Rakesh Sharma, J.@mdashThe above mentioned second appeals being connected matters have been heard together and are being disposed of by a common judgment and order.
2. Second Appeals No. 262 and 263 and 264 of 1998 involving common questions of law were ordered to be connected and listed for admission alongwith Second Appeal No. 257 of 1998, Chandra Kishore v. Union of India and Anr. vide following order of this Court passed on 8.6.1998:
The learned Counsel appearing on behalf of railways informs that the Petitioner can only be thrown out of possession in accordance with law. According to him the law is that after the expiry of period of licence the Petitioner can be thrown out by the help of police. He failed to show the law wherein it has been provided that the Petitioner can be thrown out by the help of the police. However, he has relied upon a decision of this Hon''ble Court rendered in Writ Petition No. 25682 of 1992.
Shri N.K. Seth, advocate appearing on behalf of Appellants has placed reliance upon a judgment in
It is well settled law in this country that where a person is in possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.
The Apex Court has relied upon the various judgments as well. The judgment cited by the Hon''ble Supreme Court has force of law under Article 141 of the Constitution of India. Shri N.K. Seth further informs that one of the Appeal No. 257 of 1998 has already been admitted and it has been ordered that the parties to maintain status quo.
Accordingly connect this appeal with Second Appeal No. 257 of 1998 and list for admission in the month of August, 1998. Till then the parties are directed to maintain status quo.
3. All the three appeals, namely, Second Appeals No. 262, 263 and 264 of 1998, were filed raising identical and similar questions of law as were raised in Second Appeal No. 257 of 1998, which was already admitted by this Court on 29.5.1998 by passing the following order:
Sri R.D. Agarwal has accepted notice on behalf of the Respondents, hence notices need not go. Meanwhile the parties are directed to maintain status quo as it exists today.
4. The question of law framed at serial No. 1, on which Second Appeal No. 257 of 1998 was admitted for adjudication vide order dated 29.5.1998, is as under:
Whether in view of the settled law it could be held that the Appellant is not a ''tenant'' but a ''licensee'' in respect of a shop?
5. The same question of law, rather the only question of law as indicated above, is involved in all the appeals, which are before this Court for adjudication.
6. Another order was passed by this Court on 18.9.2001 in Second Appeal No. 264 of 1998, issuing certain directions to the Appellants, as quoted below:
Summon the lower court''s record. In the meantime, it is provided that the Appellant may deposit arrears of amount due as the alleged licence fee/rent in three equal monthly instalments. The first instalment shall be deposited by 10th October 2001 and the rest two instalments shall be deposited within two months each from the earlier instalment with the Divisional Railway Manager, Northern Railway.
7. The order for maintaining status quo is still continuing and learned standing counsel appearing for Northern Railway, Respondents has moved several applications for hearing of the case and sought vacation of the interim order.
8. Both the Courts below have recorded concurrent findings of facts and dismissed the suit and the appeals of the Plaintiff-Appellants holding that they were mere licensees of Northern Railway having their kiosks, shacks opposite Charbagh Railway Station, Lucknow. The licences were granted for specific period and after the stipulated period coming to an end the Plaintiff-Appellants should have vacated the kiosks.
9. It emerges from record that the Appellants (in some cases, their fathers) had been given licences to sell tea, coffeee, puris, chhola and other edibles from the kiosks, shacks situate in railway compound in front of Charbagh Railway Station. These licences were granted on 31.8.1998. After expiry of the period of licence, a written notice dated 9.11.1982 was served on the Appellants indicating that their licences were terminated. The Appellants were required to hand over vacant possession of small shops, kiosks in dispute. After service of notices and on expiry of the period indicted therein, the eviction proceedings were initiated against the Appellants by the railway authorities. The Appellants filed various suits seeking mandatory injunction and declaration. The trial court having considered the facts and circumstances of the case as well as the evidence led by the parties and applying the relevant law dismissed their suits. Against the said judgment and decree passed by the trial court, the Appellants preferred appeals before the learned District Judge, Lucknow. After hearing the parties, these appeals too were dismissed by the learned lower appellate court vide its judgment and decree dated 6.4.1998, hence these second appeals.
10. I have heard Sri N. K. Seth, learned Counsel for the Appellants and Sri Anil Srivastava, learned Counsel for the Respondents at length and have also perused the record.
11. Both the Courts below have held that the Appellants were mere licensees. Three years'' period was stipulated in the agreement and the Appellants were required to pay licence fee amounting to Rs. 1,650 for the period of licence. Even after expiry of the period of licence, the Appellants did not pay the licence fee to the Northern Railway and continued to enjoy the possession of the kiosks, shacks and they became unauthorised occupants. It has also come on record that the Appellants have not paid licence fee ; they defaulted in making payment of the same to the Northern Railway and their arrears of licence fee were more than rupees one lac i.e. Rs. 1,32,488 during the course of litigation. On the basis of pleadings of the Appellants in the plaint and their statements made before the Court in cross-examination as also taking into account the oral and documentary evidence of the parties on record, both the Courts below came to the conclusion that the Appellants were mere licencees for a stipulated period of three years which had come to an end in the year 1981. Opportunity of hearing was afforded to them by issuing notices on 9.11.1982. Interestingly, the Appellants have challenged the notices dated 9.11.1982 in their injunction suits. It has been found by the learned courts below that the Northern Railway is the owner of the land in dispute, opposite Charbagh Railway Station Lucknow and the same is railway property. For the convenience of the passengers, the Appellants were allowed to sell edibles like tea, coffee, puri, chhola, etc. from the kiosks, shacks. The Appellants have failed to establish a legal right to continue in possession over the railway property near a busy railway station like Charbagh, which is used by some two lac passengers everyday.
12. The contention of the learned Counsel for the Appellants is that the learned courts below have erred in directing the eviction of the Appellants from the kiosks, shacks, without following due process of law. He has drawn a distinction between licence and lease and reiterated his submission that even if the Appellants are held to be licensees or trespassers, they cannot be evicted from the premises otherwise than due course of law. He has placed reliance on the following decisions in support of his above submissions:
1.
2. Ajab Singh v. Shital Puri 1993 (1) ARC 403: 1993 (2) AWC 678.
3. Shahid Ali and Ors. v. J.S.C.C., Moradabad and Ors. 1997 (2) ARC 459.
4.
5.
6.
7.
8.
9.
10. Midnapur Zamindari Co. Ltd. v. Kunar Naresh Narain Roy and Ors. AIR 1924 PC 144.
11.
13. This Court has also perused the material placed on lower courts'' record. After the stipulated period of licence was over, the Appellants had become trespassers. There is force in the arguments of the learned Counsel for the Northern Railway that under the provisions of Section 63 of the Indian Easements Act, the Appellants did not seek renewal of their licences, nor the same were renewed after June, 1981. With due respect to the authorities cited by the learned Counsel for the Appellants, they are not applicable in the present set of circumstances. All the Appellants were gross trespassers after 30.6.1981 and they have no right to retain possession of the kiosks, shacks over the railway land. The Respondents'' case is covered by the following decisions:
1.
14. Interestingly, here in the present case both the Courts below have decided all the issues against the Appellants holding them as unauthorized occupants in the premises. After the expiry of the period of three years stipulated in the licence (in some cases, it was from 31.8.1978 to 30.8.1981), the Appellants had no right to continue to sell edibles from the shops, kiosks situate over the land of Northern Railway. The Appellants had failed to demonstrate before the Courts below as to whether they had paid licence fee or not. Such unauthorized and illegal occupants cannot be permitted to continue over the public property. The submissions of Sri N. K. Seth, learned Counsel for the Appellants that proceedings should have been initiated under the T.P. Act and that due process of law was not followed, are wholly misconceived.
15. According to Sri N. K. Seth, the Appellants were in lawful possession over the kiosks, shops and they could have been held as tenants as there existed relationship of landlord and tenants between the parties. From a perusal of the material on record, it is evident that the Appellants were mere licensees. They have failed to prove before the trial court, the appellate court and this Court that there existed relationship of landlord and tenant between the parties. A licensee has no legal right to continue in possession over the railway property i.e. kiosks, small shops at railway station. Earlier, the Appellants had admittedly paid licence fee. They have indicated themselves as licensees in the plaint presented before the trial court. Now they cannot be permitted to take a somersault in the High Court and plead that they were lawful tenants. There is nothing in the terms and conditions of the agreement/licence to infer that there was any transfer of interest in regard to the railway property. It has also come on record that the Appellants had violated the terms and conditions of the licence by selling more food items than the ones allowed to be sold from the shops, kiosks. The case laws referred to above, as cited by the Appellants, are of academic interest which deal with distinction between the licence and lease and that even a licensee/ trespasser cannot be evicted otherwise than due course of law. In the present case, both the learned courts below on the basis of oral and documentary evidence on record have held by recording concurrent findings of facts that the Appellants were mere licensees and I do not find any error in these findings. The Appellants had no right to claim continuance in the kiosks, shacks in question beyond the period of licence, which expired in the year 1981. A legal notice was duly served on them to vacate the premises and as such it cannot be said that due course of law has not been followed by the authorities of the Northern Railway. Thus, after a careful scrutiny of the entire evidence and material on record, I hold and affirm the finding of the learned courts below that the Appellants are mere licensees and not tenants and they are liable to be evicted from the property of Northern Railway.
16. Accordingly, the appeals are devoid of merits and the same are dismissed with costs.
17. The Appellants are directed to vacate the kiosks, shacks of Northern Railway immediately after removing their goods, edibles etc. Peaceful possession of the premises shall be handed over by them to the concerned authorities of the Northern Railway immediately. The Appellants shall pay the amount of held-up licence fee and shall also pay fee as prescribed in the licences for the period they have used the railway property. The Appellants, who have not vacated the premises after receiving the notice, shall pay Rs. one lac each to the Respondent Northern Railway for unauthorized and illegal use of the shops, kiosks situate in the railway premises opposite Charbagh Railway Station, Lucknow. This amount shall be deposited within one month with the concerned authority of the Northern Railway and an affidavit to this effect shall be filed in the registry of this Court for the purposes of record. In addition to this, the Appellants shall pay Rs. 15,000 each as costs to the Respondents for dragging them to litigation for about 26 years. This order is being passed in view of the fact that the Appellants have been using Railway property for the last more than 25 years, i.e., from June, 1981 illegally and unauthorisedly. The costs is being awarded in view of the Apex Court''s decision in
18. Before I part with this case, I would like to observe that the attention of this Court has been drawn to a notification dated 4th November 2006 by which a decision has been taken to make the Charbagh Railway Station, Lucknow, which is a heritage Railway station, a word-class railway station. In view of these developments and in public interest, it is expected from the concerned authorities of Northern Railway, North-East Railway and Railway Protection Force that they would make a joint survey of the Charbagh Railway Station as well as other railway stations of Lucknow city and make all necessary endeavours to remove the encroachments over their properties so that the Railway passenger and genuine visitors may beneficially use these railway stations. The illegal encroachments in and around, and opposite these railway stations should be removed. This will enable the railway passengers to have a free, open and convenient ingress and outgress to the railway stations. The unauthorized squatters must be removed from the railway premises opposite railway stations. The open space opposite railway stations must be kept clean of encroachments, visual squalOrs.
19. Sri Anil Srivastava, learned standing counsel for Northern Railway shall send a copy of this judgment and order to the concerned authorities of the railway and the Railway Protection Force for taking necessary appropriate action in the matter in the light of above observations.
