* EVICTION OF AN UNAUTHORIZED OCCUPANT

IN THE COURT OF ADDITIOAL DISTRICT JUDGE

FAST TRACK COURT, 1ST COURT, ASANSOL.

Misc Appeal 5 of 2001 /14 of 2000

Tarak Nath Sengupta ………The Petitioner.

versus

1. Estate Officer, Indian Iron & Steel Co. Ltd.

2. Indian Iron & Steel Co. Ltd…………the Respondents.

Present: Harjinder Singh, Additional District Judge.

Dated: The 26th day of May, 2003.

JUDGEMENT

            The petitioner Tarak Nath Sengupta on 1.3.2000 filed this Misc. Appeal against Estate Officer, Indian Iron and Steel Co. Ltd. Burnpur and Indian Iron & Steel Co. Ltd. represented by its Managing Director challenging the Order dated 20.1.1999 passed by ld. Estate Officer, Indian Iron & Steel Co. Ltd. in Case No.ES/3 of 1999. The appellant in his appeal alleged that he was illegally discharged from his service by the respondents in the year 1971 and he referred the dispute to Industrial Tribunal at Durgapur for adjudication. Ld. Tribunal declared that the discharge was illegal but failed to pass any order with regard to re-instatement of the petitioner. Thereafter, the appellant moved Hon’ble High Court and their Lordship vide their Order dated 8.8.1990 directed the company to re-instate the appellant and he was ultimately re-instated on 11.3.94 but he was compelled to sign an illegal agreement. The appellant further alleged that he subsequently challenged the said agreement before Hon’ble High Court at Calcutta and His Lordship directed the Company to follow their order dated 8.8.90 in CR.No.7252 (W) of 1996 vide their order dt. 4.9.98. Thereafter, the company preferred an appeal before a Divisional Bench at Calcutta Higth Court against the said order dt. 4.9.98 and their Lordship allowed the prayer of their Company and liberty was given to the appellant to seek alternative remedy vide order dt. 19.3.99. Thereafter, the appellant filed an SLP bearing No.14828 of 1999 before the Hon’ble  Supreme Court against the order passed by their Lordship of High Court and Hon’ble Supreme Court allowed liberty to the appellant to pursue alternative remedy against the said illegal agreement vide their order dt. 15.10.99. The appellant further alleged that during the pendency of the said appeal before Supreme Court the Respondent No.1 started  a Case No.ES/3 of 1999 under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 against the appellant and the appellant was superannuated on 31.12.98 from his service, that the appellant appeared in the said proceedings and prayed for supply of necessary particulars for filing objections but the Ld. Estate Officer decided the case ex-Parte without giving any further opportunity of being heard to the petitioner.

            Under these circumstances the petitioner appellant prayed for setting aside the order passed by the Ld. Estate Officer of Indian Iron and Steel Company Ltd. The Misc. Appeal petition was accompanied by a petition under Section 5 of the Limitation Act praying condonation of delay in filing the Misc. Appeal on the grounds that he was busy pursuing his case in the Hon’ble Supreme Court and he came to learn about the order of eviction passed by the Ld. Estate Officer much later and prayed for condonation of delay. The said petition for condonation of delay was allowed vide this case order No.18 dt. 23.8.2001. Ld. Advocate for the respondent contested the appeal and submitted that the same deserves to be dismissed and she further submitted that grounds for dismissal are the same as taken by her client in their Written Objection in connection with the petition u/Sec.5 of the Limitation Act. Ld. Advocate for the Respondent submitted the respondent was allotted a Quarter No. G-13/2, Hospital Road, Burnpur and the appellant is unauthorisingly occupying the said quarter even after his retirement/superannuation on 31.12.1998. The Respondent denied that the Respondent has illegally discharged the appellant. As a matter of fact, the respondent6 was discharged from his service with effect from 24.1.1971 on account of his long  unauthorized absence and the appellant raised an Industrial dispute and ultimately he was allowed to join by the decision of the Hon’ble High Court, Calcutta. The respondent denied that the appellant was compelled to sign on any illegal agreement. According to them the agreement was signed between the parties on mutual consent. The respondents denied that the ld. Estate Officer passed any illegal order and prayed for dismissal of the appeal with cost.

                                    THE POINTS FOR DETERMINATION

1.         Did the Ld. Estate Officer pass any order of eviction illegally as alleged?

2.         Has the appellant petitioner any right to continue staying in the quarter allotted to him on any of the grounds relied upon by him?

3.         Are there any grounds to set aside the impugned order of eviction passed by the Ld. Estate Officer?

            DECISION WITH REASONS

Points Nos.1 to 3:- All these 3 points are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions. From the list of documents supplied by the petitioner, it appears that Hon’ble Supreme Court in the petition(s) for Special Leave to Appeal (Civil) No.14828/1999 (from the Judgement and Order dated 19-03-1999 in MAT 3432/98 of the High Court of Calcutta) passed the following order on 15.10.1999. “ At the request of learned Counsel for the petitioner, this Special Leave Petition is permitted to be withdrawn as the petitioner wants to pursue alternate remedy.” Hon’ble Calcutta High Court in their order dt. 27.2.2002 passed in W.P. 7158(W) pf 2001 briefly recorded the details of facts as follows before refusing to entertain the petition filed by the appellant, “The petitioner’s service was terminated. An industrial dispute was raised. The Industrial Tribunal passed an award in favour of the employer. That order was challenged in a writ petition before this Court being Writ Petition No.5070(W) of 1984. By an order dated 8th  August, 1990 the said writ petition was allowed and order of the learned Tribunal was set aside. The petitioner was granted benefit of reinstatement except the back wages from 1971 till the date of his joining. This order was sought to be recalled by an application filed on behalf of the employer. By an order dated 15th December,    1993 passed in C.O. 5070(W) of 1984 the said application for recalling was rejected with the observation that the petitioner shall be entitled to back wages in terms of the Judgement delivered on 8th August, 1990.

            Thereafter, a Memorandum of settlement was alleged to have been entered into by the employer and the employee, being the petitioner herein, at bipartite level. In terms of the said settlement certain amount was to be paid to the petitioner. Accordingly, Rs.103,500 was payable to the petitioner and it was so paid to him. The petitioner had challenged the said settlement after having received tshe amount in terms of the settlement before this Court in Writ petition No. 7252(W) of 1996. By an order dated 4th September, 1998 this writ petition was disposed by directing the employer to implement the order dated 8th August, 1990 and 15th January, 1993 passed in C.R. 5070(w) of 1984. However the amount already paid was directed to be deposited, in terms of the said order.

            MAT 3432 of 1998 was preferred against the said order dated 4th September, 1998. The Appeal Court had observed that the question which has arisen since been decided in the said decision, was a disputed question of fact. The Writ Jurisdiction cannot be invoked for determination of disputed quest of fact. A settlement cannot be binding as tripartite settlement, but it can very well be a bipartite settlement which would bind the parties depending on the question as to its validity, which can be determined only through the Industrial Court, since such a question would be a dispute within the meaning of Section 2 (K) of the Industrial Dispute Act. Therefore, the order appealed against was set aside with the observation that the question should be agitated before the appropriate authority on the basis of adequate evidence. At the same time, liberty was given to the petitioner/employee to avail of the alternative remedy.

            An S.L.P. was preferred against the said order of the Division Bench. By an order dated 15th October, 199, the S.L.P. was withdrawn on the submission of the Counsel for the petitioner that the petitioner wants to pursue alternative remedy. Under the circumstances, the alternative remedy that can be pursued by the petitioner is the remedy as observed by the Division Bench in MAT 3432 of 1998 being, being the Industrial Tribunal.

            Me. Ghoshal, however, points out that two suits have been filed in ;the Civil Court one of which appears to have been withdrawn and other is pending. However, the petitioner contends that both the suits have since been withdrawn.  Be that as it may, in view of the Division Bench Judgement so far as the dispute with regard to the validity of the agreement or settlement is concerned, can be questioned before the Industrial Tribunal and not by way of Writ Jurisdition. In as much as this Court once  decided in favour of the petitioner, which was ultimately set aside by the Appellate Court.  So far as the question raised before the Hon’ble High Court is concerned, this question is hit by the principles of Res Judicata to the extent that such a dispute is to be decided by the Industrial Tribunal. The petitioner has also raised the question or retaining the quarter. whether he would be entitled to retain the quarter or not cannot be decided be decided by this Court in view of the division Bench Judgement, which can be agitated before the Industrial Tribunal or a Civil Court, as the case may be since this question is also dependent on the question of genuineness of the said settlement.

            In the circumstances, this writ petition cannot be entertained by this Court…..”

            We have seen that the Hon’ble Calcutta High Court while disposing of Writ Petition filed by the petitioner took the view that  in a Writ Petition a disputed question of fact cannot be decided. There being no order of stay by any Superior Court against the Misc. Appeal pending before this Court, this Court is bound to decide the matter challenged by the petitioner appellant in this Misc. Appeal.

            The term unauthorized occupation has been defined in Section 2(g) of the Public Premises ( Eviction of unauthorised Occupants ) Act, 1971 as follows:- “Unauthorised Occupation, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation,  by any person of the public premises without authority for such occupation, and includes the continuance in occupation of 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.’

            As per standing order No. 25(xvii), unauthorized use of occupation of  Company’s land, quarters or properties constitute an act of mis-conduct within the meaning of standing orders of Burnpur Works and Kulti Works issued by the IISCO. Therefore, the duty of this Court is to find out whether the petitioner appellant is in unauthorized occupation of the public premises or not?

            From the definition of unauthorised occupation as stated above it is absolutely clear that an employee who has retired from service or has been transferred from one place to another has no right to continue occupying the quarter belonging to the Company at the place where he was previously working. The petitioner appellant in Para-8 of his Misc. Appeal petitionstated that he was retired on 31.12.1998. The petitioner in his Misc. Appeal application dated 1.3.2000 stated his age to be 61 years. Even in the affidavit sworn by him in connection with the petition u/Sec. 5 of the Limitation Act filed on the same date he mentioned his age to be 61 years. In other words, at present the petitioner appellant is aged about 63 to 64 years. In other words, the petitioner appellant has already crossed the age of retirement/superannuation. Therefore, even assuming that the petitioner appellant succeeds in getting the so called agreement between him and the company executed on 11.3.94 nullified by a competent Court while seeking an alternative remedy as permitted by Hon’ble Supreme Court, he may at best get monetary benefits flowing out of such nullification of the said agreement as the question of his reinstatement/re-employment in the said company has become impossible as because the appellant has already crossed the age of superannuation. Therefore, the petitioner appellant has no right to continue occupying the quarter that was allotted to him while he was in service.

            From the L.C.R. I find that the Ld. Estate Officer gave enough opportunity to the appellant to file show-cause and the proceedings itself started only after the date of superannuation of the petitioner appellant. From the L.C.R. I find that the services of the appellant were terminated with effect from 31.12.1998 vide order No.C.P.D./5449 dt. 21.11.1998.

            Under such circumstances, I see no illegality in the order of eviction passed by the Ld. Estate Officer. As such, all the 3 points are decided against the petitioner appellant and in favour of the respondents. C.F. paid is correct. Hence, it is,

ORDERED

that the Misc. Appeal be and the same is dismissed on contest without cost. The Impugned Order of Eviction dated 7.1.2000 passed by the Ld. Estate Officer is hereby affirmed. The petitioner appellant is hereby directed to vacate the premises in question within a month from the date of this order  failing which the Estate Officer shall evict the petitioner appellant and members of his family from the premises in question u/Section 5(2) of the Public Premises (Eviction of Unauthorised Occupation) Act, 1971.

            Let L.C.R along with a copy of this order be sent to the Court below at once for necessary action.

(Harjinder Singh)

Additional District Judge,

Fast Track 1st Court,

ASANSOL.