VERY IMPORTANT POINT
To invoke Section 138 of Indian Railways Act, 1890 ex-employer cannot be permitted to contend that property was not belonging to railway administration by virtue of estoppel contained in second part of Section 116 of Indian Evidence Act, 1872.

Headnote:(i) Indian Railways Act, 1890-Section 138-Procedure for summary delivery to railway administration of property detained by a railway servant-The words "discharge, dies, absconds or absents himself" whether would include a railway employee who is removed, retired or dismissed from service? (Yes)-Case law referred.
       Held : From the aforesaid section, following ingredients can be culled out:-
        (1) It prescribes summary procedure for delivery to railway administration of property detained by railway servant.
        (2) a railway servant is discharged or suspended from his office, dies, absconds or absents himself; and
        (3) he or his wife or widow or, any of his family representing him refuses or neglects;
        (4) after notice in writing for that purpose;
        (5) to deliver up to the railway administration;
        (6) any station dwelling-house, office or other building with its appurtenances;
        (7) or any books, papers or any other matters;
        (8) belonging to the railway administration and in the possession or custody of such railway servant at the occurrence of such event as aforesaid;
        (9) the Magistrate on application may by and on behalf of railway department order any police officer with proper assistance to enter upon the building and remove any person from therein and take possession thereof and to deliver the same to the railway administration.
       The object of the aforesaid Section is to provide speedy summary procedure for taking back the railway property detained by the railway servant or his legal representative. Properties include not only dwelling house, office or other building but also books, papers and any other matters. This would mean that the Section embraces in its sphere all unlawful detention of any railway property by the railway servant. Further, from the aforequoted second ingredient, it is clear that a railway servant who is discharged or suspended from his office, dies, absconds or absents himself would include a railway employee who is removed, retires or dismissed from service. In context, the words discharge, dies, absconds or abstains himself would certainly include employees who retire at the age of superannuation. (Paras 10 and 11)
       (ii) Indian Railways Act, 1890-Section 138-Evidence Act, 1872-Section 116-Estoppel-Expression property belonging to -Whether onus is on railway administration to prove it first to invoke Section 138? (No)-Case law referred.
       Held : Further, the contention of the learned senior counsel for the respondent that the railway administration has to prove that the property in question was belonging to it before invoking Section 138 is totally misconceived because once it is admitted that respondent was given possession of the premises in question by order dated 17.1.1967 as he was entitled for the same while working as CPRO of the Department, he could not be permitted to deny the title of the railway administration. Admittedly, respondent was inducted because he was in railway service. Now, he is estopped from challenging the title of the appellant over the premises in question. (Para 13)
       (iii) Indian Railways Act, 1890-Section 138-Summary eviction of ex-employee-Respondent given railway accommodation which railways had taken from private owner on lease-Respondent retiring-Criminal action u/s 138-Allowed by Magistrate-High Court reversing-Appeal to Supreme Court-Whether High Court was right? (No)-Appeal allowed-Order of Trial Magistrate restored-Whether Railways are entitled to mesne profits for unauthorized occupation by respondent-Not covered by Section 138 and for it other alternative remedy available be pursued.
       Held : Respondent cannot be permitted to contend that property was not belonging to the railway administration. Whether the railway administration is owner, mortgagee, lessee or licensee is not required to be decided in such proceedings at the instances of sub-lessee or licensee of railway administration. (Para 16)
       Held further : Lastly, the learned ASG appearing for the appellant submitted that on one or other ground, respondent - ex-employee after his retirement had unauthorisedly retained the possession of the property belonging to the railway administration and, therefore, he should be directed to pay mesne profit from the date of his retirement till possession of the suit property is handed over to the railway administration. In our view, this question cannot be decided in these proceedings because Section 138 does not empower the Court to pass such order nor such question was raised before the trial court. It is open to the appellant to resort to other alternative remedy available to it under the law. (Para 17)
       Held consequently : In the result, the appeal is allowed and the judgment and order passed by the High Court is quashed and set aside. The order passed by the learned CJM dated 22.11.1986 directing the respondent to hand over vacant possession of the premises in question is restored. The respondent is given 15 days time from today to hand over possession to the railway administration. On his failure, the O/C Bhowanipore, P.S. shall, with proper assistance of the police force, enter upon the premises in question and remove the respondent and other persons from there and take possession thereof and shall deliver the same to the railway administration or a person duly appointed by the railway administration in this behalf. Ordered accordingly. (Paras 18 and 19)

JUDGMENT

Shah, J.-Leave granted.

2. Short question involved in this appeal is --- whether the provisions of Section 138 of the Indian Railways Act, 1890 (hereinafter referred to as "the Railways Act") can be invoked for taking back possession of the premises which was given to its employee, upon his retirement on failure of railway administration to prove lease document in its favour?

3. The High Court of Calcutta by judgment and order dated 10.10.2001 arrived at the conclusion that railway administration ought to have proved that the premises belonged to it, before invoking Section 138 of the Railways Act and as the lease agreement of the premises between railway administration and its owner is not proved, Section 138 of the Railways Act could not be invoked for evicting the respondent. That judgment is challenged by filing this appeal.

4. Short facts of the case are - undisputedly, respondent Mahesh Kumar Verma was a railway employee, posted as Chief Public Relations Officer (CPRO), and as he was entitled to official accommodation, on 17.1.1967, he was allotted premises at 85-B, Sarat Bose Road, Calcutta, which is about 2800 sq. ft. with a lawn of 2500 sq. ft. in front apart from a garage. The lessor of the property to the Railway Department is one Mr. N.B. Ganguly. Despite his retirement on 30 June, 1984, he has not vacated the premises in question.

5. Railway administration filed a complaint under Section 138 of the Railways Act bearing Cri. Misc. Case No.36 of 1985 before Chief Judicial Magistrate, South 24-Parganas, Alipore (West Bengal) seeking police help for recovery of possession. On 22nd November, 1986, the learned CJM allowed the application and directed the police to enter the premises and evict the respondent in case respondent fails to deliver its possession to the railway administration within two weeks from the date of order. He arrived at the conclusion that in view of the evidence of PW1 and PW2, the premises in question was allotted to the respondent on 17.1.1967 as official residence while he was holding the post of CPRO and this fact was not disputed by the respondent. Learned CJM further held that under Section 116 of the Indian Evidence Act, 1872 the respondent was estopped from questioning the right, title or interest of the railway administration as landlord/licensor.

6. Aforesaid judgment and order was challenged by the respondent by filing Criminal Revision No. 1722 of 1986 before the High Court of Calcutta. The High Court allowed the petition by holding that railway administration has failed to establish that the property belonged to it . The Court emphasized the phrase "belonging to the railway administration" used in Section 138 of the Railways Act and arrived at the conclusion that railway administration has failed to prove lease document in its favour.

7. At the time of hearing of this matter, learned ASG appearing for the appellant submitted that the High Court materially erred in over-looking Section 116 of the Evidence Act. For this purpose various decisions are relied upon. It was further submitted that use of phrase "belonging to the railway administration" in Section 138 of the Act does not mean absolute ownership. It may include lessor s interest including that of a lessee. But that is not required to be proved in a case where property is handed over to its employee as a licensee under the service conditions.

8. As against this, Mr. Dholakia, learned senior counsel for the respondent submitted that the appellant has failed to prove that the property belonged to it and, therefore, the High Court has rightly dismissed the application filed under Section 138 of the Act. It is contended that the railway administration has no proof that the property belonged to them and, therefore, they seek to rely upon Section 116 of the Evidence Act. It is also contended that the railway administration must establish subsisting tenancy and as no attempt has been made by the railway administration to prove the

Click Here to Read the rest of this document

2002 Supreme(SC) 936

VERY IMPORTANT POINTTo invoke Section 138 of Indian Railways Act, 1890 ex-employer cannot be permitted to contend that property was not belonging to railway administration by virtue of estoppel contained in second part of Section 116 of Indian Evidence Act, 1872.

Cases Referred (5)

VERY IMPORTANT POINT
To invoke Section 138 of Indian Railways Act, 1890 ex-employer cannot be permitted to contend that property was not belonging to railway administration by virtue of estoppel contained in second part of Section 116 of Indian Evidence Act, 1872.