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Judgment
Pratap Krishna Lohra, J.—In all these petitions, common question of law and facts are involved and, therefore, all are heard together and disposed of by a common order.
The facts necessary and germane to the matter are that second respondent initiated proceedings against all the petitioners for their eviction by taking shelter of Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (for short ''the Act of 1964'') and consequently applications under Section 4 of the Act of 1964 were submitted before the first respondent - Estate Officer. In all these applications, it is, inter alia, averred by the second respondent - Nathdwara Temple Board that their tenancy had been terminated by serving a registered notice but inspite of that neither they have handed over the possession of the disputed premises nor they have paid the requisite amount of rent. In that background, while categorising their possession as that of unauthorised occupants, the second respondent claimed for their eviction and also prayed for relief of mesne profits for use and occupation. Taking cognizance of the application, the first respondent - Estate Officer issued notices to all the petitioners and solicited their reply.
In the reply, petitioners have disputed the ownership of the second respondent - Nathdwara Temple Board and it is averred that land in question was transferred to Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai by the then Maharaja Dhiraj Goswami Maharaj Shri Govardhanlalji in Svt. 1945 on receipt of consideration of amount of Rs. 501/- and therefore, the said trust is the owner of the property. It is further submitted in the return that petitioners are tenant of Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai and as such they are not obliged to pay rent to the second respondent -Nathdwara Temple Board. A reference is also made that earlier there was a civil litigation pertaining to the owner of the property wherein Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai was also a party and eventually the matter was amicably settled between the second respondent and the aforesaid trust by way of compromise. Placing heavy reliance on the terms of compromise, petitioners pleaded in their reply that in terms of compromise, Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai is the owner of the property and authorised to recover rent and, therefore, in that background, the proceedings initiated by the second respondent under the provisions of the Act of 1964 are not tenable. Petitioners have also asserted with full emphasis that they are regularly paying rent to the aforesaid trust and requisite receipts are also issued to them. Reiterating their stand that second respondent is not the owner of the property, petitioners have also alleged in the reply that no proof much less concrete proof has been placed on record by the second respondent to prove its ownership regarding the property in question. In totality, the petitioners have questioned the jurisdiction of the first respondent to proceed against them under the provisions of the Act of 1964 by contending that they are not unauthorised occupants. Taking shelter of Section 9 of the Code of Civil Procedure, it is also submitted in the reply that proceedings under the provisions of the Act of 1964 are incompetent and a proper remedy is before the civil court. Emphasizing the status of Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai, it is averred in the return that the same is a registered Public Trust under the provisions of Bombay Public Trust Act and, therefore, first respondent as Estate Officer is having no jurisdiction to proceed in the matter. For want of impleadment of Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai, a specific objection was also incorporated in the reply that application suffers from the vice of non-joinder of necessary parties. In the alternative, it is also pleaded that even if the premises in question is taken to be properties of the second respondent, the same do not fall within the ambit of public premises under sub-section (b) of section 2 of the Act of 1964.
Subsequent to the reply submitted by the petitioners, some additional facts are also pleaded by the second respondent by way of rejoinder reiterating the stand taken in the original application. Regarding the factum of transfer of property on consideration by Maharaja Dhiraj Goswami Maharaj Shri Govardhanlalji, it is specifically averred in the rejoinder that no such sale deed was ever executed. The second respondent has also called upon the petitioner to place on record any document showing title of the property in the name of Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai. It is also submitted in the rejoinder that the property belongs to Prabhu Shree Shrinathji managed by the second respondent and deity being perpetual minor, transfer of any property owned by the deity is not permissible under the law.
After rejoinder, evidence was tendered by the second respondent and the second respondent, to substantiate the averments in the application, tendered affidavit of one Mahesh Chandra who was subjected to cross-examination by the counsel representing the cause of the petitioners.
It appears that on 06.06.2014 ex parte proceedings were taken against the petitioners and subsequently on their request and considering application under Order IX Rule 7 CPC, ex parte order was set aside. Yet another attempt was made by the petitioners to prolong the proceedings by way of laying application under Sections 65 to 67 of the Indian Evidence Act, 1872 but that application did not find favour from the Estate Officer and the same was rejected.
At the behest of the petitioners, an attempt was made to consolidate all the matters and an application to this effect was also submitted before the Estate Officer. The Estate Officer after considering the applications noticed that in all the applications, different incumbents are tenants and their tenancy has also commenced on different dates, therefore, it is necessary to record evidence in each case separately. By observing this, the prayer made at the behest of the petitioners for consolidating all the matters was turned down by the Estate Officer by its order dated 16.01.2015. The Estate Officer also observed that since filing of the application for eviction almost three years have lapsed, therefore, the matter is required to be proceeded expeditiously. The proceedings initiated by the second respondent are still pending before the Estate Officer and by these writ petitions, the petitioners have prayed for quashing of all the proceedings being without jurisdiction.
Mr. C.S. Kotwani, learned counsel for the petitioners has strenuously urged that proceedings initiated by the first respondent -Estate Officer against the petitioners are wholly without jurisdiction and, therefore, proceedings are liable to be quashed by issuing a writ of certiorari. Learned counsel submits that issue relating to title of the disputed premises is contentious and such contentious issue cannot be determined by the Estate Officer in summary proceedings under the Act of 1964. Elaborating his submission, Mr. Kotwani has urged that all these issues can only be determined by a competent Civil court and therefore if the proceedings are allowed to continue before the Estate Officer, the same would result in miscarriage of justice. Learned counsel has also urged that premises in question do not fall within the ambit of public premises and, therefore, the first respondent cannot act as Estate Officer in the matter to adjudicate the applications submitted by the second respondent. In the alternative, Mr. Kotwani has urged that necessary direction be issued to the Estate Officer to decide first the preliminary objections of the petitioners regarding maintainability of the petitions for eviction. In support of his contentions, learned counsel for the petitioners has placed reliance on following legal precedents:--
"1. Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and Others,
Chief Engineer, Hydel Project and Others Vs. Ravinder Nath and Others,
Sarwan Kumar and Another Vs. Madan Lal Aggarwal,
Dr. Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana and Others,
In Hasham Abbas Sayyad (supra), Hon''ble Apex Court while interpreting Section 21 CPC has made a distinction between court lacking in territorial/pecuniary jurisdiction and court lacking in jurisdiction over the subject-matter. The Court held,-
"21. The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/Court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice being a nullity, the same ordinarily should not be given effect to. [See Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, & M.D., Army Welfare Housing Organisation Vs. Sumangal Services Pvt. Ltd., .
This aspect of the matter has recently been considered by this Court in Harshad Chiman Lal Modi Vs. DLF Universal and Another, , in the following terms :
"We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity."
[See also Zila Sahakari Kendrya Bank Maryadit Vs. Shahjadi Begum and Others, and The Shahabad Cooperative Sugar Mills Ltd. Vs. Special Secretary to Govt. of Haryana Corp. and Others, ]
We may, however hasten to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil Procedure; and a decree passed by a court having no jurisdiction in regard to the subject matter of the suit. Whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with."
In Chief Engineer, Hydel Project (supra) Hon''ble Apex Court while relying on doctrine of coram non judice declined to upheld a decree which was passed by a court having no jurisdiction even if no objection was taken at the initial first appellate or second appellate stage. The Court held,-
"19. Once the original decree itself has been held to be without jurisdiction and hit by the doctrine of coram non judice, there would be no question of upholding the same merely on the ground that the objection to the jurisdiction was not taken at the initial, First Appellate or the Second Appellate stage. It must, therefore, be held that the civil court in this case had no jurisdiction to deal with the suit and resultantly the judgments of the Trial Court, First Appellate Court and the Second Appellate Court are liable to be set aside for that reason alone and the appeal is liable to be allowed. In view of this verdict of ours, we have deliberately not chosen to go into the other contentions raised on merits. We, however, make it clear that we have not, in any manner, commented upon the rights of the plaintiffs- respondents, if any, arising out of the Labour Jurisprudence."
In Sarwan Kumar and another (supra) Hon''ble Apex Court while examining the provisions of Section 47 and Order XXI CPC held a decree passed by a civil court lacking inherent jurisdiction to entertain the suit in view of specific bar contained in the special act governing the case would be a nullity and therefore objection regarding invalidity of such decree can be raised at any later stage including the stage of execution of decree or any other collateral proceedings.
In Jagmittar Sain Bhagat (supra), Hon''ble Apex Court has held that jurisdiction of courts/forums cannot be conferred by consent of parties or acquiescence or waiver.
The pivotal question which is subject matter of judicial scrutiny in all these petitions lies in a narrow compass. In substance, the petitioners are questioning the jurisdiction of Estate Officer with a prayer for issuance of a writ of prohibition and certiorari. The order or prohibition is not of right unless the defect of jurisdiction is clear. Similarly, the order of certiorari is discretionary and can be issued to quash the proceedings if the person, body or tribunal is charged with judicial or quasi-judicial duty. Upon analysing the facts of all the cases, there remains no doubt that the respondent-Nathdwara Temple Board has initiated action for eviction against the petitioners by laying applications before the Estate Officer under Section 4 of the Act of 1964 somewhere in 2011 and since then the proceedings are going on. It is also borne out from the material placed on record that the Estate Officer is proceeding in all these matters within the parameters of its jurisdiction. The contention of the petitioners that premises in question is not owned by the Temple Board appears to be quite alluring but not of substance inasmuch as the document (Annex.3) cannot be construed as conferment of valid title on Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai. Moreover, the property in question was owned by the Deity Lord Shrinathji who is a perpetual minor and therefore there was no authority with any one to transfer or alienate the said property. The respondent- Temple Board has seriously disputed Annexure-3 including its legal sanctity. There is yet another aspect of the matter that if the document (Annex.3) is examined on the touch stone of "Pratigya Patra" (Annex.4), the alleged compromise between Temple Board and some of the trustees of Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai then it would ipso facto reveal that Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai was simply authorised to collect rent from some of the shops on behalf of the Temple Board. The relevant excerpt from Annexure-4 containing terms of compromise are reproduced infra in vernacular:--
Therefore, contention of the petitioners that premises in question is owned by Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai falls flat and decks are cleared about the title of the Temple Board regarding the premises. Moreover, on the face of it, on the strength of Annexure-4, the so-called title of Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai has lost all its efficacy and is of no avail and consequence to the petitioners.
The question that whether property belonging to Temple Board falls within the ambit of public premises is free from any doubt in view of exhaustive definition of "public premises" under clause (b) of Section 2 of the Act of 1964. Clause (xii) of clause (b) of Section 2 of the Act of 1964 clearly postulates that premises belonging to Deity of Shri Shrinathji Temple, Nathdwara is a public premises. Sub-clause (xii) of clause (b) of Section 2 of the Act of 1964 reads as under:--
2(b) "public premises" means any premises belonging to, or taken on lease or requisitioned by, or on behalf of the State Government; and includes any premises belonging to......
......
(xii) The Deity of Shri Shrinathji Temple, Nathdwara administered in accordance with the provisions of Nathdwara Temple Act, 1959 (Rajasthan Act No. 13 of 1959); or"
As regards status of the petitioners as unauthorised occupants, suffice it to observe that Nathdwara Temple Board has determined their tenancy and they are in occupation of the premises after determination of tenancy. The definition of "unauthorised occupation" under clause (e) of Section 2 of the Act of 1964 is clear and unequivocal in this behalf which reads as under:--
"(e) 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 or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
In this view of the matter, the objections raised by the petitioners about the jurisdiction of the Estate Officer to proceed against them under the Act of 1964 are wholly unfounded and there is no concrete material available on record to show that the Estate Officer is acting without jurisdiction or de hors the law. It goes without saying that a writ of prohibition and certiorari cannot be claimed by an aggrieved person as a matter of right and both these remedies are discretionary in nature. In want of proof about lack of jurisdiction of the Estate Officer to proceed against them, the petitioners are precluded from claiming any relief from this Court in the nature of writ of prohibition and certiorari.
On perusal of the proceedings going on before the Estate Officer, there remains no room of doubt that Estate Officer is giving full opportunity to the petitioners to defend their cause and is making endeavour to adjudicate the matter strictly in accordance with law. Continuance of proceedings for the last more than three yeas before the Estate Officer suggests clearly and unequivocally that the petitioners shall be allowed full opportunity to tender their evidence and defend their cause, which is yet another cause which has persuaded this Court to decline the relief of certiorari.
The legal precedents on which learned counsel for the petitioner has placed reliance are examined by me threadbare and while fully agreeing with the proposition laid down in all these judgments, I may observe here that all these judgments are clearly distinguishable and therefore cannot render any assistance to the cause of the petitioners. The petitioners have miserably failed to make out a case that Estate Officer is acting without jurisdiction and consequently the ratio decidendi of these judgments is of no avail and consequence to them for seeking redressal from this Court in all these petitions.
Before parting, I may hasten to add that all these petitions have been filed by the petitioners to prolong the eviction proceedings which are going on before the Estate Officer and such an attempt at the behest of the petitioners cannot be countenanced, more particularly when they are invoking extraordinary equitable jurisdiction of this Court enshrined under Article 226 & 227 of the Constitution of India. It is needless to observe here that any adverse order passed by the Estate Officer against the petitioners is also assailable before the Appellate Authority under Section 9 of the Act of 1964. Under Section 9 of the Act of 1964, the order passed under Section 5 or Section 7 of the Act of 1964 is appealable before the District Judge of the District where premises are situated. This being the position, the petitioners are always at liberty to assail the order passed by the Estate Officer while availing the remedy of appeal by incorporating all the necessary grounds available to them. However, in the backdrop of the facts and circumstances, at this stage, when the Estate Officer is proceeding in the matter well within his jurisdiction and in strict adherence of the procedure provided under the Act of 1964, no interference with the on-going eviction proceedings is called for.
The upshot of the above discussion is that all these writ petitions are bereft of any merit and consequently are dismissed summarily.
A copy of this order be placed in all connected files.