IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:25.01.2011
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.1573 of 2010 and M.P.Nos.1 and 2 of 2011
and M.P.No.1 of 2010
Southern Railway Employees Congress Union
Rep. by its General Secretary, M.Sarathy
having its registered office at Ashok Vihar Complex
(behind MMC Buildings)
Park Town
Chennai 600 003. .. Appellant
vs.
1. The Divisional Railway Manager
Southern Railway,
Chennai Division,
Southern Railway,
Park Town, Chennai 3.
2. The Additional Divisional Railway Manager,
Estate Officer, Southern Railway,
Chennai Divisiion, Southern Railway
Park Town, Chennai 1. .. Respondents
This second appeal is filed against the judgment and decree dated 27.07.2010 passed in A.S.No.91 of 2008 by the learned Additional District and Sessions Judge, Fast Track Court No.III, Chennai 1 confirming the judgment and decree dated 13.08.2007 passed in O.S.No.5611 of 2004 on the file of the IV Asst. City Civil Court, Chennai.
For Appellant : Mr. A.E.Chelliah, Sr.Counsel
for Mr.S.Dhayaleswaran
For Respondents : Mr. V.G.Suresh Kumar
J U D G M E N T
This second appeal is focussed animadverting upon the judgement and decree dated 27.07.2010 passed in A.S.No.91 of 2008 by the learned Additional District and Sessions Judge, Fast Track Court No.III, Chennai confirming the judgment and decree of the learned IV Asst. City Civil Court, Chennai in O.S.No.5611 of 2004. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The plaintiff filed the suit seeking the following relief:
“For permanent injunction restraining the defendants, their men, agents, servants, representatives or anybody through on behalf of the defendant from evicting the plaintiff from the suit schedule property pending disposal of the appeal dated 18.10.2004 filed by the plaintiff before the Chief Personal Officer southern Railway Chennai 3.”
(extracted as such)
(b) The defendants filed the written statement resisting the suit.
(c) Whereupon issues were framed.
(d) On the side of the plaintiff, one Mr.Sarathy was examined as P.W.1 and Exs.A1 to A9 were marked. On the side of the defendant, D.W.1 was examined and Ex.B1 was marked.
(e) Ultimately the trial Court dismissed the suit, as against which appeal was filed for nothing but to to be dismissed confirming the judgment and decree of the trial Court.
3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds inter alia to the effect that both the Courts below were not justified in treating the plaintiff as an unrecognised association which is unauthorisedly in occupation of the railway premises concerned. Both the Courts below fell into error in not considering that the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 [hereinafter referred to as ‘the Act’] could not be invoked as against the plaintiff. Both the courts below decided the lis otherwise than on merits.
4. The following proposed substantial questions of law are found suggested in the memorandum of Second Appeal:
“(1) Whether the respondent has acquiesced with the possession of the appellant and whether the respondent can invoke the provisions of the Public Premises Act?
(2) Whether the Courts below have erred in giving findings and deciding the matter in the absence of pleadings in contravention of settled provision of law?
(3) Whether the Courts below are right in dismissing the suit without considering the purview of the Public Premises (Eviction of Unauthorised Occupants) Act?
(4) Whether the Courts below have erred in giving findings on merits of the case when they have held that they lack jurisdiction under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971?
(extracted as such)
5. Heard both sides as to whether any substantial question of law is involved in this matter.
6. The learned counsel for the plaintiff/appellant would put forth and set forth his arguments, which could tersely and briefly be set out thus:
(a) The premises under the occupation of the plaintiff by no stretch of imagination could be taken as one covered by the said Act, namely the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
(b) The question of recognised or unrecognised association does not arise, because all along the plaintiff has been fighting for the cause of the Railway employees and recognising that alone the Railway Department allowed the plaintiff to occupy the property described in the schedule of the plaint and in such a case, they cannot be treated as trespassers or unauthorised occupants within the meaning of the provisions of the Act.
(c) The correspondences found enclosed in the typed set of papers would show that representations were made by the plaintiff to the Railway Minister concerned who directed the authorities to consider the same, but without considering the same and giving suitable reply, holus bolus quite antithetical to the principles of natural justice, they issued direction to vacate the premises warranting interference in the Second Appeal.
Accordingly the learned counsel for the plaintiff would pray for setting aside the judgments and decrees of both the Courts below and for decreeing the suit in toto.
7. By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the respondents/defendants would advance his arguments, the gist and kernel of them would run thus:
(a) The provisions of the said Act are wide enough to include the suit property, as indubitably and indisputably, unarguably and unassailably the said premises belongs to the Railways which forms part of the Central Government. Such premises’ are covered under the definition of ‘Public Premises’ contemplated under the said Act.
(b) Both the Courts below appropriately and appositely, convincingly and correctly, after discussing the pros and cons of the matter arrived at the conclusion that the plaintiff association is not a recognised one and there is no iota or shred of evidence to demonstrate and display that the plaintiff association has been recognised as a Union for the purpose of espousing the cause of the Railway employees and in such a case, no interference in the Second Appeal in warranted.
(c) Further, no question of law much less substantial question of law is involved in this matter.
Accordingly, the learned counsel for the respondents/defendants would pray for the dismissal of the Second Appeal.
8. At this juncture, my mind is redolent and reminiscent of the following decisions of the Hon’ble Apex Court:
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL,
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
A mere poring over and perusal of those judgments would exemplify and demonstrate, display and highlight that unless there is any substantial question of law is involved in the Second Appeal, the question of entertaining the same would not arise.
9. On perusal of the judgments of both the Courts below and also the pleadings and other evidence placed before the trial Court, I am of the considered view that regarding finding of fact is concerned both the Courts below in unison held that the plaintiff association is not a recognised one. In fact, the submissions made on the side of the plaintiff would amply make the point clear that the plaintiff association is not a recognised association. However, they would state that at one point of time they have been allowed to occupy the suit property in their capacity as an association expousing the cause of the workers. Be that as it may, there is no estoppel against such factual situation. Even for a moment I do not incline to say that the plaintiff initially trespassed or barged into the Railway premises and occupied the suit property. Simply because at one point of time the plaintiff has been allowed to occupy the premises, it does not mean that the defendants are having no right to cancel such licence and seek for recovery of the premises on the ground that the plaintiff is not a recognised union. Both the Courts below on this factual issue after considering the documentary as well as oral evidence held, that the plaintiff is not a recognised union and liable to be evicted.
10. Over and above that, I would like to point out that after issuance of statutory notice under the Public Premises Act, the plaintiff was given opportunity to put forth the case as quasi judicial enquiry was contemplated under the Act. The final order, it appears, was passed under Section 5 of the said Act. There are inbuilt safeguards for preferring appeal also. I am at a loss to understand as to how all in sudden without exhausting the remedy under the provisions of the Public Premises Act, the plaintiff was justified in filing the suit. At this juncture, I recollect the following maxims:
“1. Expressum facit cessare tacitum: Express mention precludes implication.
2. Expressio unius est exclusio alterius: Express mention of one implies exclusion of others.
3. Generalia specialibus non derogant: General things do not derogate from specific things.”
These aforesaid three sister maxims would convey and highlight that when there are special provisions for seeking remedy, the general remedy before civil Court should not be resorted to. As such both the Courts below considered the pro et contra and decided that the suit was not maintainable and the plaintiff is not entitled to seek for any relief and accordingly dismissed their suit and the appellate Court also in its reasoned judgment dismissed the appeal. Accordingly, I could see that there is no substantial question of law is involved in this matter and the appeal is liable to be dismissed. Accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
11. Taking into consideration the over all circumstances, I am of the view that three months’ time could be granted from the date of a copy of this order being made ready, for vacating the premises and handing over possession to the defendants by the plaintiff.
12. Over and above that, the learned counsel for the plaintiff/appellant would make an extempore submission before this Court that the plaintiff/appellant is intending to prefer statutory appeal under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and I make it clear that this Court is not making any direction or observation in that regard.
Gms 25.01.2011
Index : Yes
Internet: Yes
NOTE TO OFFICE
1. Issue order copy next week
2. Registry is directed to return all the original documents.
To
1. The Additional District and Sessions Judge,
Fast Track Court No.III, Chennai 1
2. The IV Asst. City Civil Court, Chennai.
G.RAJASURIA,J.
gms
S.A.No.1573 of 2010
25.01.2011
S.A.No.1573 of 2010
G.RAJASURIA, J.
This matter came up today under the caption 'For Being Mentioned'.
2. At the request of the learned counsel for the appellant paragraph No.11 of the order dated 25.01.2011 in S.A.No.1573 of 2010 is deleted as it was voluntarily incorporated by this Court, which the appellant does not want.
28.01.2011
gms
G.RAJASURIA, J.
Gms
S.A.No.1573 of 2010
28.01.2011