Shantaben Mohan Rathod & Ors. v. International Airport Authority

the possession of the defendant becomes adverse to the plaintiff. Various documents were relied upon by the petitioners before the Estate Officer. We are told that there are some 28 documents, though the principal one are annexed to this petition. Thus, for example reliance is placed on a notice issued by Bombay Municipal Corporation u/s 381 of the Bombay Municipal Corporations Act some time in May 1957. The notice called upon this Mr.Mohan Rathod to fill the pit in the agricultural field which was stated to be filled with stagnant water causing breeding of mosquitoes creating a nuisance. Thereafter reliance is placed on another notice ((-4-)) dated 18th November 1963 issued by the Bombay Municipal Corporation concerning clogging of a Nala due to fall of a tree in the concerned land and asking Mr.Rathod, the occupier to remove the tree and clear the Nala. It is submitted on behalf of petitioners that the Estate Officer did not realise the import of these document which indicated that the concerned land was in possession of petitioners from May 1957 onwards.

Reliance was placed on a judgement of the Apex Court in the case of Government of A.P. Vs. T.Krishnarao reported in AIR-1982-SC-1081. It was submitted that if there was a bonafide dispute regarding title of the Government to any property, the Government could not take resort to the provisions of an enactment providing for summary eviction. It was then submitted that there was a delay on the part of the Estate Officer to the tune of a year and half in passing the original order after the arguments were concluded and also that the judgement of Principal Judge of City Civil Court does not discuss the various submissions which were placed before him.

Mr.Samdani appearing for respondents on the ((-5-)) other hand drew our attention to the fact that a suit had been filed by this Mr.Rathod in the City Civil Court, Bombay against International Airport Authority bearing No.7537 of 1995. It was contended in that suit that this Mr.Rathod was in sole, exclusive, peaceful and uninterrupted use, possession and occupation of this land. The plea of adverse possession was raised in paragraphs 2 to 4 of the said plaint. The said plaintiff feared eviction and dispossession of their possession. Thus although wider relief in the nature of declaration of ownership was expected to be sought, the principal prayer of the suit was restricted only to a permanent injunction restricting respondent no.1 herein, their agents and servants from disturbing and interfering in any manner whatsoever with the possession of this Mr.Rathod over the concerned parcel of lands.

It is material to note that during pendency of this suit the above referred show cause notice under Public Premises Act was issued on 11th October 2001. Thereafter the suit was disposed off on 19th March 2002 without leading any evidence by Mr.Rathod. Operating order on the suit reads as follows :- ((-6-)) ORDER

1. Subject to the clarification made in the concluding paragraph hereof the defendants are permanently restrained from dispossessing the plaintiff from the suit premises or interfering with the possession thereof otherwise than due process of law.

2. In the event of the proceedings under the Public Premises Act finally being decided against the plaintiff, the said order be not given effect to for a period of two weeks, from its communication to the plaintiff.

3. The suit is decreed in these terms, in the circumstances no order as to costs. "

Mr.Samdani points out that thereafter the petitioners herein appeared before the Estate Officer and then the eviction order has come to be passed. In his submission the officer concerned as well as the Principal Judge have considered the material on record. They have discarded a good number of documents including two of the Municipal Corporation on which reliance is placed by disputing the authenticity thereof. In his submission the question of title could not be raised before the Estate Officer. But in any case on the material placed before him the Estate Officer was correct in coming to the conclusion that there was no such continuous ((-7-)) undisturbed occupation and possession of the petitioners as claimed by them. He drew our attention to a document on which reliance was placed by the petitioner namely letter dated 25th May 1976 addressed by Airport Bhajipala Khetiwadi Mandal which is supposed to be the association of occupants of this very parcel of land.

Now, as can be seen from the Public Premises Act, the Inquiry Officer while resuming the land belonging to the public authority, is required to give a show cause notice calling upon the party concerned to show cause and thereafter under section 5 after considering the cause if he is satisfied that the Public Premises are in unauthorised occupation, he may make an order of eviction. That is the order passed by him and which is confirmed in the impugned order in appeal. The concept of "Unauthorised Occupation" ((-9-)) is defined under section 2(g) of the Act which reads thus :- "unauthorised occupation", in relation to "unauthorised occupation" "unauthorised occupation" 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".

Mr.Korde, learned counsel for the petitioners submitted that under section 15 of this Act there is a bar of jurisdiction and no Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises. That is undoubtedly so but that pre-supposes that the premises are public premises and with respect to such premises the notice for eviction is issued and thereafter it is followed by necessary inquiry. A party who wants to contend that the premises are no longer ((-11-)) public premises cannot get such a declaration from an Estate Officer. The party has to take it from a Civil Court which alone is competent to decide it. As far as this aspect is concerned, a similar plea was sought to be raised in the Apex Anamallai Club Vs. Government of T.N. Court in Anamallai Club Vs. Government of T.N. Anamallai Club Vs.

As far as judgement relied upon by the petitioners is concerned, as can be seen therefrom that the Osmania University had first filed a suit for eviction of persons concerned and having failed to get a decree therein it resorted to provisions of Public Premises Act. It is in this context that observations are made in para 7 that the persons occupying the land had a bonafide claim to litigate and they could not be evicted except by due process of law and that summary remedy prescribed in section 6 of the concerned Act was not the kind of legal process which is suited to an adjudication of complicated questions of title. In fact the proposition runs adverse to the petitioners.

That apart in the instant case the ((-13-)) petitioners had filed a suit and in the suit though they raised various pleas based on their alleged adverse possession, yet they confined their prayers only to injunction and did not seek any declaration of their claimed ownership which they ought to have sought. This being the position, such a prayer once given up by not seeking it, could not be permitted to be raised at a later point of time even on the basis of provisions of Order II, Rule 2 of Code of Civil Procedure.

Mr.Korde applies for continuation of stay to file an Special Leave Petition. Mr.Samdani opposes the request. We have already held that the petitioners have no case, yet with a view not to deny an opportunity, the stay granted by the Lower Court will continue for a period of six weeks hereafter. (H.L.GOKHALE, J.)

(S.C.DHARMADHIKARI, J.)