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IN THE HIGH COURT OF CALCUTTA
Sabyasachi Bhattacharyya, J.
South Bengal Automobiles And Another - Appellant
Versus
Union Of India And Others - Respondent
W.P.A. No. 22570 of 2016 With CAN 2 of 2021
Decided On : 11-08-2022
Railways Act - Eviction - Section 147 of the Railways Act, 1989 - Summary of Acts and Sections: The court discussed the scope and operation of Section 147 of the Railways Act, 1989 in comparison to its predecessor statute, the Railways Act, 1890. It analyzed the penal nature of Section 147 and its association with other penal sections, concluding that it does not deal with unauthorised occupation but with offences and penalties of a criminal nature. The court also highlighted the absence of specific provisions for eviction of occupants in buildings which are Railway properties and may not be appurtenant to railway tracks. It emphasized the need for due process of law before evicting lawful occupants of railway properties. The court found that Section 147 of the 1989 Act is not ultra vires the Constitution but raised a reference to a Larger Bench on the issue of eviction of unauthorised occupants without resorting to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 or The West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962.
Fact of the Case:
The writ petitioners challenged a General Notice for eviction of commercial plots over Kharagpore Division of the South Eastern Railway dated November 23, 2015. The petitioners argued that the Notice issued under Section 147 of the Railways Act, 1989 conferred unbridled power on the railway-authorities to evict occupants arbitrarily without following due process of law. They contended that the said provision ought to be declared ultra vires the Constitution. The Railway-Authorities argued that the impugned notice was in public interest and that the Railways Act, 1989 provided a complete mechanism for evicting unauthorized occupants upon following due process of law and inquiry.
Finding of the Court:
The court found that Section 147 of the 1989 Act does not deal with unauthorised occupation but with offences and penalties of a criminal nature. It emphasized the need for due process of law before evicting lawful occupants of railway properties. The court also found that Section 147 of the 1989 Act is not ultra vires the Constitution but raised a reference to a Larger Bench on the issue of eviction of unauthorised occupants without resorting to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 or The West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962.
Issues: The issues in the present case were: (i) Whether an occupant of property belonging to the Railways can be evicted without due process of law and without being given any prior opportunity of hearing, under Section 147 of the Railways Act, 1989. (ii) Whether Section 147 of the Railways Act, 1989 is ultra vires the Constitution.
Ratio Decidendi: The court held that Section 147 of the 1989 Act does not deal with unauthorised occupation but with offences and penalties of a criminal nature. It emphasized the need for due process of law before evicting lawful occupants of railway properties. The court also found that Section 147 of the 1989 Act is not ultra vires the Constitution but raised a reference to a Larger Bench on the issue of eviction of unauthorised occupants without resorting to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 or The West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962.
Final Decision: The court disposed of the writ petition accordingly without any order as to costs and kept the final decision in abeyance, awaiting a reference to a Larger Bench on the issue of eviction of unauthorised occupants without resorting to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 or The West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962.
JUDGMENT
Sabyasachi Bhattacharyya, J. - The writ petitioners have challenged a General Notice for eviction of commercial plots over Kharagpore Division of the South Eastern Railway dated November 23, 2015. Learned counsel for the petitioner submits, at the outset that the Notice was apparently issued under Section 147 of the Railways Act, 1989 (for the sake of brevity, 'the 1989 Act'). It is submitted, at the outset, that the said provision confers unbridled power on the railway-authorities to evict occupants arbitrarily without following due process of law. As such, the said provision ought to be declared ultra vires the Constitution. It is not only violative of the Natural Justice principle of audi alterem partem but also contravenes Article 14 of the Constitution of India since parallelly, the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as, 'the 1971 Act') provides for a detailed procedure and right of show cause to the occupants prior to such eviction, even if an unauthorized occupant.
2. It is submitted that such disparity between otherwise similarly placed occupants, both in respect of Government property, shall create an anomaly inasmuch as the authority may take out proceedings duly under the 1971 Act against some occupants and a summary procedure, without any due process of law under Section 147 of the 1989 Act against others.
3. Section 147 of the 1989 Act, it is argued, has no non-obstante clause to exclude Sections 4, 5 and 7 of the 1971 Act. Hence, parallel proceedings are maintainable under both Acts, which gives rise to the possibilities of unequal usage of the two in respect of different occupants.
4. Learned counsel then argues that sub-section (2) of Section 147 makes itself subservient to sub-section (1) thereof by using the expression 'subject to' subsection (1). Hence, unless it is determined upon giving opportunity of hearing to the occupant that the said occupant is in illegal or unlawful occupation of the premises, no proceedings for eviction or removal can be undertaken within the contemplation of the said Act.
5. In the present case, it is argued, the petitioners have been occupying the disputed premises by virtue of leave and licence granted by the Railway- Authorities for quite a long time. Occupation charges have been paid by the petitioners and received by the Railway-Authorities, much after the issuance of the impugned notice and even five years into pendency of the present writ petition. As such, it cannot be said that the petitioners are unlawful occupants. Hence, neither Section 147 of the 1989 Act nor Sections 4, 5 and 7 of the 1971 Act are applicable to them.
6. Learned counsel for the petitioner argues that the 1971 Act, being a special statute in respect of eviction of unauthorised occupants, prevails over the 1989 Act, which is general vis-à-vis unauthorised occupants.
7. It is next argued that the impugned notice was bad in law, as the same was issued by the Senior Divisional Manager of the South Eastern Railway without any authority to represent the Railways for the purpose of Section 147.
8. That apart, a change of user has been alleged in the notice, which is palpably incorrect. The property was originally taken on leave and licence for carrying on trade. Although the trade which was originally carried on is different from the present one, the use of the premises remains the same inasmuch as it is being used still for the purpose of trading.
9. Full payment of occupation charges have been made up to the year 2021, that is, much after the filing of the writ petition itself in the year 2016, and accepted by the Railway-Authorities from the petitioners. As such, any right to evict the petitioner, even if available to the Railway by virtue of the notice, has been subsequently waived.
10. Learned counsel for the petitioner next contends that under the provision of Section 147 of the 1989 Act, 'any railway servant' or 'any person' (even if a rank outsider)
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