Calcutta High Court (Appellete Side)
Priyadarshini Educational Society And … vs Steel Authority Of India And Others on 11 September, 2024
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Shampa Sarkar
WPA 22009 of 2023
Priyadarshini Educational Society and another
vs.
Steel Authority of India and others
For the petitioners : Mr. Pradyumna Sinha
Mr. Sannidhya Datta
Ms. Anjali Roy
For the SAIL : Mr. L. K. Gupta, Sr. Adv.
Mr. K. Basu
Mr. C. Gupta
Mr. N. Pal
Mr. S. Chatterjee
Mr. D. R. Basu
Hearing concluded on :16.08.2024
Judgment on : 11.09.2024
Shampa Sarkar J.:-
1. The writ petition had been filed seeking quashing of the notice dated
August 31, 2023, issued under sub-Section (1), sub-Section (2)(b)(ii) of
Section 4 and Sub-Section (3) of Section 7 of the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 (hereinafter referred to as the said Act),
by the respondent No.4, i.e., the Estate Officer (SAIL-IISCO Steel Plant,
Burnpur) and SAIL Growth Works, (SGW), Kulti. The notice was issued in PP
case No EO/AUGUST/KULTI/2023/01.
2. The notice disclosed that the Estate Officer had received an
application dated August 22, 2023, from SGW, Kulti, regarding
unauthorized occupation of the public premises and non-payment of
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outstanding dues, by the petitioners. The Estate Officer was of the opinion
that the petitioner No. 1 was in unauthorized occupation of the public
premises mentioned in the schedule of the notice and was liable to be
evicted under the said Act.
3. The grounds for initiation of proceedings, as stated in the notice are
quoted below:-
“(a) The premises described in the schedule below belongs to the
Applicant Company with right title and interest and are “public
premises” in terms of the Public Premises (eviction of unauthorized
occupants) Act, 1971
(b) You are in unauthorized occupation of the public premises
belonging to the Steel Authority of India Limited- Growth Works Kulti,
the Applicant Company.
(c) You have not paid an amount of Rs. 22,13,216.38 (Rupees twenty-
two lakh thirteen thousand two hundred sixteen and paisa thirty-
eight only) towards rent, electricity, interest of the said premises
accrued till 30.06.2023.
Now, therefore in pursuance of sub-section (1) of the Section 4 and
sub-section (3) of Section 7 of the Act, I hereby call upon you to show
cause on or before 12.09.2023 at 3:00 P.M. why such an order of
eviction should not be made.”
4. The petitioners have challenged the notice on the ground of lack of
jurisdiction of the Estate Officer to initiate the proceeding under the said
Act. The petitioner No.1 claimed to be a lessee by virtue of a registered lease
agreement dated December 28, 2012, executed by the SAIL, in favour of the
petitioner No.1.
5. The factual background of the case as pleaded in the petition was that
the petitioner No.1 as a registered educational society was running an
English medium school by the name of Priyadarshini Public School at Kulti
near Asansol. The said school was the most affordable English medium
school in the vicinity. Kulti was initially a unit of the erstwhile Indian Iron
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and Steel Company, (in short IISCO). On the demand of the employees for
establishment of a school for their children, the society was formed and
registered for the purpose of imparting education in English, within Kulti
Township. At the relevant point of time, the school catered to the wards of
7,500 employees of IISCO at Kulti and also to the local children. By an
agreement of lease dated November 19, 1992, between IISCO and the
petitioner No.1, a plot of land with a building and football ground
appertaining to R.S Khatian No.671 of Mouza – Kulti, was entered into. The
lease was granted for a period of 33 years with effect from April, 1990. The
lease agreement was not registered. IISCO was initially a subsidiary
company of Steel Authority of India Limited. In 2006, IISCO merged with
SAIL, by to a scheme of amalgamation. After such merger, the Kulti unit of
IISCO was renamed as IISCO Steel Plant, (ISP) and later renamed as SAIL
Growth Works (Kulti).
6. Mr. Pradyuman Sinha, learned Advocate for the petitioners submitted
that SGW continued to be referred to as IISCO in various official documents
of SAIL. The late president of the petitioner, No.1, by a letter dated July 21,
2012, requested the Executive Director of SGW, (Kulti) to nominate an
executive to represent SAIL for the purpose of registration of a lease
agreement in favour of the petitioner No.1. In response to the said letter,
SAIL nominated one Mr. Rajeev Kumar, the then Senior Manager (Pers.), to
represent SAIL in the process of registration of the lease agreement. A lease
agreement dated December 28, 2012, was registered between SAIL as the
lessor and the petitioner, No.1, as a lessee in the office of the Additional
Registrar of Assurances, III, being deed No. 04931 for the year 2012. By
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virtue of the lease agreement, the lessor granted lease of a plot of land with a
building and a football ground adjacent to the Kulti Police Station within
Mouja Kulti, in plot No. 825, for a period of 33 years, commencing from
December 2012, in lieu of rent of Rs.1/-. The petitioners were in possession
of the plot of land by virtue of a registered deed of lease, executed by an
authorized officer of ISP (SAIL), Kulti. The said Act had a limited operation
and provided for eviction of unauthorized occupants from public premises
and for other incidental matters prescribed in the statute itself. Initiation of
the process of eviction of the petitioners under the said Act, was contrary to
law and liable to be quashed. The registered lease deed had created a right
in favour of the petitioner No. 1 to use and possess the land for 33 years,
with effect from December 20, 2012. It was also urged that a complaint was
lodged before the Kulti Police Station by SAIL, alleging that the registered
lease deed dated December 20, 2012, was forged and fraudulently obtained.
That, Rajeev Kumar did not possess the necessary authorization to execute
the said deed. The deed was a product of forgery, fraud and
misrepresentation. When allegations of such nature were the subject matter
of a police investigation, the estate officer was not equipped to adjudicate
the matter.
7. The petitioners claimed that the unregistered lease agreement of
November 19, 1992 was novated by the subsequent registered lease
agreement dated December 28, 2012, executed in favour of the petitioner
No. 1 by the SAIL, for a period of 33 years, commencing from December,
2012.
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8. According to the petitioners, the allegations of forgery, lack of
competence of the signatory, creation of a void document etc., were subject
to proof. Evidence was required to be led. Unless SAIL challenged the
registered lease deed and got the same cancelled by a civil court, the
question of initiation of eviction proceeding under the said Act, against the
petitioners who were in settled possession of the property as lessees, would
not arise.
9. If a person occupied any public premises without authority for such
occupation and/or continued to occupy the public premises after the
authority under which he was allowed to occupy the premises had expired
or had been determined for any reason whatsoever, such person would be
considered as an unauthorized occupant under Section 2(g) of the said Act.
In this case, the petitioners were in authorized occupation by virtue of the
registered lease of deed. The said registered lease deed had a presumption of
correctness. The lease deed dated December 28, 2012, would indicate that
the same was registered between Indian Iron and Steel Company, (ISP SAIL)
and the petitioners. The expression “ISP SAIL” was inserted in hand writing
with a counter signature.
10. According to the petitioners, (SGW), Kulti continued to be represented
as ISP SAIL, in various official documents, and only because Indian Iron and
Steel Company Ltd., was mentioned as the lessor with (ISP SAIL), written in
hand, the case of the respondents that ISP SAIL as the lessor did not have
the authority and competence to enter into the said lease agreement, should
not be accepted as correct, without any trial by the civil court.
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11. Relying on the decision of the Division Bench of this court in two
public interest litigations, it was submitted by Mr. Sinha, that the lease
granted by the respondents in favour of the Priyadarshini Public School was
the subject matter of the said litigations and the Division Bench had
rejected the plea of illegality in grant of lease of the land to the school.
According to the Division Bench, the school was running since 1992
pursuant to a lease agreement and it was too late to challenge the action of
the respondent authorities in leasing out the land to the school. Moreover, it
was recorded that the school was catering to the educational need of the
students in the locality, and the allegation of misappropriation of money
against SAIL, was found to be vague and non-specific.
12. According to Mr. Sinha, although the terms and conditions of the
registered lease deed dated December 28, 2012, were analogous to the
unregistered lease deed dated November 19, 1992, the period of lease in the
registered lease deed was for 33 years, from December 2012.
13. The letter dated August 9, 2023, issued by the authorities of SAIL,
alleging that the petitioners were in unauthorized occupation of the land
and calling upon them to vacate the premises, offended the covenants of the
registered lease deed. The petitioners replied to the said letter and disclosed
that by virtue of the registered lease deed dated December 28, 2012, ISP
SAIL had granted a lease for 33 years from December 12, 2012 onwards and
the petitioners could not be considered as unauthorized occupants. The
proceeding initiated under the said Act, was an erroneous exercise of
jurisdiction by the Estate Officer.
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14. Mr. Sinha contended that the validity of the transfer on the basis of
the deed had to be decided first. The persons alleging forgery, fraud and
misrepresentation were required to establish such allegations in a court of
law by leading proper evidence. Only if, the lease deed was found to be
invalid and was cancelled by the civil court, could the petitioners be termed
as unauthorized occupants. Mere statement by the respondents that Rajeev
Kumar had subsequently denied his signature, could not be a ground for
acceptance of the contention of the respondents that the deed was forged
and no right had passed on the basis of the deed. Whether the signature on
the lease deed was of Rajeev Kumar or not, whether ISP SAIL was the
expression used in official documents and was accordingly used in the lease
deed to describe the lessor (SAIL), whether the Executive Director of SAIL
Growth Works at Kulti, had actually authorized Mr. Rajeev Kumar to
register the lease deed, were all matters of evidence. These questions could
not be decided, except by a civil suit.
15. Under the provisions of Section 114(1)(e) of the Indian Evidence Act
corresponding to Section 119(1)(e) of the Bharatiya Sakshya Adhiniyam,
2023, a presumption of correctness was attached to such registration. It was
beyond the jurisdiction of the Estate Officer to decide such questions. Only a
competent civil court could decide on the genuineness of the registered lease
deed and also whether such deed had created any right in favour of the
petitioners. The instrument could not be ignored. The registered deed could
not be considered to be void ab initio on the ground of lack of competence of
ISP SAIL to execute the same. The civil court was the only forum before
which the execution of a registered document, could be impugned.
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16. Without appreciating the evidence to be led by the petitioners in
support of their contention that despite the merger of IISCO with SAIL, SAIL
Growth Works, Kulti was represented as ISP in various official works.
Moreover, the denial of Rajeev Kumar was also a matter of evidence and the
registering authority, in exercise of power under Section 34 (3), had
enquired and satisfied himself as to the identity of the persons who were
presenting the deed for registration.
17. Mr. Sinha relied on the following decisions:-
(i) Prem Singh and Ors. vs Birbal and Ors. reported in (2006) 5
SCC 353,
(ii) Rattan Singh and Ors. vs Nirmal Gill and Ors. reported in
(2021) 15 SCC 300,
(iii) Manik Majumdar and Ors. vs Dipak Kumar Saha (dead)
through legal representatives and Ors. reported in (2023) 8
SCC 410,
(iv) Asset Reconstruction Co. (India) Ltd. v. S.P. Velayutham and
Ors., reported in (2022) 8 SCC 210,
(v) State of Rajasthan vs. Padmavati Devi (SMT) (DEAD) By LRS. &
ors. reported in 1995 SUPP (2) SCC 290,
(vi) Kaikhosrou (Chick) Kavasji Framji v. Union of India and Anr.,
reported in (2019) 20 SCC 705,
(vii) State of U.P. and Anr. v. Zia Khan, reported in (1998) 8 SCC
483.
18. Mr. L. K. Gupta, learned Senior Advocate appearing for the
respondents submitted that the lease deed of 2012 was kept a secret by the
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writ petitioners and was not available in the records of SAIL. The lease deed
was disclosed for the first time by the petitioners on August 19, 2023, in the
reply to letter dated August 9, 2023. Although, the agreement of 1992 was
unregistered, SAIL acknowledged the same. On the expiry of the tenure of
the lease on April 2023, the letter dated August 9, 2023 was issued to the
petitioner No.1 and the Principal, asking them to hand over peaceful
possession of the said premises. According to Mr. Gupta, the decision of the
Division Bench in the public interest litigation did not mention the lease
deed of 2012. The possession of the petitioners was not upheld on the basis
of the purported lease deed of 2012. The Division Bench took into account
the lease deed of 1992. After the merger of IISCO with SAIL, IISCO could not
execute the deed as a lessor, in respect of SAIL’s property. Rajeev Kumar,
who claimed to be the manager, could not also sign the lease deed, without
authorization from the board of directors.
19. The scheme of amalgamation in 2006, provided that all the properties
and rights belonging to IISCO would vest in SAIL. IISCO stood automatically
dissolved, without being bound up. After the amalgamation in 2006, the
owner of the property was SAIL and lease of said property could be granted
only by SAIL and neither by IISCO nor ISP. Thus, the document was a void
contract. The same was not required to be avoided. The executant Rajeev
Kumar was also not authorized by SAIL to execute the lease deed and the
purported letter of authorization relied upon, carried no legal value. In view
of the above facts, neither any right nor any interest had been created in
favour of the petitioner No.1. The said execution was also contrary to the
provisions of Section 7 of the Transfer of Property Act. The purported
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document of 2012 was not a valid deed in the eye of law, notwithstanding its
registration. The presumption of correctness of registration was rebuttable
and did not create a complete right in favour of the petitioners. The
purported document did not bear the formal seal of SAIL. As the document
was void ab initio, the status of the petitioners as unauthorized occupants
satisfied the definition under Section 2(g) of the said Act. The Estate Officer
was the only authority who had jurisdiction to initiate the eviction
proceedings. No right had passed in favour of the petitioners on the basis of
the alleged registered deed. The same was executed by a person who was not
competent to contract. All necessary objections challenging the eviction
proceedings, even the issues raised by the petitioners could well be decided
by the Estate Officer.
20. According to Mr. Gupta, Section 8 of the said Act conferred powers of
the civil court upon the Estate Officer with regard to matters specified
therein, and the Estate Officer could also summon witnesses and receive
evidence. From the preamble to the said Act, it was evident that the
legislature had promulgated the said Act to provide for a speedy conclusion
of proceedings of eviction of unauthorized occupants from public premises,
thereby, segregating such cases from the applicability of the general tenancy
laws. Under such circumstances, the question of relegating the matter to the
civil court for adjudication, would not be the proper course of action.
21. According to Mr. Gupta, a company could only act through its board
of directors. Even the grant of lease would have to be permitted by the board
of directors, by a proper resolution. In the present case, no approval was
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granted by the board of directors, permitting execution of the deed of lease
dated December 28, 2012.
22. Mr. Gupta urged this court to appreciate that registration was not a
curative act, to validate an otherwise invalid transfer. When the deed was
itself void ab initio, no declaration from a civil court was required to avoid
the document.
23. In this case, the lessor/executant, was a non-existing entity, which
stood dissolved in 2006. After passage of six years, any deed executed in the
name of IISCO and signed by an unauthorized person, should be treated as
void. No interest could have passed on the basis of such lease. In such view
of the matter, no complicated questions of fact arose, which would require a
civil court to adjudicate the matter, upon appreciation of evidence.
24. Mr. Gupta relied on the following decisions:-
(i) Prem Singh and Ors. v. Birbal and Ors., reported in (2006) 5
SCC 353.
(ii) Ranganayakamma and Anr. v. K.S. Prakash, (dead) by L.R.S
and others, reported in (2008) 15 SCC 673,
(iii) Smt. Bismillah v. Janeshwar Prasad and Ors., reported in
(1990) 1 SCC 207,
(iv) Board of Trustees for the Port of Kolkata and Anr. v. Vijay
Kumar Arya and Ors., reported in 2009 SCC OnLine Cal 266,
(v) Hitkarini Sabha, Jabalpur v. Corpn. of the City of Jabalpur,
and Ors. reported in (1972) 2 SCC 325,
(vi) P.P. Raja Reddy, In re, reported in (1997) 1 Cal LT 387
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(vii) Balai Chandra Mondal v. Indurekha Debi and Ors., reported in
AIR 1973 SC 782.
25. The question which arises before this Court is whether the proceeding
initiated by the Estate Officer, by issuance of the notice on August 31, 2023
under the said Act, can be permitted to continue in the facts and
circumstances of the case. The petitioners relied on a registered deed of
lease executed in their favour on December 28, 2012 and claim that they are
not in unauthorized occupation of the public premises. The recital of lease
agreement starts as follows:-
“THE INDIAN IRON & STEEL COMPANY LTD. (ISP, SAIL), registered
under Companies Act, 1956 and having its registered office at 50,
Chowringhee Road, Kolkata – 700071, (hereinafter called as the
Lessor, which expression shall unless excluded or repugnant to the
context be deemed to include its successors, administrators,
executors and assigns) of the ONE PART”
26. In this connection, the respondents contended that IISCO could not
have executed the deed because IISCO had merged with SAIL and did not
have a separate entity and existence. IISCO was incompetent to execute the
deed as it was a non-entity. Secondly, Rajeev Kumar, who had signed as the
General Manager of “IISCO, Kulti, (SAIL) SGW”, was not authorized by the
board of directors to execute such deed. Section 293(1) Companies Act,
1956 was relied upon to substantiate that only the board of directors could
grant lease of the property and any authorization without a resolution of the
board for such purpose, was contrary to law and could not be accepted as a
valid authorization.
27. According to the respondents, the lease deed was a creature of fraud,
misrepresentation and forgery. The same was entered into in a clandestine
manner and was kept a secret until the notice to hand over possession was
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served upon the petitioners. It was also specifically urged before this court
that after amalgamation of IISCO with SAIL, IISCO stood dissolved. IISCO
merged with SAIL. All actions to be taken, including execution of the deed
after 2006, would have to be done by SAIL. Only SAIL as the owner, upon a
resolution of the board, could pass any interest or right in respect of the
subject property in terms of Section 7 of the Transfer of Property Act. Thus,
the deed was void ab initio and the document was non-est as no right or title
had passed to the petitioners. The other line of argument of the respondents
was that the Estate Officer was conferred with the jurisdiction under the
said Act to adjudicate any matter relating to eviction of unauthorized
occupants. The questions whether the petitioners were unauthorized
occupants or not, whether the deed was a void document or not, whether
denial by Rajeev Kumar of having signed the deed etc, could be decided by
the Estate Officer. Moreover, as the deed was null and void, cancellation by
a civil court was not necessary. The Estate Officer could proceed with the
matter of eviction under the said Act and strictly in terms of the said Act. No
right had been created in favour of the petitioners on the basis of the deed.
When the document was void ab initio, the statutory authority could decide
the matter and no suit before the civil court was required to be filed. No
bona fide claim of right of possession could be made by the petitioners. The
presumption of validity of a registered deed, was a rebuttable presumption.
The scheme of amalgamation, the lack of authority of Rajeev Kumar, the
absence of the Board’s resolution authorizing Rajeev Kumar to execute the
deed and finally, the emergence of the deed in 2023 without the same
having been mentioned even in the public interest litigations, clearly
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indicated that the deed had no existence in the eye of law and thus, no
complicated evidence was required to be accepted in this regard, for the
Estate Officer to come to a conclusion that the petitioners were
unauthorized occupants. Mere registration would not cure the defect of lack
of competence of the alleged lessor who executed the deed. Such registration
would not perfect the right of the petitioner No.1 as a lessee in the absence
of a valid authorization in favour of Rajeev Kumar. When the right to use the
land did not pass on the basis of any valid document, the petitioners were
unauthorized occupants.
28. A proceeding for eviction of the petitioners who fitted into the
definition of unauthorized occupant as per Section 2(g) of the said Act was
valid and in accordance with law. In the decision of Board of Trustees for
the Port of Kolkata (supra), the High Court had categorically held that
Section 15 of the said Act barred the jurisdiction of the civil court and
eviction of a person who was in unauthorized occupation of public premises,
should not be decided by a civil suit. The Division Bench held that although
an Estate Officer was not required to be versed in law, he had sufficient
powers to decide the question as to whether a notice under Section 4 of the
said Act should be served upon an unauthorized occupant. The notice would
permit the Estate Officer to proceed to evict the occupant who was adjudged
to be unauthorized. Just as in the case of a tenancy governed by the
Transfer of Property Act, the landlord would have to justify his decision to
determine the lease or terminate the authority of the occupier to remain in
possession in a civil suit instituted either by the landlord for eviction or by
the occupier challenging the notice, so also, the statutory authority as the
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landlord under the provisions of the Act of 1971 could determine the
tenancy/lease and proceed to evict the unauthorized occupant whose right
to remain had been determined by a notice. The Act removed the authority
of the civil court to adjudicate such issue and placed the matter before an
Estate Officer to be decided in a summary proceeding. The Estate Officer
could look into all materials before him and in fit cases receive oral evidence
before he could arrive at a conclusion as to whether the noticee was in
unauthorized occupation of the premises or not. If the Estate Officer held
that the noticee was an unauthorized occupant, he could proceed to remove
the noticee and his belongings from the premises in question. The usual
process under the Civil Procedure Code was merely substituted by a
summary procedure before the Estate Officer and the entire scope of
adjudication on the issue of eviction was removed from the civil court’s
jurisdiction and placed before the estate officer.
29. Under such circumstances, it was submitted on behalf of the
respondents that the Estate Officer could decide the entire issue and the
petitioner’s defence could be urged before the Estate Officer. Reliance was
placed in the matter of Smt. Bismillah (supra) in support of the contention
that exclusion of the jurisdiction of the civil court by a statute, was to be
strictly construed. A distinction was drawn by the Hon’ble Apex Court
between fraudulent misrepresentation as to the character of a document
and fraudulent misrepresentation as to the contents thereof. The Hon’ble
Apex Court held that a contract or other transaction induced or tainted by
fraud as to the content was not void, but voidable at the option of the party
defrauded and such contract was required to be avoided, but the position
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was different if fraud or misrepresentation related to the character of the
document. It was submitted that in this case the challenge was to the
character of the document (lease deed). Strong reliance was placed on the
decision of Prem Singh and others (supra) and paragraph 16 was referred.
Paragraph 16 is quoted below:-
“When a document is valid, no question arises of its cancellation.
When a document is void ab initio, a decree for setting aside the same
would not be necessary as the same is non est in the eye of law, as it
would be a nullity.”
30. Thus, Mr. Gupta drew substantial support from the observation of the
Hon’ble Apex Court that if a document was void ab initio, a decree for setting
aside the same would not be necessary, just as in the instant case. The deed
of lease was non-est in the eyes of law and a nullity. Such plea could be
raised in this proceeding or collateral proceedings.
31. Further reliance was placed on the decision of Ranganayakamma
and anr. (supra) on the same proposition that a void document was not
required to be avoided, unlike a voidable one. Reliance was further placed
on the decision of Balai Chandra Mondal (supra), in support of the
contention that it was a well-recognized principle that if the transferor
himself had no title to the property, he should at least have the authority to
transfer the same as per the provisions of Section 7 of the Transfer of
Property Act. Only a person authorized to dispose of a transferable property,
not his own, was competent to transfer it either wholly or in part.
32. Reference was made to the decision of Hitkarini Sabha, Jabalpur,
(supra) in support of the contention that a property which vested in the
government, could not be conveyed either by way of lease or license by an
administrator, who had no authority to dispose of such property. Similarly,
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the officer who executed the lease deed had no power to transfer the
property in question. The grant of lease was wholly null and void.
33. Support was also drawn from the decision In re: P.P. Raja Reddy
(supra) for the proposition that, it was beyond the jurisdiction of the writ
court to decide the validity of the deed of lease, as no public law element
was involved. The disputed questions of fact should not be gone into. The
land on which the buildings stood, admittedly belonged to a public authority
which was State under Article 12 of the Constitution of India and any
transfer of such land must conform to the provisions of Article 298 of the
Constitution of India. The writ court should not probe deeper into the
factual dispute with regard to the validity of the deed of lease and other
circumstances and evidence which led to the execution thereof. It was urged
that the matter should be left to be decided by the Estate Officer.
34. The petitioners on the other hand claimed that the registered deed of
lease carried a presumption of correctness. The registration took place in the
office of the Additional Registrar of Assurance-III, being deed No.04931 for
the year 2012. The deed was a public document. Knowledge was presumed.
The Division Bench, in the public interest litigations, recorded the
possession of the petitioner since 1992. However, this court finds that the
deed of 2012, was not mentioned in the order and the petitioner cannot
draw any reliance from the said order, with regard to the existence or
recognition of the said deed. However, under the provisions of Section
114(1)(e) of the Indian Evidence Act, 1872 corresponding to Section 119(1)(e)
of the Bharatiya Sakshya Adhiniyam, 2023, there is a presumption of
genuineness of a registered document. The petitioners are not required to
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establish the validity of the registered deed dated December 28, 2012 as the
same is presumed to be valid, until the presumption is rebutted by strong
evidence to be led by the respondents. There is a presumption that the
registered deed was validly executed. The onus would be on the persons who
deny its existence, to lead evidence and rebut such presumption.
35. In my opinion, the decision of Prem Singh and others (supra), will
not help the respondents. The question before the Hon’ble Apex Court was
whether the provisions of Article 59 of the Limitation Act would be attracted
in the suit filed for setting aside a deed of sale. The plaintiff filed the suit for
declaration and partition of the land consisting of 19 bighas and 12 cottahs,
claiming to be a co-sharer with the defendant. The suit was filed by the
plaintiff alleging that his father had a share. His father died in 1950. The
mother died soon thereafter. At the time of death of the father, the plaintiff
was a minor. He started living with the defendant and a deed of sale was
allegedly executed in December 1961, in the name of the plaintiff when he
was a minor, by showing his age to be 26 years in the same deed. Only in
August 1979 he gathered information of such transfer and filed the suit on
September 24, 1979. The defendant in the suit pleaded that the suit was
barred by limitation. The suit was dismissed by the trial court, inter alia,
holding that the same was barred by limitation. An appeal was preferred
against the plaintiff (erst-while minor) and the first appellate court held that
the deed of sale was executed by playing fraud on the plaintiff who was a
minor at the relevant point of time and the deed of sale was, thus, void ab
initio. The limitation of three years from the date of attaining majority as
provided under Article 60 of the Limitation Act, would not be applicable. A
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second appeal was preferred by the defendants and the same was
dismissed. The matter went up to the Hon’ble Apex Court. The defendant in
the suit who was the appellant before the Hon’ble Apex Court contended
that the suit was filed on September 24, 1979 for setting aside the deed of
sale dated December 1, 1961. Thus, the suit was barred by limitation. The
period for setting aside such deed of sale started to run from the date the
minor attained majority. The minor was required to file the suit within three
years from 1969, when he attained majority. The Hon’ble Apex Court held
that Article 59 of the Limitation Act would be applicable, specifically when a
relief was claimed on the ground of fraud or mistake. It encompassed
fraudulent transactions which were avoidable transactions. Section 31 of
the Specific Relief Act was also relied upon which provided that any person
against whom a written instrument was void or voidable, or who had
reasonable apprehension that such instrument, if left outstanding, would
cause him serious injury, could sue for having it adjudged as void or
voidable, and the court could, in its discretion, adjudge such matter and
pass order by cancelling the said document. According to the Hon’ble Apex
Court, Section 31 of the Specific Relief Act referred to both void and voidable
documents. It provided for a discretionary relief. The observation of the Apex
Court that in case of a document which was void ab initio, a decree for
setting aside the same, was not necessary, was an observation but not the
ratio of the decision. The conclusion arrived at was that, in order to avoid
the sale on the ground of lack of competence of a minor to execute it, the
suit should have been filed within the period of limitation. On the facts
before the Hon’ble Apex Court, the minor, who filed the suit, was successful
20
before the first appellate court and the second appellate court on the ground
that a deed executed by the minor was void ab initio, and the provision of
the Limitation Act, would not apply. Although, the Hon’ble Apex Court in
paragraph 16 has mentioned, that when a document which was void ab
initio, a decree for setting aside the same would not be necessary, yet the
Hon’ble Apex Court held that there was a presumption that the registered
document was validly executed. The Hon’ble Apex Court allowed the appeal,
inter alia, holding that the plaintiff should have filed the suit within the
period of limitation. The Hon’ble Apex Court was of the view that the suit
was rightly dismissed by the learned trial judge, inter alia, holding that the
period of limitation would apply. Thus, the facts of the case, and the
decision of the Hon’ble Apex Court, are contrary to what has been urged by
Mr. Gupta. Paragraph 27 of the said decision is quoted below:-
“27. There is a presumption that a registered document is validly
executed. A registered document, therefore, prima facie would be valid
in law. The onus of proof, thus, would be on a person who leads
evidence to rebut the presumption. In the instant case, Respondent 1
has not been able to rebut the said presumption.”
36. In Ranganayakamma (Supra), the Hon’ble Apex Court relied on
paragraphs 16 and 27 of Prem Singh (supra), and held that a document or
a contract would be voidable if it was entered into by coercion,
misrepresentation or fraud, and the particulars thereof were required to be
pleaded. Paragraphs 37 and 38 of the said judgment is quoted below:-
“37. The aforementioned findings have a direct bearing on the
question as to whether the deed of partition as also the powers of
attorney were vitiated by reason of any fraud or mistake on the part of
Respondents 1 and 2 herein. It is a well-settled principle of law that a
void document is not required to be avoided whereas a voidable
document must be. It is not necessary for us to advert to a large
number of decisions of this Court and other High Courts on this issue
as more or less it is concluded by a decision of this Court in Prem
21
Singh v. Birbal [(2006) 5 SCC 353] wherein this Court held: (SCC p.
368, para 16)
“16. When a document is valid, no question arises of its
cancellation. When a document is void ab initio, a decree for
setting aside the same would not be necessary as the same is non
est in the eye of the law, as it would be a nullity.”
38. Section 16 of the Contract Act provides that any transaction
which is an outcome of any undue misrepresentation, coercion or
fraud shall be voidable. If, however, a document is prima facie valid, a
presumption arises in regard to its genuineness. In Prem
Singh [(2006) 5 SCC 353] it was stated: (SCC pp. 360-61, para 27)
“27. There is a presumption that a registered document is
validly executed. A registered document, therefore, prima facie
would be valid in law. The onus of proof, thus, would be on a
person who leads evidence to rebut the presumption. In the instant
case, Respondent 1 has not been able to rebut the said
presumption.”
It was opined: (SCC pp. 357-58, para 12)
“12. An extinction of right, as contemplated by the provisions of
the Limitation Act, prima facie would be attracted in all types of
suits. The Schedule appended to the Limitation Act, as prescribed
by the articles, provides that upon lapse of the prescribed period,
the institution of a suit will be barred. Section 3 of the Limitation
Act provides that irrespective of the fact as to whether any defence
is set out or is raised by the defendant or not, in the event a suit is
found to be barred by limitation, every suit instituted, appeal
preferred and every application made after the prescribed period
shall be dismissed.”
In Rukhmabai [AIR 1960 SC 335 : (1960) 2 SCR 253] this Court held:
(AIR p. 344, para 17)
“17. In unravelling a fraud committed jointly by the members of
a family, only such letters that passed inter se between them can
give the clue to the truth.”
Yet again in A.C. Ananthaswamy v. Boraiah [(2004) 8 SCC 588] this
Court categorically laid down that in establishing alleged fraud, it
must be proved that the representation made was false to the
knowledge of the party making such representation or that the party
could have no reasonable belief that it was true. Level of proof
required in such a case was held to be extremely high.
37. Thus, reliance on the said decision also, does not also come to the aid
of the respondents. In Ratan Singh and ors. (supra), the principle of law
as laid down in paragraph 27 of Prem Singh (supra), was followed.
Relevant paragraphs 33 and 34 are quoted below:-
22
“33. To appreciate the findings arrived at by the courts below, we
must first see on whom the onus of proof lies. The record reveals that
the disputed documents are registered. We are, therefore, guided by
the settled legal principle that a document is presumed to be genuine
if the same is registered, as held by this Court in Prem
Singh v. Birbal [Prem Singh v. Birbal, (2006) 5 SCC 353] . The
relevant portion of the said decision reads as below : (SCC pp. 360-61,
para 27)
“27. There is a presumption that a registered document is
validly executed. A registered document, therefore, prima
facie would be valid in law. The onus of proof, thus, would be on a
person who leads evidence to rebut the presumption. In the instant
case, Respondent 1 has not been able to rebut the said
presumption.”
(emphasis supplied)
In view thereof, in the present cases, the initial onus was on the
plaintiff, who had challenged the stated registered document.
34. Be that as it may, before examining whether the plaintiff
discharged that onus and thus shifted it on the defendants, we may
take note of procedure prescribed for proof of execution of document.
In this regard, we refer to Section 68 of the Evidence Act, 1872 (for
short “the 1872 Act”). The same is reproduced hereunder:
“68. Proof of execution of document required by law to be
attested.–If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the Court and
capable of giving evidence:
Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not being a
will, which has been registered in accordance with the provisions of
the Indian Registration Act, 1908 (16 of 1908), unless its execution
by the person by whom it purports to have been executed is
specifically denied.”
38. In the decision of Manik Mojumdar (supra), the Hon’ble Apex Court
held that registration of a document was a solemn act of parties and the
recitals of a registered document were presumed to be valid, unless such a
presumption was rebutted by strong evidence to the contrary. The document
speaks for itself. Once a registering authority accepts a document for
registration, it becomes, prima facie, evidence that the conditions required
for such registration had been satisfied and the burden of proving any
23
alleged infirmity was on the person who challenged the registration.
Relevant paragraphs are quoted below:-
“79. It is trite that registration of a document is a solemn act of
parties and the recitals of a registered document are presumed to
be valid unless such a presumption is rebutted by strong evidence
to the contrary, vide Ishwar Dass Jain v. Sohan Lal [Ishwar Dass
Jain v. Sohan Lal, (2000) 1 SCC 434] . This is because, as already
stated, the document speaks for itself.
80. In Chhotey Lal v. Collector of Moradabad [Chhotey
Lal v. Collector of Moradabad, 1922 SCC OnLine PC 48 : (1921-22)
49 IA 375 : AIR 1922 PC 279] the Privy Council considered the
question as to the presumption of validity of a power of attorney
which formed the basis of a registered mortgage deed which was
later challenged. The Privy Council noted that since the Sub-
Registrar had accepted the document for registration, it is prima
facie evidence that the conditions have been satisfied and after
registration of the document, the burden of proving any alleged
infirmity rests on the person who challenges the registration.
81. Similarly, in Jugraj Singh v. Jaswant Singh [Jugraj
Singh v. Jaswant Singh, (1970) 2 SCC 386] , this Court reiterated
the legal position as to the presumption of regularity of official acts,
and held that it would be presumed that a Sub-Registrar registering
a document would have proceeded with the registration only on
satisfying himself as to the fact that the person who was executing
the document was the proper person.
82. Reliance may also be placed on the decision of this Court
in Rattan Singh v. Nirmal Gill [Rattan Singh v. Nirmal Gill, (2021)
15 SCC 300] . In the said case, the issue pertained to the validity of
a general power of attorney (hereinafter “GPA”) and consequently of
sale deed executed on the strength of the GPA. The plaintiff therein,
being the executor of the GPA contended that the GPA was obtained
fraudulently and was therefore invalid. This Court, while holding
that no case of fraud was made out, upheld the validity of the GPA
and sale deed executed on the strength of the GPA. The relevant
observations of this Court as to the presumption of validity of
documents and burden of proof required to rebut such
presumption, are extracted as under : (Rattan Singh case [Rattan
Singh v. Nirmal Gill, (2021) 15 SCC 300] , SCC p. 332, para 74)
“74. The presumption in favour of a 30-year old document,
therefore, is a rebuttable presumption. Nothing prevented the
plaintiff to rebut the presumption by leading appropriate
evidence in order to disprove the same. Since the plaintiff failed
to do so, the said document would be binding on the plaintiff.
As a matter of fact, the parties had acted upon the terms of the
said document without any demur since 1963 and it was,
therefore, not open to resile therefrom at this distance of time.
24
Hence, the trial court was right in holding the 1963 GPA, to be a
genuine document.”
83. In short, it has been authoritatively laid down by this Court
that a registered document carries with it, by virtue of it being
registered, the presumption as to the authority of the person
executing it. In the present case, the trial court and the first
appellate court failed to treat the endorsement made by the District
Sub-Registrar on the body of sale deed, as evidence in respect of the
authority of Plaintiff 2 to execute sale deed. This is to be considered
in light of the fact that at no point of time did the original owner,
namely, Braja Mohan Dey dispute the execution of power of
attorney in favour of Plaintiff 2.”
39. In Padmavati Devi (supra) it was held that a summary procedure for
eviction of a person who was found to be in unauthorized occupation of
government land could not be invoked where the person in occupation
raises a bona fide dispute about his right to remain in occupation of the
property. The summary procedure was not suited for adjudication of
complicated questions of title.
40. In the instant case, the deed of lease is a registered document and
there is a presumption of its correctness. The allegation is that the said deed
was entered into unauthorizedly, by practicing fraud and misrepresentation
as IISCO did not have any existence at the execution of the deed. Thus, the
proper remedy of the respondent would be to get the deed avoided by a civil
court, by leading evidence against such presumption.
41. The Hon’ble Apex Court in Zia Khan (supra) held that the question of
title could not be decided under the Uttar Pradesh Public Premises (Eviction
of Unauthorized Occupants) Act, 1972.
42. A similar issue was decided by the Hon’ble Apex Court that, if a bona
fide dispute with regard to the right to remain in occupation over
25
government land was raised, the summary proceeding could not be resorted
to.
43. In Asset Reconstruction Company Limited, (supra), it was held that
in a suit for declaration of title or in a suit for declaration that a registered
document was null and void, the steps which comprised the entire process
of execution and registration would come under challenge. If a party
questioned the very execution of a document or the right and title of the
person to execute and present the document for registration, his remedy
would be to go to a civil court. The declaration that the document was null
and void, was exclusively within the domain of the civil court. Relevant
paragraphs are quoted below:-
“57. In suits for declaration of title and/or suits for declaration that a
registered document is null and void, all the aforesaid three steps
which comprise the entire process of execution and registration come
under challenge. If a party questions the very execution of a
document or the right and title of a person to execute a document
and present it for registration, his remedy will only be to go to the
civil court. But where a party questions only the failure of the
registering authority to perform his statutory duties in the course of
the third step, it cannot be said that the jurisdiction of the High
Court under Article 226 stands completely ousted. This is for the
reason that the writ jurisdiction of the High Court is to ensure that
statutory authorities perform their duties within the bounds of law.
58. It must be noted that when a High Court, in exercise of its
jurisdiction under Article 226 finds that there was utter failure on
the part of the registering authority to stick to the mandate of law,
the Court merely cancels the act of registration, but does not declare
the very execution of the document to be null and void. A declaration
that a document is null and void, is exclusively within the domain of
the civil court, but it does not mean that the High Court cannot
examine the question whether or not the registering authority
performed his statutory duties in the manner prescribed by law.”
44. In Narendra Kumar Mittal and ors. vs. Nupur Housing
Development Pvt. Ltd and anr. reported in (2020) 20 SCC 158, the
Hon’ble Apex Court held that, as the plaintiff claimed title under the sale
26
deed of 1998 executed by the first defendant, it was not required to seek a
declaration of title. Therefore, the plaintiff had filed a suit for cancellation of
the subsequent sale deed executed by the first defendant in favour of the
second defendant. Hence, there was no bar under Section 331 of the U.P.
Zamindari Abolition and Land Reforms Act, 1950, to the continuation of the
suit before the civil court and the civil court had rightly held that the suit
was maintainable. Relevant paragraphs are quoted below:-
“6. In the instant case, the plaintiff has pleaded that it had
purchased the disputed property under five sale deeds all dated 17-
10-1998 from the first defendant. The suit was filed for cancellation
of the sale deed dated 15-6-2006 on the ground of fraud and
misrepresentation. The plaintiff had not sought any relief with
respect to its own right and title as a tenure-holder or declaration of
its title or status. As stated above, the only relief sought in the suit
filed was for cancellation of the alleged sale deed dated 15-6-2006.
We are of the view that Section 331 of the Act does not deprive a
party of his right to approach the competent court of law for getting a
document cancelled, especially when, prima facie, the title of the
recorded tenure-holder is not under cloud. The Revenue Court does
not have jurisdiction of granting relief of cancellation of a deed on the
ground of fraud and misrepresentation.
7. A similar question in relation to the maintainability of the suit was
considered by the Full Bench of the Allahabad High Court in Ram
Padarath v. Addl. District Judge [Ram Padarath v. Addl. District
Judge, 1988 SCC OnLine All 685 : 1989 RD 21] , and it was held
thus : (SCC OnLine All para 46)
“46. We are of the view that the case of Indra Deo v. Ram
Pyari [Indra Deo v. Ram Pyari, 1982 SCC OnLine All 334 :
(1982) 8 ALR 517] , has been correctly decided and the said
decision requires no consideration, while the Division Bench
case, Ajodhya Prasad v. Gangotri Prasad [Ajodhya
Prasad v. Gangotri Prasad, 1980 SCC OnLine All 551 : 1981
AWC 469] is regarding the jurisdiction of consolidation
authorities, but so far as it holds that suit in respect of void
document will lie in the Revenue Court it does not lay down a
good law. Suit or action for cancellation of void document will
generally lie in the civil court and a party cannot be deprived of
his right getting this relief permissible under law except when a
declaration of right or status of a tenure-holder is necessarily
needed in which event relief for cancellation will be surplusage
and redundant. A recorded tenure-holder having prima facie
title in his favour can hardly be directed to approach the
Revenue Court in respect of seeking relief for cancellation of a
27void document which made him to approach the court of law
and in such case he can also claim ancillary relief even though
the same can be granted by the Revenue Court.”
8. This Court in Shri Ram v. Addl. District Judge [Shri Ram v. Addl.
District Judge, (2001) 3 SCC 24] , considered the question relating to
maintainability of a suit by a recorded tenure-holder in possession
for cancellation of the sale deed in favour of the respondents
executed by some imposters. After noticing the aforesaid judgment of
the Full Bench of the Allahabad High Court, this Court held that
where recorded tenure-holder, having a prima facie title and in
possession files suit in the civil court for cancellation of sale deed
having been obtained on the ground of fraud or impersonation, it
cannot be directed to file a suit for declaration in the Revenue Court,
reason being that in such a case, prima facie, the title of the recorded
tenure-holder is not under cloud. He does not require declaration of
his title to the land. However, if the plaintiff is required to seek a
declaration of title, he has to approach the Revenue Court.
9. In the instant case, since the plaintiff claims title under sale deeds
of 1998 executed by the first defendant, it need not be forced to seek
a declaration of its title. Therefore, the plaintiff had filed a suit for
cancellation of the subsequent sale deed executed by the first
defendant in favour of the second defendant. Hence, there is no bar
under Section 331 of the Act for the plaintiff to approach the civil
court and the suit filed by it was maintainable.”
45. Upon appreciation of the decisions, this court holds that although
submissions have been made that IISCO did not have the competence to
enter into the lease agreement with the petitioners, the deed of lease being a
registered document carries with it a presumption of correctness and thus,
must be avoided by the respondents before a proper forum. Such principle
has also been explicitly laid down by the Hon’ble Apex Court in Prem Singh
(supra). It is the specific contention of the petitioners that even after the
amalgamation of IISCO with SAIL, the expression ISP SAIL was often used in
many official documents to denote SAIL’s units. The execution of the deed
by IISCO (ISP SAIL) was in accordance with the custom prevailing in the
units of erstwhile IISCO. The IISCO Unit at Kulti was later renamed as SAIL
Growth Works Kulti and in the lease deed, Rajeev Kumar had signed as
General Manager, Indian Iron and Steel Company Kulti Works (SAIL) SGW.
28
46. From the eviction notice itself, the seal/rubber-stamp and the
designation of the Estate Officer appears as hereunder:-
47. From the caveat filed before the civil court, the seal/rubber-stamp and
the designation of the Deputy Manager(Law), SAIL-ISP, who filed the same,
appears as hereunder:-
48. Thus, the contention of the petitioners that the unit of SGW, Kulti,
although merged with SAIL, continued to use the name SAIL ISP or SAIL-
IISCO in their official stamp and seal as also in the designations of the
authorities, in course of official communication, cannot be treated as
unfounded. The contrary will have to be proved by leading evidence.
49. There also appears to be a complaint before the police authorities by
one Subasish Sengupta, Chief General Manager, SAIL Growth Works, Kulti
against the Executive Director Rajeev Kumar, Krishna Kumar Tiwari the
29
petitioner No.2 under Sections 420, 406, 467, 468, 471 and 120B of the
Indian Penal Code. Thus, the issue of forgery, fraud, mis-representation etc.
are part of the criminal investigation, also. In order to prove that the
documents were forged, unauthorized and a product of fraud, detailed
evidence would be required to be adduced and appreciated by the court. The
civil court would be the proper forum for such adjudication.
50. The petitioners have also relied upon a letter dated July 21, 2012
which indicates that Rajeev Kumar as the Senior Manager (Personnel) Kulti
Works was nominated as the company’s representative to execute the lease
agreement. Although, the respondents have raised crucial issues with regard
to lack of competence of the lessor, execution of lease by an unauthorized
person, absence of board’s resolution, such issues alone, cannot be
sufficient reasons for the writ court to hold that the deed of lease had not
been validly executed and the Estate Officer would retain jurisdiction under
the said Act.
51. In the decision of Board of Trustees for the Port of Kolkta (supra)
the question of an alternative bona fide claim of possession and user on the
basis of a registered lease deed had not been raised. The simple question
before the Division Bench was whether the lease could be determined by the
statutory body on the ground of sub-letting (which is violation of the terms
of the lease) and whether the Estate Officer could proceed under Section 4 of
the said Act, upon determination of such lease by the statutory body.
52. The writ petition is, accordingly, allowed. The notice issued under the
said Act of 1971, by the Estate Officer and proceedings under the said Act,
are set aside.
30
53. There shall be no order as to costs.
54. Parties are to act on the basis of the server copy of this judgment.
(Shampa Sarkar, J.)