Whether The Power Railway Authorities To Evict An Unauthorised Occupant Of Property Owned By The Railways Is Unrestricted: Calcutta HC Refers To Larger Bench
In a writ petition challenging a General Notice for eviction of commercial plots over Kharagpore Division of the South Eastern Railway Justice Sabyasachi Bhattacharyya looks into the relation between the power railway authorities to evict an unauthorised occupant of property owned by the railways and its restriction, if exists any in Public Premises (Eviction of Unauthorised Occupants)...
In a writ petition challenging a General Notice for eviction of commercial plots over Kharagpore Division of the South Eastern Railway Justice Sabyasachi Bhattacharyya looks into the relation between the power railway authorities to evict an unauthorised occupant of property owned by the railways and its restriction, if exists any in Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and The West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962. Noting on decisions of three Single Judges of Calcutta High Court have been taken a contrary view, Justice Sabyasachi Bhattacharyya sends the matter to the Chief Justice of Calcutta High Court to be referred to a larger bench.
In this case, the petitioner companies have been occupying the disputed premises by virtue of leave and licence granted by the Railway Authorities for quite a long time. Occupation charges have been paid by the petitioners and received by the Railway-Authorities, much after the issuance of the impugned notice and even five years into pendency of the present writ petition.
Arguments of the Parties
The petitioner, submitted that the Notice was apparently issued under Section 147 of the Railways Act, 1989 (the 1989 Act) which confers unbridled power on the railway-authorities to evict occupants arbitrarily without following due process of law and hence, ought to be declared ultra vires the Constitution. Advocate Sarajit Sen, appearing for the petitioner further contended that the process the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (the 1971 Act) provides for a detailed procedure and right of show cause to the occupants prior to such eviction, even if an unauthorized occupant. This gives rise, because Section 147 does not have a non-obstante clause, to the possibilities of unequal usage of the two in respect of different occupants. It was further argued that clause (2) of the section that enables the railway authority to remove the illegal occupants, is subject to clause (1) of the section; thus, without determining, upon hearing the occupant, that the said occupant is in illegal or unlawful occupation of the premises, no proceedings for eviction or removal can be undertaken.
Regarding the involvement of the 1971 Act, it was submitted by the Petitioners that railway properties are comes under the scope of the term "public premise" as Entry No.22 of List I of the Seventh Schedule of the Constitution stipulates railways as one of the topic on which the Central Government and Section 2(e) of the 1971 Act clearly defines "public premises" as premises which are taken on lease or requisitioned or belong to the Central Government. Thus, along with the fact that Section 17 of the 1971 Act provides for delegation of the power of the Central Government to the State Government, 1971 Act is special statute in this matter.
The Respondent, on the other hand, relied upon the presumption of constitutionality of the law and contended that such exercise of eviction is not mechanical or arbitrary but pertains to a Policy matter in which courts refrain from interfering. It was further rebutted that 30 days of time was provided in the notice for vacating the premises. Hence, it cannot be termed as an arbitrary or mindless exercise. In regard to negating the involvement of Article 14 of the Constitution, the counsels appearing for the State contended that there was reasonable classification in categorizing the particular types of persons who would be labelled as 'unauthorized occupants' for the purpose of the impugned notice. Moreover, no negative equality can be claimed in law.
The main issue arose regarding the self-sufficiency of the Section 147 of the 1989 Act whereas the State relied upon two Co-ordinate Bench judgments: Dhurjyati Prasad Das vs.Union of India and other and Subrata Ghosh vs Union of India and others. Reliance was also placed on another co-ordinate bench judgement, G. Phalaguna and others Vs. The General Manager and others, holding:
in face of the clear and unambiguous provisions of Section 147(2) of the 1989 Act, there is no scope at all to hold that without initiating necessary proceedings against all the occupants of the area under the provisions of the 1971 Act, the Railway Authorities would not be entitled or empowered to evict or remove all or any of such unauthorized occupants
The counsel for the petitioner distinguished all the cases on factual dissimilarities.
Decision of the Court
While, historically comparing historically comparing the old Railways Act of 1890 Act and the new Act of 1989, the court held:
Reading Section 147 in its proper perspective, in the context of the scheme of the 1989 Act and the similar provisions in the 1890 Act, it cannot but be said, with utmost humility, that the ratio laid down in G. Phalaguna (supra) and repeated in Dhurjati Prosad Das (supra) and Subrata Ghosh (supra) is de hors the law and, hence, in the nature of per incuriam. With all due respect to the erudition and legal acumen of the learned Single Judges rendering such judgments, the opinion expressed in the said decisions, in my humble view, is patently contrary to the scheme of Section 147 in the context of the 1989 Act, as juxtaposed with similar provision in the 1890 Act, that is, Section 122 of the latter.
The court set aside the impugned notice as the respondent-authorities acted palpably without jurisdiction in issuing the impugned general notice considering that the petitioner has made out a prima facie of the Railway-authorities having accepted occupation charges at least till five years. Additionally, due process of law is required to be followed in the event the railway authorities intend to evict the writ petitioners. However, the constitutionality of Section 147 of 1989 Act stands upheld.
Concerning the three single Judges of Calcutta High Court having been taken a contrary view to that which has been expressed in this judgement matter was sent to the Hon'ble The Chief Justice for referral to a larger bench for the sake of propriety with the following question of law:
Whether, under Section 147 of the Railways Act, 1989, the Railway Authorities can evict an unauthorised occupant of property owned by the Railways without resorting to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, alternatively The West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962?
Case Title : M/s. South Bengal Automobiles and another Vs. Union of India and others
Citation: 2022 LiveLaw (Cal) 291
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