Public Premises (Eviction of Unauthorised Occupants) Act, 1971: ss. 4(1) and 4(2)(b)(ii) – Issue of notice to show cause against order of eviction – Summary remedy of the State qua person in possession of the land – On facts, predecessor of the appellants leased their property to the Government twice – Said land was requisitioned, derequisitioned and thereafter again requisitioned – Issuance of notice by Estate Officer u/ss. 4(1) and 4(2)(b)(ii), to the appellants, treating them to be unauthorized occupants of the suit property – Notice upheld by the High Court – On appeal, held: Appellants raised a bona fide dispute on the question of ownership of the suit property qua Union of India – A fortiori, in such case, Estate Officer has no jurisdiction to invoke the powers u/s. 4 by resorting to a summary procedure prescribed in the Act by sending a notice u/s. 4 for appellant’s eviction from the suit property – Facts and the documents establish that there exists a bona fide long standing dispute as to who is the owner of the suit propertyappellants or Union of India – Union of India itself stated in this Court in earlier round of litigation that they would seek dispossession of the appellants from the property in accordance with law and, if need be, by filing civil suit in the civil court, however, the same was not resorted to – Respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the Act, which is otherwise not available to them – Effect of quashing the resumption notice issued by the respondents by the High Court in relation to the suit property was that Union of India was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property – Civil court alone could try and decide – Thus, the notice issued by the Estate Officer is quashed.
Precedent: Binding effect of – Reading a decision to find out ratio decidendi – Three Judge Bench decisions – Judgment authored by one judge, and the other two judges concurred with the said view and the reasoning – Two concurring judges also supplemented their individual concurring reasoning on the same lines on which the lead judge expressed his view – No dissent inter se judges on any issue – Held: Is a law by majority and thus, a law laid down by the Court u/Art. 141 – Constitution of India – Art. 141.
Doctrines/Principles: Principle of merger – Applicability of – Held: For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record findings on its merits – If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field – On facts, this Court while disposing of the appeals by its order did not go into the merits of the various contentions which were decided by the High Court in its order and disposed of the appeal on the statement made by the respondents that they would take recourse to the remedy of the civil court by filing a civil suit – Thus, the principle of merger would not operate.
Allowing the appeal, the Court
HELD: 1.1 The submission of the counsel for the respondent that the view expressed by A.P. Sen J. in Paras 8687 in Express Newspaper case could at best be regarded as his own view but not the view of the Court by majority because other two Judges (E.S. Venkataramiah J. and R.B. Mishra J.) did not express any opinion on this question, thus, this Court should not place any reliance on the statement of law laid down in Paras 8687, cannot be accepted. [Paras 51-52][240-B, C]
1.2 Keeping in view, the reasoning of Lord Esher M.R. in the Guardian’s case when the statement of law laid down in Express Newspaper decision is examined, the reasoning of A.P. Sen J. contained in Para 86-87 is the law laid down on behalf of all the three Judges. It is a law by majority and is thus, a law laid down by the Court under Article 141 of the Constitution. It is for the reasons that though the lead judgment was authored by A.P. Sen J., the other two Judges concurred with the view and the reasoning of A.P. Sen J; both the concurring Judges also expressed their individual views on the question on the same lines on which A.P. Sen J. expressed his view and there is no dissent inter se Lordships on any issue much less on the issue with which this Court is concerned in this appeal. The law laid down in the lead judgment in Express Newspaper’s case is the law by three Hon’ble Judges who constituted the Bench and thus, binds all the Courts in the country under Article 141 of the Constitution. It satisfies the test laid down by Lord Esher M.R. in the case of The Guardian’s case. [Paras 56, 57, 58][241-G, H; 242-A-C]
Express Newspapers v. U.O.I. (1986) 1 SCC 133 : [1985] 3 Suppl. SCR 382 – explained.
The Guardians of the Poor of the West Derby Union v. The Guardians of the Poor of the Atcham Union Queen’s Bench 1889 (Vol. XXIV) 117 – referred to.
2.1 Keeping in view the statement of law laid down by this Court in Kaiser I Hind’s case and Northern India’s case, on examination of the facts of the instant case, there is no hesitation in holding that the appellants have raised a bona fide dispute on the question of ownership of the suit property qua respondent No.1 (Union of India). [Para 64][243-F]
2.2 A fortiori, in such case, respondent No. 2 has no jurisdiction to invoke the powers under section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for appellant’s eviction from the suit property. First, the facts set out and the documents filed in their support, in no uncertain terms, establish that there exists a bona fide long standing dispute as to who is the owner of the suit property-the appellants or Respondent No.1 (Union of India). Second, respondent No.1 itself admitted that there exists a bona fide dispute between the appellants and respondent No.1 (Union of India) over the suit property involving disputed questions of facts. Third, respondent No.1 (Union of India) itself stated in this Court in earlier round of litigation that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them. Fourth, this Court while granting special leave to appeal had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to. Fifth, the effect of quashing the resumption notice issued by the respondents by the High Court in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act. [Paras 65-71][243-G, H; 244-A-F]
3. The principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field. As to whether judgment rendered by the High Court stood merged in the order of this Court dated 04.08.1998, this Court while disposing of the appeals by its order did not go into the merits of the various contentions which were decided by the High Court in its order and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1Union of India would take recourse to the remedy of the civil court by filing a civil suit. Indeed, in the light of such statement made by the respondents (appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate. [Paras 72-75][244-G, H; 245-A-D]
Shanmugaval Nadar v. State of Tamil Nadu (1989) 4 SCC 187 : [1989] 3 SCR 488 – relied on.
4. The respondents submitted that there lies a distinction between the two types of tribunals – one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more, and on the basis thereof, the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act, cannot be accepted. Once in the case of Kaiser-I Hind it has been laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of law which deals with the PP Act. [Paras 76-78][245-E-G]
Kaiser-I-Hind Pvt. Ltd. v. National Textile
Corp.(Maharashtra North) Ltd. (2002) 8 SCC 182 : [2002] 2 Suppl. SCR 555 – followed.
Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi [1959] Supp 1 SCR 733 – distinguished.
5. The submission that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and is rejected. Firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition. [Para 80][246-B, C] Siemens Ltd. vs. State of Maharashtra (2006) 12 SCC
33 : [2006] Suppl. SCR 925; Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 : [1998]
2 Suppl. SCR 359 – relied on.
6. The impugned order is set aside. As a consequence, the writ petition filed by the appellants is allowed and the notice issued by respondent No.2 impugned in the writ petition is quashed by issuance of writ of certiorari. [Para 83][246-F] Phiroze Temulji Anklesaria v. H.C. Vashistha AIR 1980 Bombay 9; State of Orissa v. Ram Chandra Dev AIR 1964 SC 685; Western Coalfields Ltd. & Anr. v. Ballapur Collieries Company & Ors. (2019) 2 SCC 327; M/s. Ballapur Collieries Company & Ors. v. Estate Officer & Ors. (Judgment dated 22.01.2007 of the Bombay High Court in Civil Revision Application No.801 of 2002 and Civil Revision Application No.803 of 2003; State of U.P. & Anr. v. Zia Khan (1998) 8 SCC 483; State of A.P. v. Thummala Krishna Rao (1982) 2 SCC 134; State of Rahasthan v. Padmavatidevi (1995) Suppl
2 SCC 872; Northern India Caterers (P) Ltd. v. State of Punjab AIR 1967 SC 1581 : [1967] SCR 399 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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