Punjab Coal Company vs Union of India

Tarlok Singh Chauhan, J.—Since common question of law and facts arise in these appeals and the same are taken up together for disposal.

Brief facts may be noticed. The respondent/petitioner issued a licence for stacking coal etc., in favour of the appellants which was carried from Kalka to Shimla by rail. These licences were revoked in February, 1986 and thereafter the respondent filed an application before the Estate Officer, Northern Railway, Ambala Cantonment seeking not only eviction of the respondent/appellant herein, but also payment of damages. On 17.3.1992 the Estate Officer closed the proceedings under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short ''Act'') and directed the appellants to pay damages which were quantified in each of the cases. The Estate Officer further directed the appellants to execute a fresh agreement which was to be renewed after every three years.

Aggrieved by the order of the Estate Officer, the respondent preferred appeals before the appellate authority i.e. Additional District Judge, Shimla. There was a delay in filing of the appeals for which a separate application under Section 5 of the Limitation Act was preferred. The learned Additional District Judge dismissed these applications against which the petitioner invoked the jurisdiction of this Court by filing petitions under Article 227 of the Constitution of India, being CMPMO Nos. 17, 18 and 21 of 2000. All these petitions were allowed by this Court on 27/28.11.2001 and the appellate authority was directed to decide the appeals within six months. The appellate authority vide its judgment dated 6.9.2002 dismissed all the appeals against which the respondents preferred three different writ petitions before this Court, which were allowed by the learned Single Judge against which judgments, the appellants have preferred the present appeals.

The learned writ Court allowed the writ petition on the following three points:

(i) The appellate authority had failed to take note of the observations made by this Court while disposing of CMPMO Nos. 17, 18 and 21 of 2000.

(ii) The judgment of the appellate authority was not sustainable as it had drawn wrong conclusion without taking into consideration the bare perusal of the Act and the Estate Officer had no jurisdiction under the law to direct the petitioner to get the property evaluated from the revenue agency: and

(iii) Lastly the cases were covered by the Division Bench judgment of this Court in CWP No. 310 of 2003, Union of India vs. M/s Simla Coal Company, decided on 26.12.2005 which in turn was upheld by the Hon''ble Supreme Court and therefore binding on the learned Single Judge.

We have heard learned counsel for the parties and have gone through the records of the case carefully and meticulously.

The point-wise findings are as follows:

Point No. (i):

Undoubtedly, certain observations were made by the learned Single Judge while allowing CMPMO Nos. 17, 18 and 21 of 2000 but then these observations were made only for the purpose of deciding the correctness of the order passed by the learned Additional District Judge, whereby he had rejected the applications filed under Section 5 of the Limitation Act preferred by the respondents for condoning the delay in filing of the appeal. It was during the course of hearing of those petitions that the learned Single Judge had made the following observation:

"In the present case, there is delay on the part of the Railway Administration in approaching the District Court. It is also true that Section 9 mandates the aggrieved party to file an appeal within twelve days, but as observed by the Supreme Court in several cases, while considering the applications for condonation of delay and deciding them, the approach of the Court is to decide the matter on merits and to do substantial justice between the parties. Merits cannot be ignored or overlooked altogether.

In the cases on hand, the allegation of the Railway Administration was that the respondents were licensees, the period for which the licences were granted in their favour, was over. The licences were not continued thereafter but the licensees continued to remain in possession unauthorisedly. Thus, they were unauthorized occupants and were liable to be evicted in accordance with law. One can understand that on the basis of allegations and counter-allegations and appreciating the evidence led by the parties, a decision can be arrived at by the Estate Officer one way or the other. In the instant cases, however, a curious approach had been adopted by the Estate Officer. In paragraph 4 of the order, the Estate Officer observed that the respondent on S.A. stated:

"He was willing to pay the licence fee to the applicant (Railway) according to the assessment of the value of land at site determined by the revenue authorities, Shimla, on the basis of revenue record and as per the relevant railway rules at the time of alleged termination of the license of plot and revision thereafter as in force from time to time".

He then proceeded to observe that the applicant (Railway Administration) was directed to determine the value of the land and to work out the licence fee as per the instant rules and the Railway Administration was asked to submit the same before him i.e. before the Estate Officer. The hearing was thereafter completed. The respondents-unauthorised occupants accepted the details of assessment of land and consented to execute fresh agreement on commercial plot basis.

In paragraphs 5, 6, 7 and 8, the Estate Officer observed:

"In view of the statement of the respondent as above and recorded available before me the case u/s 4 for eviction is hereby closed.

As regards damages the same have been claimed by the applicant amounting to Rs. 13440/- for the period from 1.3.1986 to 28.2.89 which are inconsistent with the extant rules and as per the rationalized guidelines issued by the Rly. Board in regard to the licensing of Rly. Land for common purposes. The arrears of license fee workout for the period from 1.3.86 to 31.12.91 comes to Rs. 29483.88 upon which I purpose 10% as token damages which thus comes to Rs. 32432/27 which the respondent is liable to pay and I hold accordingly.

Further in exercise of powers conferred upon me u/s 7/ 2 of the Act, I do hereby order that the respondent shall pay Rs. 32,432.27 as arrears of license fee including 10% as token damages for the period from 1.3.86 to 31.12.91 within two months from the receipt or publication of this order and thereafter @ Rs. 5037.27 per annum as license fee. Amount already paid, if any, by the respondent as license fee shall be deducted while effecting recovery. The respondent is also hereby directed to execute a fresh agreement to this effect which is to be renewed after every three years.

Failing above, action as provided in the Act shall be taken."

Reading the above order, there is no doubt that the said Officer did not decide the matter like a Tribunal or an authority constituted under Section 3 of the Act. He virtually acted as the owner or licensor of the plots and ordered renewal of licences. It is also clear that practically life time licences were created/renewed by the Estate Officer in the sense that such renewal was to be made "after every three years".

In my opinion, the grievance voiced by the Railway Administration is fully justified that the above action on the part of the Estate Officer was not only de hors the Act but without power, authority or jurisdiction. One could have understood had he dismissed the cases holding that the averments made and allegations levelled against the licensors by the Railway Administration were not well founded and, hence, they were liable to be dismissed. He had, however, no power either to direct the Railway Administration to determine the value of the land and work out the licence fee as per instant rules nor he could issue directions to the occupants, who according to the Railway Administration, were unauthorized occupants to pay the amount and to get the licences renewed. In any case, a direction that such licences would be renewed after every three years would be wholly uncalled for. Grant of such right, if it is called right, for all time to come would be wholly without jurisdiction of the Estate Officer, who was required to decide lis between the parties i.e. Railway Administration on the one hand and so called unauthorized occupants on the other hand. That fact, therefore, ought to have been taken into account by the learned Additional District Judge even while dealing with applications for condonation of delay."

But after making the aforesaid observations, the Court had clarified that the appellate authority would decide all the contentions raised in the appeal in accordance with law, without being inhibited by the observations made by it. This would be clear from the operative portion of the judgment which reads thus:

"I may clarify before parting with the matter that it is open to the parties to raise all contentions available to them and those contentions will be decided by the appellate authority in accordance with law without being inhibited by the observations made by me hereinabove. Since the original cases are of 1986, the appellate authority will give due priority and dispose them within six months from the receipt of the record from this Court. Record be sent immediately."

Thus, while setting aside the order of the learned appellate authority, this Court had given liberty to the appellate authority to decide the case on merits uninfluenced (inhibited) by any observations made in the impugned judgment. No doubt, due deference had to be accorded by the appellate authority to the observations of this Court but at the same time these observations could not be construed to operate as res judicata or binding to an extent that nothing would remain to be decided or adjudicated by the appellate authority.

Point No (ii):

The other ground on which the writ petitions have been allowed, is spelt out in the following manner:

"The judgment of the appellate authority is not sustainable. The appellate authority had drawn absolutely wrong conclusions without taking into consideration the bare provisions of the Act. The findings recorded by the appellate authority are not supported by oral as well as by documentary evidence. The Estate Officer had no jurisdiction under law to direct the petitioner to get the property evaluated from the revenue agency. There was no agreement between the parties in regard to the renewal of licence and the same has been done by the Estate Officer merely on the basis of the statement of Sh. Parmod Sood. It is evident from the record that the petitioner had never acquiesced for renewing the licence of the premises in question. The petitioner had neither agreed nor given any undertaking as reflected in the judgment of the appellate authority. The appellate Court had also wrongly invoked the principle of estoppel while upholding the order of the Estate Officer. Once the licence has been determined, the position of the respondent was of an unauthorized occupant. There was no amicable settlement arrived at between the parties as noted by the appellate authority."

The learned appellate authority, while rejecting the claim of the respondents herein, concluded that the appellants were in possession of the land and building prior to initiation of proceedings under Sections 4 and 7 of the Act and had been paying license fee/rent in respect of the use of the said land and premises. They had been issued notices for termination of their licences in the year 1986 but when the proceedings were pending before the Estate Officer, on the statement of the appellants wherein they had expressed their readiness and also to pay licence fee which had been worked out by the Railways alongwith the arrears of licence fee including 10% as token damages and accordingly the proceedings had been concluded. It was also found that after recording of the statement, the respondents had taken steps for assessment of the land at the market value and on the basis of the said assessment, the respondents had agreed to pay certain amount as arrears of licence fee including 10% as token damages. This position was not disputed by the respondents before the learned appellate authority, but a specific demand as was noticed by the learned appellate authority was made to the following effect:

".........During the course of arguments, it was duly conceded by the learned counsel appearing on behalf of the parties that the arrears of licence fee as per the impugned order has been paid by the respondent, to the Railway Authorities. Thus, it is clear from the act and conduct of the appellant/applicant that Railway Authorities have yielded and consented to the undertaking which was given by the respondent on 13.12.1991 before the Estate Officer. It does not lie in the mouth of the appellant not to say that the order in question passed by the Estate Officer is beyond his power when the appellant i.e. Railway Authorities itself accepted the licence fee from the respondent as per the contention raised in the impugned order. To my mind, the appellant i.e. Railway authorities in the present case are estopped by their act and conduct resiling from the stand which they have taken earlier by accepting the licence fee from the respondent. No doubt, the inquiry under the Public Premises Act is of summary nature and Estate Officer is supposed to adhere the natural of justice while conducting such inquiries and the procedure as contained in C.P.C. is not strictly applicable in such like proceeding. There is no bar under the Public Premises Act, 1971 to the Estate Officer to settle the dispute ''extra cursus curial'' provided the parties to the dispute have either consented to the said course or have acquiesced in the said procedure."

It was on the basis of such concession that the appellate authority came to the conclusion that by the act and conduct of the respondents they "yielded and consented" to the undertakings which had been given by them before the Estate Officer and, therefore, it did not lie in their mouth to say that the order in question passed by the Estate Officer was beyond his power and competence and the respondents were clearly estopped by the act and conduct resiling from the stand which they had taken earlier by accepting the licence fee from the appellants. The appellate authority further held that the provisions of Order 23 Rule 3 CPC which relate to compromise were not strictly applicable to the proceedings before the Estate Officer and it was not necessary that there should have been an agreement in writing which was required to be signed by both the parties, therefore, the Court was only required to see the real intent of the parties. It was also observed that the respondent had not given licence for all times to come as it was clear from the order that after every three years, the respondents would have the right to renew or not to renew the same. Lastly, the learned appellate authority held the order passed by the Estate Officer to be in nature and character of the consent decree which was binding on both the parties.

The writ court was exercising the powers of judicial review and was therefore required to consider whether the reasons assigned by the Tribunal as also the Appellate Authority were cogent, relevant to the point in issue and based on material evidence on record. In case it chose to disagree with the reasons and findings of the authority below then while reversing the findings of fact, it was required to come into close quarters with the reasoning assigned by these authorities and then assign its own reasons for arriving at a different finding.

Point No. (iii):

Indisputably, the judgment in CWP No. 310 of 2003 in case Union of India vs. M/s Simla Coal Company decided on 26.12.2005 was a judgment in ''personam'' and not judgment in ''rem'' and would therefore only bind the parties to the proceedings. No doubt, the judgment could be cited or even relied upon as a precedent but then the same could not have been made applicable to these cases without first coming to categoric conclusion that the fact situation in both the cases was the same. No doubt, the decision of the learned Division Bench is binding on the learned Single Judge especially when the learned Division Bench judgment has been affirmed by the Hon''ble Supreme Court, but then such decision has to be made on the expected norms of "ratio decidendi". After all a decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made therein. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.

The appellants have specifically stated that the facts in CWP No. 310 of 2003 were totally different from the facts obtaining in the present case and further that the said petition had been dismissed at the stage of admission itself because the petitioner therein had not paid enhanced rent to the respondent. Now, these were the certain questions which were required to be gone into before concluding that the present cases were covered by the judgment in CWP No. 310 of 2003.

In view of above discussion, we find merit in these appeals and the same are allowed and the judgment(s) passed by the learned writ Court are set-aside and all the cases are remanded to the learned writ Court for decision afresh. The Registry is directed to place a copy of this judgment on the files of connected matters.

Costs easy.