{"id":197175,"date":"2002-09-17T00:00:00","date_gmt":"2002-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sri-s-k-sarma-vs-mahesh-kumar-verma-on-17-september-2002"},"modified":"2018-03-11T13:16:24","modified_gmt":"2018-03-11T07:46:24","slug":"sri-s-k-sarma-vs-mahesh-kumar-verma-on-17-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sri-s-k-sarma-vs-mahesh-kumar-verma-on-17-september-2002","title":{"rendered":"Sri S.K. Sarma vs Mahesh Kumar Verma on 17 September, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sri S.K. Sarma vs Mahesh Kumar Verma on 17 September, 2002<\/div>\n
Author: Shah<\/div>\n
Bench: M. B. Shah, D. M. Dharmadhikari<\/div>\n
           CASE NO.:\nAppeal (crl.) 960 of 2002.\nPETITIONER:\nSri S.K. Sarma\n\tVs.\n\nRESPONDENT:\nMahesh Kumar Verma\nDATE OF JUDGMENT:\t17, 201902BENCH:\nM. B. SHAH & D. M. DHARMADHIKARI\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Shah, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tShort question involved in this appeal is  whether the
\nprovisions of Section 138 of the Indian Railways Act, 1890
\n(hereinafter referred to as “the Railways Act”) can be invoked for
\ntaking back possession of the premises which was given to its
\nemployee, upon his retirement on failure of railway administration to
\nprove lease document in its favour?\n<\/p>\n
\tThe High Court of Calcutta by judgment and order dated
\n10.10.2001 arrived at the conclusion that railway administration ought
\nto have proved that the premises belonged to it, before invoking
\nSection 138 of the Railways Act and as the lease agreement of the
\npremises between railway administration and its owner is not proved,
\nSection 138 of the Railways Act could not be invoked for evicting the
\nrespondent.  That judgment is challenged by filing this appeal.\n<\/p>\n
\tShort facts of the case are  undisputedly, respondent Mahesh
\nKumar Verma was a railway employee, posted as Chief Public
\nRelations Officer (CPRO), and as he was entitled to official
\naccommodation, on 17.1.1967, he was allotted premises at 85-B, Sarat
\nBose Road, Calcutta, which is about 2800 sq. ft. with a lawn of 2500
\nsq. ft. in front apart from a garage.  The lessor of the property to the
\nRailway Department is one Mr. N.B. Ganguly.  Despite his retirement
\non 30th June, 1984, he has not vacated the premises in question.\n<\/p>\n
\tRailway administration filed a complaint under Section 138 of
\nthe Railways Act bearing Crl. Misc. Case No.36 of 1985 before Chief
\nJudicial Magistrate, South 24-Parganas, Alipore (West Bengal)
\nseeking police help for recovery of possession.\t On 22nd November,
\n1986, the learned CJM allowed the application and directed the police
\nto enter the premises and evict the respondent in case respondent fails
\nto deliver its possession to the railway administration within two
\nweeks from the date of order.  He arrived at the conclusion that in
\nview of the evidence of PW1 and PW2, the premises in question was
\nallotted to the respondent on 17.1.1967 as official residence while he
\nwas holding the post of CPRO and this fact was not disputed by the
\nrespondent.  Learned CJM further held that under Section 116 of the
\nIndian Evidence Act, 1872 the respondent was estopped from
\nquestioning the right, title or interest of the railway administration as
\nlandlord\/licensor.\n<\/p>\n
\tAforesaid judgment and order was challenged by the
\nrespondent by filing Criminal Revision No.1722 of 1986 before the
\nHigh Court of Calcutta.\t The High Court allowed the petition by
\nholding that railway administration has failed to establish that the
\nproperty ‘belonged to it’.  The Court emphasized the phrase
\n“belonging to the railway administration” used in Section 138 of the
\nRailways Act and arrived at the conclusion that railway administration
\nhas failed to prove lease document in its favour.\n<\/p>\n
At the time of hearing of this matter, learned ASG appearing for
\nthe appellant submitted that the High Court materially erred in over-
\nlooking Section 116 of the Evidence Act.  For this purpose various
\ndecisions are relied upon.  It was further submitted that use of phrase
\n“belonging to the railway administration” in Section 138 of the Act
\ndoes not mean absolute ownership.  It may include lessor’s interest
\nincluding that of a lessee.  But that is not required to be proved in a
\ncase where property is handed over to its employee as a licensee under
\nthe service conditions.\n<\/p>\n
\tAs against this, Mr. Dholakia, learned senior counsel for the
\nrespondent submitted that the appellant has failed to prove that the
\nproperty belonged to it and, therefore, the High Court has rightly
\ndismissed the application filed under Section 138 of the Act.  It is
\ncontended that the railway administration has no proof that the
\nproperty belonged to them and, therefore, they seek to rely upon
\nSection 116 of the Evidence Act.  It is also contended that the railway
\nadministration must establish subsisting tenancy and as no attempt has
\nbeen made by the railway administration to prove the same, the
\napplication was rightly dismissed.  It is additionally sought to be
\ncontended in written submission, even though not argued at the time
\nof hearing, that Section 138 of the Act does not include the expression
\n‘retirement’ and, therefore, also the power under Section 138 to
\nsummarily evict cannot be exercised.\n<\/p>\n
For appreciating the contentions raised by the learned counsel
\nfor the parties, we would refer to Section 138 of the Railways Act
\nwhich reads thus: –\n<\/p>\n
“138.\t Procedure for summary delivery to railway
\nadministration of property detained by a railway
\nservantIf a railway servant is discharged or suspended
\nfrom his office, or  dies, absconds or absents himself, and
\nhe or his wife or widow or, any of his family or
\nrepresentatives, refuses or neglects, after notice in writing
\nfor that purpose, to deliver up to the railway
\nadministration, or to a person appointed by the railway
\nadministration in this behalf, any station, dwelling-house,
\noffice or other building with its appurtenances, or any
\nbooks, papers or other matters, belonging to the railway
\nadministration and in the possession or custody of such
\nrailway servant at the occurrence of any such event as
\naforesaid, any Presidency Magistrate or Magistrate of the
\nfirst class may, on application made by or on behalf of
\nthe railway administration, order any police officer, with
\nproper assistance, to enter upon the building and remove
\nany person found therein and take possession thereof, or
\nto take possession of the books, papers or other matters,
\nand to deliver the same to the railway administration or a
\nperson appointed by the railway administration in that
\nbehalf.”\n<\/p>\n
\tFrom the aforesaid section, following ingredients can be culled
\nout: –\n<\/p>\n
(1)\tIt prescribes summary procedure for delivery to railway
\nadministration of property detained by railway servant.\n<\/p>\n
(2)\ta railway servant is discharged or suspended from his
\noffice, dies, absconds or absents himself; and<\/p>\n
(3)\the or his wife or widow or, any of his family representing
\nhim refuses or neglects;\n<\/p>\n
(4)\tafter notice in writing for that purpose;\n<\/p>\n
(5)\tto deliver up to the railway administration;\n<\/p>\n
(6)\tany station dwelling-house, office or other building with
\nits appurtenances;\n<\/p>\n
(7)\tor any books, papers or any other matters;\n<\/p>\n
(8)\tbelonging to the railway administration and in the
\npossession or custody of such railway servant at the
\noccurrence of such event as aforesaid;\n<\/p>\n
(9)\tthe Magistrate on application may by and on behalf of
\nrailway department order any police officer with proper
\nassistance to enter upon the building and remove any
\nperson from therein and take possession thereof and to
\ndeliver the same to the railway administration.\n<\/p>\n
The object of the aforesaid Section is to provide speedy
\nsummary procedure for taking back the railway property detained by
\nthe railway servant or his legal representative.  Properties include not
\nonly dwelling house, office or other building but also books, papers
\nand any other matters.\tThis would mean that the Section embraces in
\nits sphere all unlawful detention of any railway property by the
\nrailway servant.  Further, from the aforequoted second ingredient, it is
\nclear that a railway servant who is discharged or suspended from his
\noffice, dies, absconds or absents himself would include a railway
\nemployee who is removed, retires or dismissed from service.  In
\ncontext, the words ‘discharge, dies, absconds or abstains himself’
\nwould certainly include employees who retire at the age of
\nsuperannuation.\t The word ‘discharge’ used in context is of widest
\namplitude and would include cessation of relationship of employer
\nand employee, may be by retirement, resignation, dismissal or
\nremoval.  This Court in Union of India and another v. B.N. Prasad
\n[(1978) 2 SCC 462] considered Section 138 and held that a close
\nperusal of the section clearly reveals that the provision has widest
\namplitude and takes within its fold not only a railway servant but even
\na contractor who is engaged for performing services to the railway,
\nand the termination of his contract by the Railway amounts to his
\ndischarge, as mentioned in Section 138.\t The Court also observed that
\nthe said provision is in public interest and must be construed liberally,
\nbroadly and meaningfully so as to advance the object sought to be
\nachieved by the Railway Act.  The Court also referred to the decision
\nof the Lahore High Court in S.L. Kapoor v. Emperor [AIR 1937
\nLahore 547] which was earlier approved by this Court wherein the
\nCourt has made the following observations: –\n<\/p>\n
 “.The termination of his service by the railway
\nunder Clause 21 of the agreement amounts to his
\ndischarge within the meaning of Section 138 of the Act,
\nand he is therefore liable to dispossession of the premises
\nwhich he was occupying as a servant of the railway.”\n<\/p>\n
The High Court of Calcutta in Divisional Superintendent,
\nEastern Railway, Asansole, v. Suresh Chandra Chakravarty [AIR
\n1957 Cal. 97] in context of Section 138 has rightly held that the word
\n‘discharge’ is general enough to include employee who is retired at
\nthe age of superannuation.  Similarly, the Bombay High Court in
\nArjun Babloo Tukaral v. G.V. Javalkar (AIR 1981 Bom. 72) after
\nelaborate discussion arrived at the conclusion that considering the
\nintention of the Legislature and in the light of the general purpose of
\nthe Act, the word ‘discharge’ embraces all types of termination of
\ncontract of employment and the word ‘discharge’ used in section 138
\nwould include retirement at the age of superannuation.\n<\/p>\n
Further, the contention of the learned senior counsel for the
\nrespondent that the railway administration has to prove that the
\nproperty in question was belonging to it before invoking Section 138
\nis totally misconceived because once it is admitted that respondent
\nwas given possession of the premises in question by order dated
\n17.1.1967 as he was entitled for the same while working as CPRO of
\nthe Department, he could not be permitted to deny the title of the
\nrailway administration.\t Admittedly, respondent was inducted because
\nhe was in railway service.  Now, he is estopped from challenging the
\ntitle of the appellant over the premises in question.  For this purpose,
\nwe would refer to Section 116 of the Evidence Act which reads thus
\n“116.  Estoppel of tenant; and of licensee of person in
\npossession.No tenant of immovable property or person
\nclaiming through such tenant, shall, during the
\ncontinuance of the tenancy, be permitted to deny that the
\nlandlord of such tenant had, at the beginning of the
\ntenancy, a title to such immovable property; and no
\nperson who came upon any immovable property by the
\nlicense of the person in possession thereof, shall be
\npermitted to deny that such person had a title to such
\npossession at the time when such license was given.”\n<\/p>\n
\tSecond part of the aforesaid section clearly provides that no
\nperson who came upon any immovable property by the license of the
\nperson in possession thereof shall be permitted to deny the title to
\nsuch person to such possession of the property.\t He cannot deny the
\nsame during the pendency of such license or sub-lease.\tSuch estoppel
\ncontinues to operate so long as licensee or sub-tenant has not openly
\nrestored possession by surrender to such person.  This rule of estoppel
\nwould cease to operate only after such licensee or sub-tenant has been
\nevicted.  This position does not require reference to many judgments.
\nHowever, we would refer to the decision in S. Thangappan v. P.
\nPadmavathy<\/a> [(1999) 7 SCC 474] in which the appellant tenant who
\nwas running an automobile workshop since 1962 disputed the title of
\nrespondent-landlady on the ground that certain Devasthanam was the
\nactual landlord.  This Court held that Section 116 of the Evidence Act,
\n1872 puts an embargo on a tenant of an immovable property, during
\nthe continuance of his tenancy to deny the title of his landlord at the
\nbeginning of his tenancy.  The significant words under it are ‘at the
\nbeginning the tenancy”.\t So a tenant once inducted as a tenant by a
\nlandlord, later cannot deny his landlord’s title.  However defective the
\ntitle of such landlord may be, such tenant cannot deny his title.\n<\/p>\n
Further in Vashu Deo v. Balkishan [(2002) 2 SCC 50] the
\nquestion that came up for consideration before the Court was
\nwhether a sub-tenant could have directly attorned to the owner Trust
\nbypassing the tenant?  The Court while rejecting such plea of sub-
\ntenant considered the provision of Section 116 of the Evidence Act
\nand held thus:\n<\/p>\n
“..Section 116 of the Evidence Act, which
\ncodifies the common law rule of estoppel between
\nlandlord and tenant, provides that no tenant of
\nimmovable property or person claiming through such
\ntenant, shall, during the continuance of the tenancy, be
\npermitted to deny that the landlord of such tenant had at
\nthe beginning of the tenancy, a title to such immovable
\nproperty.  The rule of estoppel so enacted has three main
\nfeatures: (i) the tenant is estopped from  disputing the
\ntitle of his landlord over the tenancy premises at the
\nbeginning of the tenancy; (ii) such estoppel continues to
\noperate so long as the tenancy continues and unless the
\ntenant has surrendered possession to the landlord; and\n<\/p>\n
(iii) Section 116 of the Evidence Act is not the whole law
\nof estoppel between the landlord and tenant.  The
\nprinciples emerging from Section 116 can be extended
\nin their application and also suitably adapted to suit the
\nrequirement of an individual case.  Rule of estoppel
\nwhich governs an owner of an immovable property and
\nhis tenant would also mutatis mutandis govern a tenant
\nand his sub-tenant in their relationship inter se.  As
\nheld by the Privy Council in Currimbhoy & Co. Ltd. v.
\nL.A. Creet [AIR 1933 PC 29] and Bilas Kunwar v.\n<\/p>\n
Desraj Ranjit Singh [AIR 1915 PC 96] the estoppel
\ncontinues to operate so long as the tenant has not
\nopenly restored possession by surrender to his landlord.
\nIt follows that the rule of estoppel ceases to have
\napplicability once the tenant has been evicted.\t His
\nobligation to restore possession to his landlord is fulfilled
\neither by actually fulfilling the obligation or by proving
\nhis landlord’s title having been extinguished by his
\nlandlord’s eviction by a paramount title-holder…”\n<\/p>\n
\tIn this view of the matter, respondent cannot be permitted to
\ncontend that property was not belonging to the railway administration.
\nWhether the railway administration is owner, mortgagee, lessee or
\nlicensee is not required to be decided in such proceedings at the
\ninstances of sub-lessee or licensee of railway administration.\n<\/p>\n
Lastly, the learned ASG appearing for the appellant submitted
\nthat on one or other ground, respondent – ex-employee after his
\nretirement had unauthorisedly retained the possession of the property
\nbelonging to the railway administration and, therefore, he should be
\ndirected to pay mesne profit from the date of his retirement till
\npossession of the suit property is handed over to the railway
\nadministration.\t In our view, this question cannot be decided in these
\nproceedings because Section 138 does not empower the Court to pass
\nsuch order nor such question was raised before the trial court.\t It is
\nopen to the appellant to resort to other alternative remedy available to
\nit under the law.\n<\/p>\n
\tIn the result, the appeal is allowed and the judgment and order
\npassed by the High Court is quashed and set aside.  The order passed
\nby the learned CJM dated 22.11.1986 directing the respondent to hand
\nover vacant possession of the premises in question is restored.\t The
\nrespondent is given 15 days time from today to hand over possession
\nto the railway administration.\tOn his failure, the O\/C Bhowanipore,
\nP.S. shall, with proper assistance of the police force, enter upon the
\npremises in question and remove the respondent and other persons
\nfrom there and take possession thereof and shall deliver the same to
\nthe railway administration or a person duly appointed by the railway
\nadministration in this behalf.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sri S.K. Sarma vs Mahesh Kumar Verma on 17 September, 2002 Author: Shah Bench: M. B. Shah, D. M. Dharmadhikari CASE NO.: Appeal (crl.) 960 of 2002. PETITIONER: Sri S.K. Sarma Vs. RESPONDENT: Mahesh Kumar Verma DATE OF JUDGMENT: 17, 201902BENCH: M. B. SHAH & D. M. DHARMADHIKARI JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-197175","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSri S.K. 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