 on the file of the Principal Judge, City Civil Court, Chennai.
The Petitioner herein is the first Respondent in C.M.A. No. 12 of 2008. The case of the Petitioner is as follows:
The Petitioner herein is the owner of the building known as National Insurance Building, at No. 224, NSC Bose Road, Chennai-1, which is a
public premises within the meaning of Section 2(e) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The first Respondent
was their tenant and was originally allotted an area of 3595 sq.ft. in the first floor of the said building for commercial activity on a monthly rent of
Rs. 14,545/- in November 1992, initially for a period of 5 years, renewable with two more periods of 5 yars each with 35% increase in rent on
each renewal provided the lessee is desirous of renewing the lease. Subsequently, the first Respondent herein surrendered a major area measruing
an extent of 3212 sq.ft. with effect from 01.12.1996 and continued as a tenant in respect of 493 sq.ft. including a common area on a monthly rent
of Rs. 1,746/- from 01.12.1996.
Renewal of lease and revision of rent was due with effect from 01.11.1997. But, the first Respondent/tenant was evasive in fixing the revised
rent and continued to pay the old rent of Rs. 1,746/-. In the meantime, the first Respondent also inducted a third party namely Information
Technology India Trust to operate in the petition premises, who made all the rental payments on behalf of the first Respondent. This induction of a
third party in the said premises was without authority and consent of the Petitioner herein. Thus, he not only avoided the revision of rent for more
than six years, but, also allowed a third party to operate in the said premises. Since there was No. subsisting lease agreement, the tenancy in
respect of the petition premises was on a month to month basis only. Therefore, the tenancy of the first Respondent was terminated by a notice
dated 06.08.2004 and the first Respondent/tenant was called upon to vacate and deliver the vacant possession, within 15 days from the date of
receipt of the said notice. Even after the expiry of the notice period, the first Respondent/tenant failed to vacate and deliver the vacant possession.
Therefore, the Petitioner filed an application u/s 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, seeking to evict the
first Respondent. The second Respondent issued a notice to the first Respondent/tenant and directed him to file his objections. The first
Respondent without filing his objections to the eviction petition filed an Interim Application in I.A. No. 1 of 2005 stating that one of the documents
filed by the Petitioner is a forged one and therefore, the original document must be produced (only photo copy was filed) and the same should be
sent for expert opinion. On the objections filed by the petitioer herein in the counter, that the document referred to was a genuine one, the Estate
Officer dismissed the above Interim Application on 18.08.2005 holding that the same would be taken up along with the main application. Against
the said order dated 18.08.2005 passed by the second Respondent/estate officer, the first Respondent/tenant filed C.M.A. No. 121 of 2005
which was dismissed on 21.07.2007. Against the order of dismissal, the first Respondent/tenant preferred C.R.P.(NPD) No. 3150 of 2007 before
this Court. This Court by order dated 11.12.2007 directed the second Respondent/estate officer to take up both the Interim Application Nos. 1
and 2 of 2005 in petition No. 30/04 along with the main petition and dispose of the same. Pursuant to this order, the estate officer took up the
main petition for hearing along with the Interim Application Nos. 1 and 2 of 2005. At that time, the first Respondent/tenant filed another application
in I.A. questioning the jurisdiction of the estate officer first and decide the same as a preliminary issue. The estate officer held on 09.02.2008 that
he would take up the two Interim Applications and the petition on maintainability would be decided along with the main petition and further
directed the parties to adduce evidence, if any, and post it for arguments on 16.02.2008. The first Respondent/tenant challenged these proceedings
before the City Civil Judge in C.M.A. No. 12 of 2008 who by the order dated 15.02.2008 in C.M.P. No. 259 of 2008 stayed the proceedings in
Petition No. 30/04 before the estate officer.
Since the order passed by the Principal Judge on 15.02.2008 is contrary to the order passed by this Court in C.R.P. No. 350 o 2007 dated
17.12.2007, the above Civil Revision Petition has been filed.
I have heard the learned Counsel for the Petitioner and the learned Counsel appearing for the first Respondent. I have also gone through the
documents available on record.
The learned cousnel for the revision Petitioner submits that C.M.A. No. 12 of 2008 itself is not maintainable u/s 9 of Public Premises (Eviction
of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act, 1971) which was already made clear by this Court in C.R.P.(NPD)
No. 3150 of 2007 on 17.12.2007 and despite the same, the court below not only entertained the appeal filed in C.M.A. No. 12 of 2008, but
also, granted interim stay of the proceedings of the estate officer in C.M.P. No. 259 of 2008. Therefore, the learned Counsel appearing for the
Petitioner submits that even though the order passed by the court below on 15.02.2008 in C.M.P. No. 259 of 2008 was only an ex-parte interim
order as it is and the same is an abuse of process of court and it is without jurisdiction. Hence, the Petitioner can straightaway approach this Court
under Article 227 of the Constitution of India. In short, the learned Counsel relying on Section 5 and Section 9 of the Act, 1971 contends that the
CMA filed by the tenant in C.M.A. No. 12 of 2008 is not maintainable and therefore, the stay granted on 15.02.2008 is to be set aside by this
Court without resorting to sending the Petitioner to City Civil Court to vacate the order.
Per contra, the learned Counsel appearing for the Respondents submits that the question of jurisdiction goes to the root of the matter and
therefore, it has to be decided first in order to render complete justice. He submits that CMA is very much maintainable u/s 9 of the Act and ever
otherwise, the question of maintainability of CMA should be decided by the Principal City Civil Court and not by filing a revision petition under
Article 227 of the Constitution of India before this Court. The learned Counsel objects to maintainability of the revision petition by submitting that if
the revision Petitioner is aggrieved by the order of stay granted on 15.02.2008, they should only approach the City Civil Court by filing necessary
vacate stay petition. Hence, he prayed for the dismissal of the CRP as not maintainable.
In support of his submissions, the learned Counsel for the first Respondent relied on a number of judgments and I will refer to the same only if it
is necessary.
I have considered the rival submissions carefully with regard to the facts and citations.
The facts are not in dispute and the revision Petitioner filed the petition in Petition No. 30/2004 before the Estate Officer u/s 5 of the Act, 1971
to pass an order of eviction against the first Respondent herein. After service of notice, the first Respondent entered appearance through counsel
and instead of filing a counter to the main petition, filed I.A. No. 1 of 2005 u/s 45 of the Indian Evidence Act to direct the peitioner to produce the
original documents dated 01.12.1996 and send the same for expert opinion. The first Respondent also filed another application in I.A. No. 2 of
2005 u/s 65 of the Indian Evidence Act to reject the documents filed by the revision Petitioner, in the counter filed by the revision Petitioner in I.A.
No. 1 of 2005. The Estate Officer observed that both the applications would be considered only in the main eviction petition and having observed
like this in the penultimate para of the order in Application No. 2 of 2005, the Estate Officer dismissed the Application No. 2 of 2005. Challenging
the order of dismissal, the first Respondent filed C.M.A. No. 121 of 2005 u/s 9 of the Act, 1971. The CMA was disposed off by the Principal
City Civil Court on 21.07.2007 by holding that the appeal preferred by the first Respondent herein is not sustainable in view of the provisions of
Section 9 of the Act, 1971. This order dated 21.07.2007 made in C.M.A. No. 121 of 2005 was challenged by the first Respondent before this
Court in C.R.P.(NPD) No. 3150 of 2007. This Court by order dated 17.12.2007, held that both the applications namely Application Nos. 1 and
2 of 2005 in Petition No. 30/2004 ought to be considered as rightly observed by the Estate Officer in the main eviction petition, after the first
Respondent herein filing his objections to the eviction petition. This Court further directed that the Estate Officer to take up Application Nos. 1 and
2 of 2005 after the objections were filed by the first Respondent in Petition No. 30/2004. The First Respondent was also directed to file his
objections within 10 days. The first Respondent, as directed by this Court, filed his objections to the main eviction petition on 26.12.2007 wherein
he had raised preliminary objections on maintainability and jurisdiction to be tried as a preliminary issue. According to the first Respondent, the
Estate Officer has No. jurisdiction, to entertain the eviction petition filed by the revision Petitioner herein. After written objections were filed by the
first Respondent herein, the Estate Officer adjourned the proceedings to 21.01.2008. On 21.01.2008, the counsel for the Petitioner submitted that
they would present their oral arguments on the main petition as well as in I.As together. But, the counsel for the first Respondent insisted that I.A.
should be heard first. The Estate Officer adjourned the case to 09.02.2008 for evidence on the side of the revision Petitioner. On 08.02.2008, the
first Respondent filed another I.A. (unnumbered) to try the issue of maintainability and jurisdiction as a preliminary issue and dismiss the petition
No. 30/2004 as No. maintainable. On 09.02.2008, the Estate Officer informed that all the I.As and the petition on maintainability could be
decided only with the main petition and adjourned the case for the revision Petitioner''s oral and written arguments on all the I.As'' and the main
petition on 16.02.2008. This order of adjournment passed by the Estate Officer on 09.02.2008 was challenged by the first Respondent in C.M.A.
No. 12 of 2008 and in C.M.P. No. 259 of 2008. The Principal City Civil Court granted stay of all further proceedings on 15.02.2008 and this
order dated 15.02.2008 is under challenge before me. Notice regarding admission was ordered by this Court on 21.02.2008 and an interim order
was also granted, which was extended from time to time. To decide the issue involved in C.R.P., it is necessary to refer to the provisions of the
Act, 1971.
Sections 5 and 9 of the Act, 1971 are very relevant to the point at issue and they are extracted below for better understanding:
Eviction of unauthorised occupants:
(1) If, after considering the cause, if any, shown by any person in pursuance of a notice u/s 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 [ on or before the date specified in the said order or within fifteen days of the
date 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, evict that person] from, and take possession
of, the public premises and may, for that purpose, use such force as may be necessary. Comments
Where order of termination of employee occupying quarter of government company was pending in Labour Court, he is still unauthorised
occcupant within the maning of Section 2(g) and can be evicted L.S. Nair Vs. Hindustan Steel Ltd., Bhilai and Others,
5A. Power to remove unauthorised constructions, etc.:
(1) 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 any 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 office,
sufficient, the estate officer may, by order, remove or cause to be removed the building or other structure or fixture from the public premises and
recover the cost of such removal from the person aforesaid as an arrears 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.
5B. Order of demolition of unauthorised construction:
(1) 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
additions 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.
(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 u/s 9.
(3) The estate officer shall cause every order made under Sub-section (1), or, as the case may be, under Sub-section (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 Sub-section (1) or where an order of
demolition made by the estate officer under that Sub-section has been confirmed No. 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, 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.
(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 such number of installments, as may be specified in the order.
5C. Power to seal unauthorised construction:
(1) It shall be lawful for the estate officer, at any time, before or after making an order of demolition u/s 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 purposes 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 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.
Appeals: (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under [Section 5 or 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 u/s 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 u/s 5C, within twelve days
from the date of such order:]
Provided that the appellate officer may entertain the appeal 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 u/s 5B 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 18 shall be in the discretion of the appellate 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.
Admittedly, the eviction petition has been filed u/s 5 and when the first Respondent was aggrieved for the first time, he filed an appeal in
C.M.A. No. 121 of 2005 u/s 9 of the act. The City Civil Court on 21.07.2007, after going through Section 5 of the Act, Sub-Section 5(B) and
5(C), Section 7 and Section 9 held that the appeal itself is not sustainable. It was observed by the City Civil Court that it was always open to the
party to question the proprietary of the interim order passed by the Estate Officer in the event of an eviction order is passed against him and an
appeal is preferred by him against the same before the Appellate Forum. Accordingly, C.M.A. No. 121 of 2005 was dismissed as not sustainable.
When this was challenged before this Court, this Court was also of the considered view that both the applications are to be considered in the main
eviction petition.
A perusal of Section 9 would show that the revision Petitioner is right in contending that against the interim order passed by the Estate Officer,
an appeal is not maintainable u/s 9 of the Act. Section 9(1) makes it very clear that an appeal shall be from every order of the Estate Officer made
in respect of any Public Premises u/s 5 or Section 5(B) or Section 5(C) or Section 7 to an Appellate Officer who shall be the District Judge of the
District, in which, public premises are situated. To put it precisely, the appeals contemplated u/s 9 or the orders passed by the Estate Officer u/s 5,
under which, an eviction order may be passed, u/s 5(B) which, the estate Officer may direct that the erection of unauthorised construction may be
demolished. u/s 5(C), the Estate Officer after making an order of demolition u/s 5(B) directing the sealing of such erection and Section 7, under
which, the Estate Officer may direct any person to pay the arrears of rent or damages within such time as may be specified by him. Therefore, I am
of the considered view that not every order passed by the Estate Officer could be challenged u/s 9 and it is limited to the orders passed u/s 5(B),
5(C) and Section 7. Therefore, I am not inclined to appreciate the arguments of the learned Counsel appearing for the first Respondent that every
order passed by the Estate Officer is appealable u/s 9 and therefore, the C.M.A. No. 12 of 2008 is very much maintainable.
In view of the findings rendered by me, I have No. hesitation in holding that C.M.A. No. 12 of 2008 pending on the file of the Principal City
Civil Court is not at all maintainable. After all, an appeal is a creation of statute and if the statute limits the scope of the appeal that could be
preferred, then, it is not open to any one to extend the order or widen the scope.
Once the appeal itself is not maintainable, the first Respondent is not entitled to enjoy the interim order passed by the Appellate Court in
C.M.P. No. 259 of 2008. of course, the revision Petitioner has an alternative remedy of going before the City Civil Court and to file application to
vacate the order. But, the same would be unnecessary especially when I held that the appeal itself is not maintainable and it is settled law that the
availability of an alternative remedy could not be a bar to this Court to exercise its powers under Article 227 of the Constitution of India. When this
Court sees that the Lower Court has assumed jurisdiction which does not have, it can always interfere under its supervisory jurisdiction to keep the
lower court to function within its boundaries. Therefore, I am rejecting the arguments of the learned Counsel appearing for the first Respondent that
the revision petition is not maintainable.
None of the judgments relied on by the learned Counsel for the first Respondent supports the case of the first Respondent, as all are rendered
on a different context and it is also settled that unless the facts are similar and identical, it is not open to the court to import the law laid down on a
set of facts straightaway to a different set of facts.
In the result, the Civil Revision Petition is allowed as prayed for and the Estate Officer is directed to dispose of all the I.As and the main
eviction petition within a month from the date of receipt of a copy of this order on merits and in accordance with law. No. cost. Consequently,
connected miscellaneous petition is also closed.