Skip to content


Caetano F.F. De Figueiredo Vs. State (P.W.D.) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberCivil Appeal No. 1 of 1982
Judge
Reported inAIR1983Bom285
ActsPublic Premises (Eviction of Unauthorised Occupants) Act, 1971 - Sections 1; Constitution of India - Articles 1 and 226
AppellantCaetano F.F. De Figueiredo
RespondentState (P.W.D.)
Appellant AdvocateBernardo dos Reis, Adv.
Respondent AdvocateJ. Dias, Govt. Adv.
Excerpt:
.....daman and diu.;b) the case debated on whether the order of eviction against the occupant of the government premises violated the principle of natural justice - he pleaded that he was given extension and requested for examination of the chief minister and the speaker of assembly on this account, but the request was turned down - the court ruled that it would be wrong to say that the principles of natural justice had been violated - therefore, the impugned order was vitiated and liable to be set aside. - - in any case, the extract of the relevant proceeding in the legislative assembly, which are already in the records of the proceedings held before the deputy collector and the estate officer, clearly show that the then chief minister at no juncture stated in the course of the said..........and that after liberations, he has been requested to vacate the premises and from time to time extensions to vacate the house had been granted to him as the appellant, each and every time, had been submitting that he was building his own house. however, she further added that action was being taken in the case against the appellant and when requested to clarify, she further stated that action was being taken to get the premises vacated. this being so, what the appellant intended to prove by examining the former chief minister and the speaker has already been brought on record and as such, the non-examination of smt.kakodkar and shri fugro in no manner had prejudiced the defence of the appellant. in addition, appellant did not make any effect to obtain a certified copy of the.....
Judgment:

1. Caetano F. F. defendants Figueiredo has filed an appeal under S. 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in the Court of the District Judge, Goa, Daman and Diu. Since at that time the post of District Jude was vacant, no motion of the appellant, the said appeal was transferred by this Court to the file of the Addl. District Judge, who, after haring the parties, held that he had no jurisdiction to deal with the matter because under Section 9 of the Act the appeal was to be filed before the District Judge or any other Judicial Officer designated by him, and further ordered that the relevant papers be returned to the appellant to be presented to the competent authority. Accordingly, the appellant presented the said appeal afresh before the District Judge, who in his turn held that since the appeal has been transferred from his file to the file of the Addl. District Judge, he could not deal with the matter unless so ordered by the High Court. The appellant, thereafter filed a writ petition challenging the order of the Addl. District Judge holding that he had no jurisdiction and the said writ petition was dismissed by this Court and hence the appellant moved the Supreme Court. By order dated 6th Aug., 1982, the Supreme Court was pleased to direct that:-- 'The Judicial Commissioner may himself take up this case and decide it in according with law'. Therefore, in obedience to the aforesaid order of the Supreme Court, the abovementioned appeal was taken up by this Court and will be disposed of by this judgment.

2. In short, the facts of the case are that the appellant is occupying a Government building situated within the area of the water supply installations relating to the city of Panaji and surrounding areas, which has been declared as a protected or prohibited area under the Indian Official Secretes Act (1923). A notice dated 19-5-79 was served on the appellant to show cause why an order of eviction should not be made against him. The appellant showed cause alleging that he had been given an extension of time to remain in the premises and further that the same were not public premises. During the proceedings, the appellant herein submitted that the order of extension has been passed by the Government and this could be verified from the statement made on the floor of the Legislative Assembly by the then chief Minister, Smt. Shashikala Kaodkar. The appellant applied that Smt. Kakodkar and the then Speaker Shri Fugro be examined as witnesses in the case . The Deputy Collector and Estate Officer did not allow the said application on the ground that the alleged extension was to be proved by the appellant by exhibiting the respective order and ultimately orders the eviction of the appellant by judgment dated 25-10-79.

3. The appellant challenges this judgment and order on several grounds which are laid down in the Memo of Appeal. But at the hearing of the case. Mr. B. Reis, learned advocate appearing for him, did not press all the aforesaid grounds and has restricted the filed of his attack to two points, namely, (1) that the Act is not applicable to this territory; and (2) that the order is against the principles of natural justice.

4. It was first contended by Mr. Reis that the Act is not applicable to the facts and circumstance of this case because Entry 18 in the List II of Schedule 7 of the Constitution keeps in the State, List, land, rights in or over land, land tenures including the relation of landlord and tenant. In the present case, there is a relationship of landlord and tenant between the Government and the appellant and therefore the matter falls within the State List and as such, the Act is not applicable. Reliance was placed in support of this contention in the case of The Management of Advance Insurance Ltd. V. Shri. Gurudasmal : [1970]3SCR881 . It was however argued by Mr. J. Dias, learned Government advocate that the definition of 'Public Premises' given in Section 2(e) of the Act is per se sufficient to show that the contention of the appellant that the Act is not applicable is not sustainable. Indeed, a 'Union Territory' is not a 'state and List II of Schedule 7 of the Constitution has no application to a Union Territory. Reliance was placed in the case of 'S. P. Prabhu v. V. V. Joshi (AIR 1975 Goa 19).

5. Section 2(e) of the Act defines 'Public Premises' as meaning any premises belonging to or taken on lease, requisitioned by or on behalf of the Central Government and included 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 in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, and (ii) any Corporation established by or under a Central wand owner or controlled by the Central Government. Now, it is an undisputed fact that the premises occupied by the appellant are situated within the area where the water reservoir at Altinho, Panaji is installed and that the said area has been declared by Order No. HD-EMR (9)/16/66 dated 24th Oct., 1968 as a prohibited area under the India Official Secrets (1923). This being so, it appears to maintenance that the contention of Mr. Reis that the said area belongs to the State Government is not sustainable. Besides, a rightly pointed out by Mr. Dias, a Union Territory is not a State and List II of the Seventh Schedule to the Constitution has no application to a Union Territory. I am fortified in this view by the ruling of this very Court in the case of S. P. Prabhu v. V. V. Joshi (AIR 1975 Goa 19), wherein it was observed that premises belonging to a State are not covered by the Act and for this reason the State have enacted their own statutes on similar lines. It was further observed that a Union Territory is not a State and List II of the Seventh Schedule has no application to such a territory which is being administered directly by the President and is not a State for the purpose of Article 1 of the Constitution. This ruling of the Supreme Court in the case of the Management of Advance Insurance Co. Ltd., v. Shri Gurudasmal and others (supra) appears to be distinguishable and therefore, not attracted to the facts of the case.

6. The next contention of Mr. Reis has been that the impugned order is vitiated because no fair opportunity was given to the appellant to put up his own defence. In fact, he applied to the Estate Officer that Smt. Shashikala Kakodkar and Shri N. Fugro be examined as witnesses to prove that the Government has granted extension to the appellant to remain in the suit premises. The learned Estate Officer however, did not allow the application and therefore deprive the appellant from putting up his defence and from proving an essential element of his defence. This is against the principles of natural justice and therefore, the order on this ground alone is vitiated. Reliance was placed in support of these submissions in the case of 'State of Kerala v. K. T. Shaduli Grocery Dealer : AIR1977SC1627 ; Union of India v. T. R. Varma' : (1958)IILLJ259SC and in 'M/s. Wire-netting Stores v. Delhi Development Authority' : (1969)3SCC415 . Dealing with these submissions of the learned advocate for the appellant applied for the examination of the former Chief Minister and Speaker only for the purpose of brining on records what they had stated on the floor of the Legislative Assembly. However, as provided in S. 78(2) of the Evidence Act the proceedings of the Legislative Assembly are to be proved by producing the journals and the proceedings of the particular day. Appellant, therefore, ought to have produced either the said journals insofar as the statement about the extension are concerned, or he was bound to produce the order granting the extension. In any case, the extract of the relevant proceeding in the Legislative Assembly, which are already in the records of the proceedings held before the Deputy Collector and the Estate Officer, clearly show that the then Chief Minister at no juncture stated in the course of the said proceedings that extension has been granted to the applicant to continue in the premises beyond 24th Feb., 1976. On the country, a careful reading of the answers given by Smt. Kakodkar to the question put to her show that what she stated in this connection is that the premises had been given on lease prior to liberation to the appellant and that after liberations, he has been requested to vacate the premises and from time to time extensions to vacate the house had been granted to him as the appellant, each and every time, had been submitting that he was building his own house. However, she further added that action was being taken in the case against the appellant and when requested to clarify, she further stated that action was being taken to get the premises vacated. This being so, what the appellant intended to prove by examining the former Chief Minister and the Speaker has already been brought on record and as such, the non-examination of Smt.Kakodkar and Shri Fugro in no manner had prejudiced the defence of the appellant. In addition, appellant did not make any effect to obtain a certified copy of the alleged order of extension which actually did not exist. Therefore, it is obvious that the appellant order of extension which actually did not exist. Therefore, it is obvious that the appellant would be unable to produce a copy of the aforesaid order.

7. There is no dispute that the appellant has been occupying the aforesaid premises since sometime before liberation under a lease agreement. It is also not disputed that after the liberation the lease was terminated and the appellant was directed to vacate the premises within a specified time. However, he succeeded in getting extension of time to vacant the house from time to time, always on the ground that he had initiated the construction of a residential house for himself. Further, it is not disputed that the said premises are situated within the area of panaji water reservoir at Altinho, an area which was declared a prohibited place by Order No. HD-EMR (9)/16/66 dated 24th Oct. 1968. The only point in dispute is whether or not a further extension was granted to the appellant, allowing him to stay in the premises beyond 24th Feb., 1976, which is the date on which the last known granted extension was expiring. On going though the records of the case, it is clear that the stand of the concerned Department particularly the P. Act. D., is that no further extension was granted to the appellant beyond the aforesaid 24th Feb., 1976. Therefore, the appellant's cause rested exclusively on some statement made by the former Chief Minister of this territory, Smt. Shashikala Kakodkar on the floor of the Assembly in response to some queries put to her in the course of the Assembly proceedings in respect of the occupation of the premises by the appellant. The extracts of the said proceedings are in the records of the proceeding of the Deputy Collector and Estate Office, North Goa Division (File No. ADM/EVIC/F.7/69 -- State (P. Act. D.) v.Shri Caetano Figeriado, Panji). On going though the aforesaid record of the proceedings in the Legislative Assembly, it becomes exceedingly clear that at no time the former Chief Minister stated that an extension beyond 24-2-76 had been granted to the appellant herein respondent main in the aforesaid premises. On the contrary, it becomes clear from the said proceeding that what was stated is that action was being taken by the Government against the appellant herein to get the premises vacated implying that no further extension has been granted.

8. Mr. Reis, however, contended that by not being allowed to amines Smt. Shashikala Kakodkar, the appellant was deprived of his right of putting a proper defence and this is against the principles of natural jurisdiction. Reliance was place by him in the authorities cited above. In M/s. Wire-netting Stores v. The Delhi D. A., : (1969)3SCC415 (supra), the Supreme Court held that it was the burden of the Authority to establish that they were acting in accordance with law and that to opportunity ought to have been given to the petitioner therein for showing cause against the proposed eviction. Then, in the case of Union of India v. T. R. Varma (AIR 1957 SCHEDULE 882) (supra) it was held that the law requires that the Tribunal should observe the rules of natural justice in the conduct of the inquiry and if they do so, that decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which could obtains in a Court of law. It was further observed that, stating it broadly and without intending it to be exhaustive, the rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relied and that the evidence of the opponent should be taken in his presence and that he should be given the opportunity of cross-examining the witnesses. And in the State of Kerala v. K. T Shaduli Grocery Dealer : AIR1977SC1627 (supra) it was held that the rules of the natural justice are to be observed by the authorities in the discharge of even quasi-judicial functions. The above rulings of the Supreme Court, however, appear to me to be not applicable to the facts and circumstances of the case. In this case in fact, it show cause notice was given to the appellant herein and he availed himself of the opportunity to show cause against the proposed eviction from the premises. The only thing that the Estate Officer did was to turn down his application to examine as his witnesses the former Chief Minister and Speaker of the Legislative Assembly on the ground that the extension was to be proved by the appellant by the appellant by producing the relevant order of the extension. I do not see any fault in this reasoning. for, it was the duty of the appellant, if at all the extension has been granted to him, to obtain a copy of the order right from the beginning. By saying that no copy was given to him and that he wants to prove it through the statements made by the Chief Minister on the floor of the Assembly, it seems to maintenance that the appellant is attempting to prove the same fact by wrong means. In any case, as rightly pointed out by Mr. Dias, the records of the Legislative Assembly were before the Estate Officer and such records clearly show that no extension has been granted by the Government to the appellant. Besides, under Section 78(2) of the Evidence Act the proceedings of the Legislative Assembly are to be proved by copies and journals published by the Government in connection with the said proceedings. This being so, it would be wrong to say that the principles of natural justice ahd been violated and therefore, the impugned order is vitiated and liable to be set aside.

9. In this view of the matter, I find no substance in this appeal and accordingly dismiss it with costs. However, as the appellant is to be evicted from the premises where he is residing, one month's time from today is given to him to hand over vacant possession of the premises to the respondent.

10. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //