Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal NO. 1957 OF 2003   Cantonment Board and another   …Appellants

Versus

Church of North India             …Respondent

J U D G M E N T

Gokhale J.   

This  appeal  by  Special  Leave  seeks  to  challenge  the  order  

passed by a Division Bench of High Court of Rajasthan in D.B Civil Special  

Appeal (Writ) No. 753 of 1993 dated 17.5.2002 whereby the appeal filed by  

the appellants herein against the order passed by a Single Judge of that High  

Court dated 13.8.1993 in Writ  Petition No. 5281 of 1991 filed by the first  

respondent came to be dismissed. The Single Judge had allowed respondent’s  

writ petition.

2. The facts leading to this appeal are as follows:

The  respondent  herein  is  running  a  Mission  Hospital  at  

Nasirabad in the State of Rajasthan.  The Hospital building initially belonged  

to the East India Company. Later on, it belonged to the Government of India  

and it  is  under the management of the Nasirabad Cantonment which is a  

cantonment governed under the Cantonment Act,  1924.   The case of  the  

appellants is that the respondent was given the concerned premises under a

lease deed dated 1.4.1982 which expired on 31.3.1984.  The rent for the  

premises was fixed at Rs. 75 per month.  The lease deed provided in clause 2  

(iii) that the lessee shall vacate the premises before the expiry of the lease as  

and when required by the Cantonment Board provided seven days’ notice to  

this effect is given in writing.

3. The case of the appellants is that the premises were not being  

utilized fully and that the respondent had taken some other premises also.  

The  appellants  needed  the  premises.   After  the  expiry  of  the  lease  on  

31.3.1984, the Estate Officer of the Cantonment Board stopped accepting the  

rent.   

4. The appellants served a notice of seven days as required under  

Section 4 of The Public Premises (Eviction of Unauthorised Occupants) Act,  

1971 (hereinafter referred to as ‘Public Premises Act’) on 14.3.1984 and again  

on 27.3.1984.  The respondent  filed a Civil Suit No.10/1985 in the Court of  

the  Additional  Civil  Judge  No.1  at  Ajmer  to  challenge  the  notice.  The  

respondent filed an application to deposit the rent in Civil Court but that was  

not entertained.  The Civil Suit came to be dismissed on 31.7.1987 and the  

respondent applied for six months time to vacate which was accepted by the  

appellant.   The  order  passed  by the Additional  Civil  Judge,  Ajmer  in  that  

matter on 31.7.1987 reads as follows:-

”31.07.1987:  Present,  Counsel  for  the  parties.   The  learned  counsel  for  the  applicant  seeks  six  months  time  to   vacant the disputed property, the learned counsel for the non- applicant is agreeable for this request.  Hence, it is directed that   non-applicant  will  not  dispossess  the  applicant  from  the  disputed  premises,  and  he  will  be  at  liberty  to  initiate  proceedings  for  the  same  thereafter.  This  application  is  

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disposed of  with this  order,  and the file  to  be consigned to   record along with this decision.”

5. The  respondent,  however,  did  not  vacate  the  premises  as  

assured, and therefore, the appellant filed a fresh application under Section 4  

of  the  Public  Premises  Act  before  the  Estate  Officer.   The  Estate  Officer  

considered the objections filed by the respondent and then passed an order  

of eviction under Section 5 of that Act on 26.6.1991.  The order passed by  

the Estate Officer in para 7 thereof, notes that the respondent did raise the  

question of jurisdiction of the Estate Officer but only on the ground that the  

jurisdiction to evict was with the Civil Court and the action should be taken  

under  the  Transfer  of  Property  Rules.   The  Estate  Officer  rejected  that  

submission holding that the Public Premises Act was a special Act and it will  

override the provisions of the Rent Control Act.  The appeal against the order  

of the Estate Officer filed under Section 9 of the Public Premises Act was  

dismissed  by  the  District  Judge  and  hence,  the  respondent  filed  a  Writ  

Petition No. 5281 of 1991 before a Single Judge of the Rajasthan High Court.

6. The Learned Single Judge who heard the writ petition took the  

view that the provisions of the Transfer of Property Act 1882 applied to the  

Cantonments Boards.  The particular lease deed was not a registered lease  

deed as was necessary as per Section 107 of the Transfer of Property Act,  

since the period of lease was more than one year, and it was a lease for an  

immoveable property. The Learned Judge held the particular lease to be a  

lease from month to month, and therefore, there must be a 15 days’ notice to  

terminate it as required by Section 106 (1) of the Transfer of Property Act  

1882.  He held that the 7 days’ notice of termination will not be a valid one.  

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He  further  held  that  since  such  termination  had  not  taken  place,  the  

respondent could not be held to be an unauthorized occupant.  The Learned  

Judge also took the view that the order dated 31.7.1987 could not be read as  

an  undertaking  to  vacate  after  the  expiry  of  six  months.   Therefore,  the  

Learned Single Judge allowed the Writ Petition filed by the respondent and  

set aside the order passed under the Public Premises Act.  The appellants  

herein preferred an Appeal numbered as 753 of 1993 to the Division Bench.  

The Division Bench  also took the same view as the Learned Single Judge and  

dismissed the Appeal filed by the appellants herein.  The Division Bench held  

that the premises may be taken to be public premises but the respondent  

cannot be taken to be an unauthorised occupant since his right to occupy was  

not terminated by a 15 days’ notice.

7. Being aggrieved by this Judgment and order the present appeal  

has been filed.  The learned counsel appearing for the appellant submitted  

that the premises belonged to Union of India and were being managed by the  

appellant administratively under the Public Premises Act.  Section 4 of that  

Act permitted a notice of seven days, which had been given in the instant  

case.  Even the lease document also provided for a termination of the lease  

by a notice of seven days, and in any case, the action was being taken after  

the expiry of the lease period.  The lease had not been extended.  That being  

so, the respondent was in unauthorized occupation within the definition of  

‘unauthorized occupation’ under Section 2 (g) of the Public Premises Act. He  

relied upon a number of decisions to contend that the position of a lessee  

holding on under an unregistered deed which is compulsorily registrable is  

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that of a mere tenant at will, and a mere demand for possession is sufficient  

to determine the lease, and no notice under Section 106 of the Transfer of  

Property Act was necessary.  We are not required to go into this submission  

for reasons which are stated herein after.

8. The Learned Counsel for the respondent tried to refute these  

submissions by maintaining the submissions which were canvassed before the  

Court below.  The submissions of the respondent are untenable on the face of  

it, in as much as the period for which the premises were let out was over and  

obviously  the respondent  was in unauthorized occupation thereafter.   The  

appellants were therefore entitled to take recourse to law and take possession  

of the premises.  The only question is whether they had taken the correct  

course of action as permissible in law.

9. Mr. Singla, learned counsel for the respondent however, lastly  

submitted that the respondent was owner of the premises and secondly, the  

Public Premises Act did not apply to these premises also for the reason that  

the Cantonment Boards have come to be covered under the Public Premises  

Act only by Amendment Act of 1993 which came into force on 7.1.1994.  That  

is how clause (viii) ‘governing any Cantonment Board constituted under the  

Cantonment Act, 1924 (2 of 1924)’ has come to be included in the definition  

of “public premises” under section 2 (e) (2) (viii) of the Public Premises Act.  

He therefore, submitted that at the time when the proceedings were initiated  

and the order was passed under the Public Premises Act, the Estate Officer  

did not have jurisdiction to proceed under this  Act and therefore,  for this  

reason alone the eviction proceedings will have to be held as bad in law for  

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want of jurisdiction and the appeal will have to be dismissed.  He submitted  

that this was an issue with respect to having jurisdiction to deal  with the  

subject-matter and the submission can be raised at any stage of proceedings.

10. Mr. Venkataramani, learned counsel appearing for the appellant  

pointed  out  in  his  rejoinder  that  neither  of  these  two  submissions  were  

advanced any time in the past.  In any case, as far as the ownership of the  

premises  by  the  respondent  is  concerned,  no  document  has  ever  been  

produced in this behalf.  With respect to the second submission he pointed  

out that the case of the appellant was that the premises belonged to Union of  

India and the appellants were entrusted with the management thereof.  The  

Public Premises Act, therefore, applied to the concerned premises.

11. The  submission  of  Mr.  Venkataramani  that  the  question  of  

jurisdiction was not raised any time earlier is not fully correct in as much as,  

pointed out earlier, para 7 of the estate officer’s order records the objection  

to the jurisdiction of the estate officer raised by the respondent though in a  

different manner. The counsel for the respondent submitted that the issue  

which he had raised now in this court disputing the jurisdiction of the Estate  

Officer was a question of law and the matter went to the root of jurisdiction  

of the authority to pass the eviction order.  If the authority did not have the  

jurisdiction to proceed under the Public Premises Act, the eviction order could  

not be upheld.  A point about the jurisdiction can be raised even in this court  

even if it was not raised any time earlier.

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12. We have considered the submission of both the counsel.  As far  

the  first  submission  of  Mr.  Singla  viz.  that  the  premises  belong  to  the  

respondent is concerned, the same has never been raised any time before.  

On the record of the present Civil Appeal, we have the objection filed by the  

respondent before the Estate Officer, and a copy of the Writ Petition filed by  

the respondent.  Nowhere have they claimed that they own the premises. On  

the contrary, in paragraph 3 of their objections before the Estate Officer, they  

have  stated  that  the  Executive  Officer  of  the  Cantonment  Board  is  the  

Secretary and the Custodian of the property.  In Paragraph 4 of Writ Petition  

No.5281/1991, filed before the Single Judge, they have clearly stated that the  

hospital building initially belonged to the East India Company and later on had  

belonged to the Government of India.  They are not disputing the fact that a  

lease-deed was executed between the parties on 1.4.1982 whereby they were  

in occupation of the Hospital building.  In the second recital  of the lease-

deed, it is clearly stated that the lessor is the owner of the premises, and the  

premises were being let out to the hospital  run by the respondent on the  

terms contained therein.  The respondent had nowhere claimed that they own  

the land or they constructed the building thereon.  This being so, it is not  

possible to accept the first objection of Mr. Singla.   

13. As far as, the second submission of Mr. Singla is concerned, it is  

submitted by him that the Cantonment Boards were covered under the Public  

Premises Act only with effect from 1.6.1994 by an amendment introducing  

sub-section  (viii)  in  Section  2(e)(2)  of  the  Public  Premises  Act.   He  has,  

therefore,  contended  that  the  Estate  Officer  had  no  jurisdiction  to  pass  

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eviction order on 26.6.1991 and hence, on this ground alone, the present  

appeal  must  be  dismissed.  As  far  as  this  submission  of  Mr.  Singla  is  

concerned, Mr. Venkaramani submitted that this objection ought to have been  

raised at the earliest opportunity so that appellant could have met the same  

earlier.   It  is  undoubtedly  true  that  objection  to  the  maintainability  of  a  

proceeding must be raised at the earliest but an objection that the authority  

did not have the jurisdiction to entertain the proceedings over the subject-

matter goes to the root of the proceeding.  In a number of judgments, this  

Court has held that a defect, with respect to the lack of inherent jurisdiction is  

basic and fundamental and validity of such an order can be challenged at any  

stage,  even in  execution or  in  collateral  proceedings  (for  reference  see a  

judgment  of  a  bench  of  three  judges  of  this  Court  in  Balwant  N.  

Viswamitra  and others  v. Yadav Sadashiv  Mule (dead)  through  Lrs.  

[reported in (2004) 8 SCC 706] .  

14.   However, such an eventuality does not arise in this case for the  

reason that the case of the appellant has been that the hospital premises of  

the  respondent  belong  to  the  Union  of  India  and  are  only  under  the  

management of the appellant, and therefore, are the “public premises”, under  

Section 2(e) of the Public Premises Act 1971.  Thus, in the first paragraph  

containing the reasons of his order dated 26.6.1991, the Estate Officer states  

as follows:

“1.  That  the  CNI  Mission  Hospital,  Nasirabad  which  is   situated on and land thereon, belongs to the Union of India and  lies under the management of Cantt. Board, Nasirabad is a public   premises as defined under 2(e) of the P.P.Act, 1971.”

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It  is  this  order  of  eviction  which  was  challenged  in  appeal  to  the  

District Court and thereafter in writ petition.

15. Section  2(e)  of  the  Public  Premises  Act  defines  “public  

premises.”   This section is split into two sub-sections.  Sub-section (1) covers  

thereunder any premises belonging to or taken on lease or requisitioned by or  

on behalf of the Central Government.  Sub-section (2) deals with premises  

belonging  to  or  taken  on  lease  or  on  behalf  of  various  entities  such  as  

Government Companies, Universities, Major Ports etc. which are mentioned in  

that sub-section,  and Cantonment Boards have come to be covered under  

sub-section (viii) by amendment with effect from 1.6.1994.   The case of the  

respondent  has  been  that  the  premises  belong  to  Union  of  India,  and,  

therefore, are public premises.  The Estate Officer did have the jurisdiction  

over such premises.  It is another matter that the premises of Cantonment  

Boards have also come under the definition of public premises since 1.6.1994.  

It cannot mean that the premises of Union of India which were always under  

the Public Premises Act, but under the Management of a Cantonment Board,  

since  prior  to  this  amendment,  would  not  be  covered  under  the  Public  

Premises  Act.   This  has  been  the  plea  of  the  appellants  right  from  the  

beginning.  Section 116A of the Cantonment Act 1924, gives the power to the  

Cantonment Board to manage any property entrusted to it  by the Central  

Government.  It is under this Section that the present premises are under the  

management of the appellant Board.  Section 116A reads as follows:

“Section 116A. Power to manage property.- A [Board] may,   subject  to  any  conditions  imposed  by  the  Central  Government,   manage any property entrusted to its management by the Central   Government on such terms as to the sharing of rents and profits   

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accruing from such property as may be determined by rule made  under section 280.”

16. The Government has the power to make rules concerning the  

management of these properties.  This power is contained in Section 116 of  

the Act.  Mr. Venkaramani has drawn our attention to the Cantonment Land  

Administration  Rules  1937  under  which  the  properties  under  their  

management are classified into three categories ‘A”, ‘B’ & ‘C’.  The present  

premises fall in category ‘C’.  He has also shown us the receipt issued by the  

Defence Estate Officer to the appellant for the payment of rent of the land on  

which  the  hospital  building  is  situated.   We  have  also  been  shown  the  

relevant  notification  issued  by  the  Central  Government  authorizing  the  

concerned Officer as the Estate Officer for the premises under the control of  

the Ministry of Defence.

17. This being the position, there is no substance in the objection raised by  

and on behalf of the respondent.  The Estate Officer did have jurisdiction to  

take action against the respondent under the Public Premises Act.  The period  

of  authorization  of  the  respondent  to  occupy  the  premises  was  over  on  

31.3.1984.   Therefore,  the respondent  was in  an unauthorized occupation  

thereafter under Section 2(g) of the Act.   Notice as required, under Section 4  

of the Public Premises Act was given.  The respondent had no acceptable  

defence.  The premises were no longer being used properly.  That being so,  

the order of eviction was fully justified as also the order passed by the District  

Judge dismissing the appeal.

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18. The Single Judge of the Rajasthan High Court, therefore, clearly  

erred in holding that a notice of 15 days ought to have been given in the  

present case to terminate the authority of the respondent on the concerned  

premises.  The provisions of Sections 106 and 107 of Transfer of Property Act  

could not be applied to the present case on that count since the premises  

were  covered  under  a  special  act  which  will  prevail  as  against  a  general  

enactment.   The Division Bench also having accepted that the respondent  

was in an unauthorized occupation, erred in insisting that a 15 days’ notice  

was necessary.

19. In the circumstances, this Civil Appeal is allowed.  The orders  

passed by the Division Bench of the Rajasthan High Court dated  17.5.2002 in  

Civil Special Appeal (Writ) No.753/1993 as well as the order dated 13.8.1991  

passed  by  the  Single  Judge  in  Writ  Petition  No.5281/1991  are  set  aside.  

Appeal No.753/1993 filed before the Division Bench will  stand allowed and  

Writ Petition No.5281/1991 filed by the respondent before the Single Judge  

will stand dismissed.  The order passed by the Estate Officer dated 26.6.1991  

as upheld by the District Judge, Ajmer is hereby confirmed.   

20. The appeal is allowed accordingly, though, without any order as  

to costs.

……..……………………..J.  (P.  Sathasivam )  

………………………………..J.  ( H.L. Gokhale  )

New Delhi

Dated:  May 13, 2011.

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