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Judgment
S. Sardar Zackria Hussain, J.—The plaintiff in O.S.No.4609 of 1998 on the file of the V Assistant Judge, City Civil Court, Madras, is the
revision petitioner. The revision is directed against the judgment dated 4.9.2001 in C.M.A.No.106 of 1999 on the file of the III Additional Judge,
City Civil Court, Madras reversing the interim injunction granted in I.A.No.10676 of 1998 by the V Assistant Assistant Judge, City Civil Court,
Madras, restraining the respondents/defendants from interfering with the possession and enjoyment of the suit property by the revision
petitioner/plaintiff except under due process of law, by allowing the appeal.
The revision petitioner/plaintiff filed the suit O.S.No.4609 of 1998 for permanent injunction against the respondents/defendants from interfering
with the peaceful possession and enjoyment of the suit property except under due process of law claiming that as per orders dated 25.7.1993 and
1.10.1993 issued by the respondents/defendants her deceased husband M.Irulandi, who was Ex-Service man, was allotted an open varandah for
construction and running of Photocopier/PCO/STD Shop at Head Quarters, ATNKK & G.Area, (AWWA - Army Wives Welfare Association),
viz., 300 square feet, situate in front of AWWA, Fort Saint George, Chennai-600 009 and the electrical connections thereon(the suit property),
which was run by her husband till his life time. On his death, this shop was re-allotted with 100 square feet in addition as per letter dated
19.2.1995 and she has been running the shop under the name and style of M/s.Lucky Xerox & Telecom Services in xerox copying,
telecommunication services and job typing for the past more than three years after the death of her husband. She has been regularly paying rent for
the varandah place allotted and electricity charges to the defendants without default. Whileso, the first defendant sent a letter on 17.7.1998,
directing her to vacate the shop on or before 19.7.1998 positively. Hence, apprehending that she will be dispossessed by the defendants, the suit
has been filed on 22.7.1998.
The revision petitioner/plaintiff along with the suit filed injunction petition I.A.No.10676 of 1998 praying interim injunction. The petition was
resisted by the respondents/defendants in the counter admitting the allotment of the open varandah (200 square feet) in front of Army Wives
Welfare Association(AWWA) shop for photocopier (xerox) and PCO/STD by the President AWWA, Chennai as per order dated 17.7.1993.
On that basis, the letters of intimation dated 25.7.1993 and 1.10.1993 were issued. The allotment was made to the husband of the revision
petitioner/plaintiff purely on humanitarian grounds and as a welfare measure to rehabilitate a retired JCO, since he had no other job at that time and
to maintain the family excepting his meager pension. On the death of her husband Irulandi, the revision petitioner made an application dated
7.5.1994 seeking permission to continue to run the said shop as her financial condition was not very sound. She was also permitted to run the said
shop purely on humanitarian grounds by the President of AWWA. The premises being the property of Defence and declared as ancient monument
under Ancient Monument Preservation Act by Archeological Survey of India and no construction is permitted. The institution of AWWA has since
been disbanded and as such, any agreement with the said Association ceased to exist. As the premises were required for the use of troops and
stores of Army, the notice to vacate was issued on 31.5.1997 and then another notice was issued on 25.8.1997 under Sub-section (1) and Clause
(b)(ii) of Sub-section (2) of Section 4 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971(hereinafter referred to as ""the Act"").
Thereafter further notice was issued on 29.9.1997 under Sub-section (1) of Section 5 of the Act and they have been received by the revision
petitioner, but the revision petitioner failed to appear in person. The revision petitioner is to pay heavy dues since January 1998 to the Telecom
Department because of which the PCO connection has been disconnected and the revision petitioner is not providing PCO facilities to the Army
personnels. The revision petitioner owns a personal house bearing door No. 12, Bharathi Nagar, 100 feet Road, Guindy, Chennai-32 and also
land approximately 3 grounds at Velachery (Chennai). She is also running another Xerox shop in Shanthi Theatre Complex, Mount Road,
Chennai-5 and she is well off. Reasonable opportunity was provided to the revision petitioner, but she failed to avail the same by not submitting
any objection to the notice issued u/s 5 of the Act. The revision petitioner also defaulted in payment to the Telecom Department after receiving
money from the public for the calls made and she has no legal right to run the shop on the Defence land.
The trial Court considering the case advanced on either side and Exs.A-1 to A-9 marked on the side of the revision petitioner/plaintiff and
Exs.B-1 to B-7 marked on the side of the respondents/defendants, in accepting the case of the revision petitioner/plaintiff, allowed the petition
I.A.No.10676 of 1998 and granted interim injunction restraining the respondents and their men from interfering with the peaceful possession and
enjoyment of the suit property by the revision petitioner/plaintiff until she is evicted under due process of law as per order dated 18.9.1998. The
first appellate Court allowed the appeal in C.M.A.No.106 of 1999 mainly on the ground that the suit itself is not maintainable, in that, appeal is
provided u/s 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 against the notice issued u/s 5 of the Act before the District
Court concerned and as such, before resorting to and filing appeal to the concerned authority as per the Act, the suit as filed is not maintainable
and that the trial Court has also no jurisdiction to entertain the suit u/s 15 of the said Act and further stating that the revision petitioner/plaintiff has
not come to the Court with clean hands, in that, the revision petitioner/plaintiff failed to mention the action initiated under Sections 4 and 5 of the
Act. The judgment of the first appellate Court is under challenge in this revision.
Heard the learned counsel appearing for the revision petitioner/plaintiff and the learned Additional Central Government Standing Counsel
appearing for the respondents/defendants.
The husband of the revision petitioner/plaintiff Irulandi, who was an Ex-Service man, was allotted space (open varandah in front of AWWA
shop) for the construction of ""photocopier"" shop provided by the President, AWWA, Madras as per order Ex.A-1 dated 25.7.1993. As per
order Ex.A-2 dated 1.10.1993, for the Open Varandah (200 square feet) in front of AWWA at Fort Saint George, Madras allotted to the
revision petitioner''s husband for running Xerox, PCO/STD and other items, the rent and allied charges have been fixed at Rs. 40/- directing the
same to be payable to MES concerned by 5th of every month. As per Ex.A-3 dated 17.7.1998, it was directed to vacate the premises, in which
Xerox shop is run in Fort Saint George, Chennai by 19.7.1998 positively and further directing to pay the rent and rebate to Station Head Quarter
for previous dues by 19.7.1998 failing which eviction proceedings will be undertaken by the Head Quarter on 20.7.1998. Ex.A-4 series are the
letters by Law Department, Secretariat, Chennai for taking down the xerox copies for Law (OP) Department. Ex.A-5 is the letter dated
27.9.1997 by the revision petitioner seeking to reconsider the direction to vacate the shop run by her as per letter dated 25.8.1997, and requesting
permission to retain the shop (300 square feet) of land. Ex.A-6 is the Military Receivable Order issued during the month of July, 1998 to receive
the sum of Rs. 429/- towards rent and allied charges payable by the revision petitioner. Ex.A-7 dated 6.7.1998, Ex.A-8 dated 19.6.1998 and
Ex.A-9 dated 11.5.1998 are the challans of the Reserve Bank of India, Madras for payment of rent by the revision petitioner.
Ex.B-1 is the allotment order dated 17.7.1993 allotting a space (open varandah in front of AWWA shop) for the construction of ""Photocopier
shop by JC M.Irulandi (revision petitioner''s husband), Madras provided by the President, AWWA, Madras. Ex.B-2 is the copy of Ex.A-1.
Ex.B-3 is the copy of Ex.A-2. Ex.B-4 is the letter dated 7.5.1994 by the revision petitioner informing the President, AWWA, Madras that her
husband Irulandi died on 7.4.1994 in the road accident and seeking permission to run a Xerox shop in the open space allotted to her husband
Irulandi by AWWA, Madras. Ex.B-5 is the notice dated 31.5.1997 to the revision petitioner directing to vacate the bunk shop under her
occupation put up in the open varandah 300 square feet in front of AWWA shop in the Building No. XXV(King''s Barrack) by June, 1997. Ex.B-
6 dated 25.8.1997 is the notice issued under Sub-section (1) and Clause (b)(ii) of Sub-section (2) of Section 4 of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 stating that the revision petitioner is an unauthorised occupant of the said public premises, viz., 300 square
feet in front of AWWA Shop in Building No. XXV (King''s Barrack), inside Fort Saint George and further informing that the licence period from
April, 1995 to March, 1997 was over, the revision petitioner has not vacated and as such, the revision petitioner is an unauthorised occupant and
the revision petitioner was called upon to show-cause on or before 12.9.1997 and for personal hearing and on failure to appear, it will be decided
ex parte. Ex.B-7 dated 29.9.1997 is the notice issued under Sub-section (1) of Section 5 of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 and stating that the revision petitioner is an unauthorised occupant of the public premises, viz., 300 square feet in front of
AWWA Shop in Building No. XXV(King''s Barrack) and inside Fort Saint George, Chennai and directing her to vacate within 15 days failing
which she will be liable to be evicted by use of such force as may be necessary.
The learned counsel for the revision petitioner submitted that the revision petitioner is a tenant under the respondents and not an unauthorised
occupant as alleged by the respondents and as such, the provision of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is not
applicable. The revision petitioner paid rent to the respondents under Exs.A-7 to A-9 as per Military Receivable Order Ex.A-6 and after filing of
the suit she has paid the rent through the Reserve Bank of India. Then it is submitted by the learned counsel that the husband of the revision
petitioner, viz., Irulandi was inducted as a tenant in respect of the vacant portion of varandah, in which he has constructed the bunk with the
permission of the respondents as it can be seen from the allotment order Ex.A-1 dated 25.7.1993 and Ex.A-2, the order issued to the husband of
the revision petitioner and on the death of her husband, the revision petitioner sought permission as per Ex.B-4 to run the photocopier shop. Then,
by referring Section 2(f) of the Act, the learned counsel contended that since the rent is payable in relation to any public premises periodically for
the authorised occupation of the premises, it cannot be said that the revision petitioner is an unauthorised occupant. Since the revision petitioner is
not an unauthorised occupant, Section 15 of the Act is not applicable to the facts of the case. Further, the learned counsel brought to the notice of
this Court that the notice Ex.B-5 dated 31.5.1997 issued u/s 4(2) of the Act and subsequent notice issued u/s 5(1) of the Act were replied by the
revision petitioner and on considering such reply, the entire proceedings of eviction under the Act was dropped by the respondents and thereafter,
Military Receivable Order Ex.A-6 was also issued, on the basis of which, rent upto July 1998 has been paid by the revision petitioner for the
premises under Exs.A-7 to A-9 and in any event, the earlier proceedings have been waived. The learned counsel submitted that as per Ex.A-3
dated 17.7.1998, the revision petitioner was called upon by the first respondent to vacate the premises for not providing PCO, STD facilities.
Therefore, since the respondents without following the specific provisions of the Act had issued notice Ex.A-3, the civil Court has got jurisdiction
to set aside such action initiated by the respondents. With regard to the case put-forth on behalf of the respondents that the premises is required for
the military use and since the premises is situated within the monument are not substantiated by material documents and since the respondents have
taken action not under purview of the Act, the civil Court has got jurisdiction to entertain the suit filed by the revision petitioner for permanent
injunction. It is also submitted by the learned counsel that by misusing the order granted by the first appellate Court staying the order of interim
injunction granted by the trial Court, the respondents have disturbed the possession of the revision petitioner by break opening the lock of the
premises and forcibly interfered with the possession of the revision petitioner and against the provisions of rules specified in the Act and in sealing
the same. It is then argued by the learned counsel for the revision petitioner that drastic action has been initiated against the revision petitioner alone
whereas 40 to 50 shops are running in the premises belonging to the respondents. The learned counsel further submitted that the premises is not
declared as an ancient monument under the Ancient Monument Preservation Act by the Archeological Survey of India prohibiting the construction
in the petition premises.
The learned counsel for the revision petitioner has relied on the following decisions:-
(1) Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , in which the Hon''ble Supreme Court held
thus:-
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court
on account of a challenge, get validated by additional grounds later brought out.
(2) Rajeev Mankotia Vs. Secretary to the President of India and others, , in which the Hon''ble Supreme Court held thus:-
... We avail this opportunity to direct the Government of India to maintain all national monuments under the respective Acts referred to above and
to ensure that all of them are properly maintained so that the cultural and historical heritage of India and the beauty and grandeur of the monuments,
sculptures secured through breathless and passionate labour workmenship, craftsmanship and the skills of the Indian architects, artists and masons
is continued to be preserved.
The learned Additional Central Government Standing Counsel appearing for the respondents by referring to various provisions of the Act,
mainly contended that the revision petitioner is an unauthorised occupant within the meaning of the Act and so action was initiated by issuing notice
Ex.B-6 dated 25.8.1997 under Sub-section (1) and clause (b)(ii) of Sub-section (2) of Section 4 of the Public Premises (Eviction of unauthorised
Occupants) Act, 1971, as per which the revision petitioner was called upon to appear on 12.9.1997 as to why the order of eviction should not be
made, in that, the licence granted to the revision petitioner for the period from April, 1995 to March 1997 was over and the revision petitioner
failed to vacate the bunk in spite of two months period given at her request. According to the learned Standing Counsel, such order has become
final since no appeal was preferred against that order and therefore, Ex.B-7 dated 29.9.1997 came to be issued u/s 5(1) of the Act, directing the
revision petitioner to vacate the premises in question within 15 days from the date of publication of the order. Inasmuch as appeal remedy is
available u/s 9 of the Act before the concerned District Court, the suit O.S.No.4609 of 1998 filed for permanent injunction by the revision
petitioner itself is not maintainable and as per Section 15 of the Act, the civil Court is barred in entertaining the suit in respect of eviction ordered
against the revision petitioner who is in unauthorised occupation of the public premises. The learned Standing Counsel further submitted that the
revision petitioner defaulted in payment of rent from May, 1997 to May, 1998. The learned Standing Counsel also submitted that the issuance of
notice under Exs.B-6 and B-7 have been suppressed by the revision petitioner in the suit and as such, she has not approached the Court with clean
hands.
The learned Standing Counsel also argued that pursuant to stay granted by the first appellate Court in respect of the order of interim injunction
granted by the trial Court, the respondents by virtue of powers conferred under the Act had taken possession of the bunk on 28.7.1999 in the
presence of Civil Police and after taking inventory of the articles in the bunk and since such possession was taken lawfully, the civil Court has no
jurisdiction to entertain the suit. The Defence land inside the Fort Saint George is declared as an ancient monument under Ancient Monument
Preservation Act by Archeological Survey of India and no additional construction is permitted by any agency without the consent of Archeological
Survey of India. According to the learned Standing Counsel, since AWWA has been disbanded, the revision petitioner has no legal right to
continue to run the said shop as the same is required for the use of troops and stores of Army and there is no contract between the revision
petitioner and the respondents.
The learned Additional Central Government Standing Counsel appearing for the respondents has relied on the following decisions:-
(1) Malaykumar Banerjee Vs. Union of India and others, , in which the Calcutta High Court has held thus:-
The acceptance of licence fees subsequent to the revocation does not amount to acquiescence of possession and the licensors'' right to evict the
licencee remains unaffected.
It is further held that notice u/s 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to licencee is not essential on the
revocation of licence to occupy premises for stipulated period.
(2) Thayal Nayagi v. Union of India reported in (2005)1 M.L.J. 453, in which, the First Division Bench of this Court held thus:-
The object of the Public Premises(Eviction of Unauthorised Occupants) Act, 1971 is to forcibly evict unauthorised occupants who are
deliberately remaining in occupation of public premises unauthorisedly.
The revision petitioner''s husband Irulandi was allotted the space open varandah (200 square feet) in front of Army Wives Welfare Association
(AWWA) shop, Saint George, Madras, by the President AWWA, Madras, in which superstructure was put up by him for running
photocopier(xerox) and PCO/STD and other items, and the rent and allied charges were also fixed at Rs. 40/- as can be seen from Exs.A-1 and
A-2. On the death of her husband, the revision petitioner was allowed to continue and to run the said shop pursuant to the letter Ex.B-4 dated
7.5.1994. A notice was caused under Ex.B-5 dated 31.5.1997 stating that the shop in the occupation of the revision petitioner is required for the
use of Army and further requested to vacate the bunk shop by 9.6.1997. Pursuant to such notice no immediate action was taken to evict the
revision petitioner. But, without determining the tenancy or cancelling the allotment made, Ex.B-6 dated 25.8.1997 was issued under Sub-section
(1) and Clause (b)(ii) of Sub-section (2) of Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 that the revision
petitioner is an unauthorised occupant and further stating that the licence period from April, 1995 to March, 1997 was over and therefore, the
revision petitioner being an unauthorised occupant was called upon to show-cause on or before 12.9.1997 and for personal hearing. Followed by
Ex.B-6, another notice Ex.B-7 dated 29.9.1997 under Sub-section (1) of Section 5 of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 was issued describing the revision petitioner as an unauthorised occupant of the public premises and directing her to vacate within 15
days, failure of which she will be liable for eviction by use of such force. Though in the notice Ex.B-6 dated 25.8.1997, it is stated that the licence
period or lease period from April, 1995 to March, 1997 was over, it is not stated so in the earlier notice Ex.B-5 dated 31.5.1997 and in that
notice it is only stated that the shop is required for the use of Army.
In Ex.A-3 dated 17.7.1998, the revision petitioner was called upon by the respondents to vacate the premises for not providing PCO/STD
facilities. Even though in the notice Ex.B-6, it is stated that the licence or lease period from April, 1995 to March, 1997 is over, the licence or lease
was not determined and allotment in favour of the revision petitioner was not cancelled. Further, there is no document filed supporting the case of
the respondents that the lease or licence period was over by the end of March, 1997 and there is nothing to show that the authority under which
the premises occupied by the revision petitioner, has since been disbanded and as such, any agreement with thesaid authority(AWWA) ceased to
exist so as to say that the revision petitioner is in ""unauthorised occupation"" of the premises.
As per Section 2(f) of the Act ""rent"" in relation to any public premises, means the consideration payable periodically for the authorised
occupation of the premises and includes (i) any charge for electricity, water or any other services in connection with the occupation of the premises
and (ii) any tax payable in respect of the premises. Therefore, it is clear the rent was collected from the revision petitioner for the authorised
occupation under Exs.A-1 and A-2 as per which, the revision petitioner''s husband was allotted space open varandah (200 square feet) in front of
Army Wives Welfare Association (AWWA) shop, Saint George, Madras, by the President AWWA, Madras and was permitted to put up
structure and on the death of the revision petitioner''s husband, the revision petitioner was allowed to continue to run the shop.
The notices under Sections 4 and 5 of the Act have to be issued only if the public premises are in unauthorised occupation of the persons.
Therefore, the notices Exs.B-6 and B-7 issued under Sections 4 and 5 of the Act being improper and only in case of such notices properly issued,
the jurisdiction of the civil Court is barred within the meaning of the said Act, in that view, the suit filed by the revision petitioner for permanent
injunction not to evict her except under due process of law from the premises is very much maintainable.
Though it is stated by the respondents that the revision petitioner defaulted in payment of rent from May, 1997 to May 1998, it is not stated so
in the notice Ex.A-3 dated 17.7.1998. As per the Military Receivable Order Ex.A-6, the rent upto July, 1998 has been paid by the revision
petitioner under Exs.A-7 to A-9.
Further, the lease period was over as claimed by the respondents, is to be gone into only at the trial of the suit and if proved that such period
was over as early as in March, 1997, then the revision petitioner will have no case, in that, she will be an unauthorised occupant within the meaning
of the Act holding the notice Ex.B-6 issued under Sub-section (1) and Clause (b)(ii) of Sub-section (2) of Section 4 of the Act and the notice
Ex.B-7 issued under Sub-section (1) of Section 5 of the Act have been properly issued. Merely because, the issuance of notices Exs.B-6 and B-7
have not been stated in the plaint, it cannot be said that the revision petitioner has suppressed the facts. Further, since, no immediate action was
initiated pursuant to the notices issued under Exs.B-6 and B-7 and the revision petitioner was allowed to continue and since notice was issued
under Ex.A-3 dated 17.7.1998 that if the rent is not paid by 19.7.1998, the eviction proceedings will be undertaken on 20.7.1998, the revision
petitioner being under threat of eviction, immediately filed the suit on 22.7.1998.
Further nothing to show that the premises was declared as an ancient monument under the Ancient Monument Preservation Act by the
Archeological Survey of India prohibiting the construction as argued by the learned counsel for the revision petitioner. Even after issuance of
notices under Exs.B-6 and B-7; Military Receivable Order was issued under Ex.A-6 during the month of July, 1998 for receiving rent and allied
charges form the revision petitioner and on the basis of which, the revision petitioner also paid rent under Exs.A-7 to A-9.
The possession of the premises said to have been taken by the respondents on 28.7.1999 by virtue of powers conferred under the Act and
pursuant to the stay granted by the first appellate Court in respect of the order of injunction of the trial Court cannot be said to be proper. Such
possession cannot be said to be lawful, since the same was taken in a hasty and hurried manner without following the procedures contemplated as
per law and though the suit and Civil Miscellaneous Appeal are pending. In the light of the discussions made above, it is clear that the revision
petitioner has not been lawfully dispossessed.
Therefore, the first appellate Court is not correct in vacating the injunction granted by the trial Court and such judgment being erroneous and
improper, is to be set aside.
In the result, the judgment dated 4.9.2001 in C.M.A.No. 106 of 1999 passed by the learned III Additional Judge, City Civil Court, Chennai is
set aside. The respondents/defendants are directed to remove the lock and hand over possession back to the revision petitioner/plaintiff before
31.8.2005. Accordingly, this Civil Revision Petition is disposed of. No costs. Consequently, the petition C.M.P.No. 10685 of 2002 is allowed
and the petition C.M.P.No. 10684 of 2002 is closed.