S. Banerjee, J.@mdashThe petitioner does not go as far as to question the vires of section 147 of the Railways Act, 1989; but urges that in the procedure thereunder not recognising due process, the provision cannot be resorted to for the purpose of removing any person from a railway property if such person has lawfully entered thereupon and has merely refused to leave therefrom upon the expiry of the licence. The petitioner contends that in section 147 of the Act not expressly providing for any force to be used against a lawful entrant into a railway property who refuses to leave after the expiry of the licence, the railways have to resort to the general law of the land or any special law, if applicable, to have the licencee evicted from the railway premises. Since a purely legal issue has been raised by the petitioner, the facts are not of much relevance except to establish that the legal issue arises on the facts; and, may be, for the purpose of assessing costs.
2. The petitioner or the petitioner''s predecessors-in-interest have been operating as fruit vendors for so long at the Howrah station main complex that the petitioner has been embarrassed to indicate the exact date of the original licence in the petition. The business appears to have been in the family since 1925 and the petitioner''s father made merry at the railways'' expense following a demand for increased licence fees with retrospective effect, by challenging the demand and warding off dispossession by obtaining an interim order on a petition carried to this Court under Article 226 of the Constitution in the year 1983. The writ petition, C.O. No. 10740(W) of 1983, was dismissed for default and the petitioner therein dispossessed from the railway property; but only temporarily. An application for restoration of the writ petition was allowed by recalling the order of dismissal for default. Much later, such petition was disposed of by an order of February 27, 2003 which interpreted the order recalling the order of dismissal for default to imply that the protection against dispossession that the petitioner enjoyed revived upon the writ petition being restored and the protection had to be regarded as being kept in abeyance during the period when the writ petition remained dismissed for default. The order allowing the writ petition of the year 1983 set aside the retrospective claim of enhanced licence fees and permitted the petitioner to pay the enhanced licence fees from the date of the letter of enhancement in instalments over a period of five years. The order also provided for the restoration of the petitioner''s possession and even permitted the petitioner to make a representation for reduction of the enhanced licence fees.
3. The petitioner claims to have paid the arrears in accordance with the order.
4. The railways preferred an appeal from the order dated February 27, 2003 but did not take any steps to have it heard till it was taken up on July 11, 2013. The appeal was disposed of with the following observation in the operative part of the order:
...In case any other dues have not been paid, obviously, Railways are at liberty to recover the same from the respondents. Obviously, once contract has not been renewed, it is also open, as submitted by the learned Counsel, to evict the petitioner in accordance with law. The appeal is dismissed. No costs.
5. On August 7, 2013 the railways wrote to the petitioning vending contractor that in view of the appellate order, the "Railways are at liberty to recover the accrued Licence Fee from you and evict you as the licence has not been renewed." It is the petitioner''s case that the notice was received on August 8, 2013, a day before a long weekend including the Id-ul-Fitre, and taking advantage of the petitioner''s inability to approach any authority at such stage, the railways forcibly removed the petitioner''s articles and evicted the petitioner from the railway property during the weekend.
6. The petitioner says that the law of the land does not permit any person to evict another without due authority of law. The petitioner asserts that the State as a model lessor or licensor cannot take the law into its own hands and evict a person without following the due process of law. According to the petitioner, in the absence of any other applicable law, the railways ought to have invoked the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and afforded the petitioner the opportunity to participate in the summary adjudication thereunder before seeking to physically remove the petitioner from the railway property. The petitioner maintains that unless there is a specific provision permitting the removal or eviction of a person by force under any law, the railways as the State cannot deprive a person of the right to remain in occupation of any property that he has lawfully entered upon without resorting to the procedure established by law. At any rate, the petitioner argues, due process and the rule of law that governs State action under the Constitution commands a fair and reasonable procedure which comports with civilised norms like natural justice to be followed rather than primitive procedural barbarity or legislated normative mockery. The petitioner emphasises on the essentials of due process: a reasonable notice; a fair opportunity of being heard; the right to approach an impartial tribunal; and, an orderly course of procedure. The petitioner alludes to Article 300A of the Constitution and stresses on the expression "save by authority of law" appearing therein and elevates the perceived depravation of the petitioner''s livelihood to a breach of the right to life under Article 21 of the Constitution by referring to the cognate expression of "procedure established by law" recognised therein.
7. The petitioner asserts that before the State uses any force to remove a person from a State property, it has to be fair and afford the person a chance to approach an appropriate forum to contest the threat of eviction; that the State may forcibly evict a person from any State or public property only after the expiry of a reasonable time to have the threat of eviction tested. The petitioner refers to section 5 of the 1971 Act and the specific use of the word "force" in sub-section (2) thereof. The petitioner says that the eviction by force as recognised in section 5(2) of the 1971 Act is upon the culmination of a process of adjudication to assess whether the threatened eviction is lawful and warranted. The petitioner places section 13 of the West Bengal Government Premises (Regulation of Occupancy) Act, 1984 and submits that, again, it is a culmination of a process where the person likely to be affected by the eviction has a chance to present his version and resist the eviction on cogent legal grounds. The petitioner says that the petitioner has been evicted by the ipse dixit of the notice of eviction rather than by any authority of law.
8. The petitioner refers to a judgment reported at
20. In the absence of specific statutory provision can a person, on the ground of public interest, be evicted by force by the State or its executive officers without following due course of law? In view of the ratio laid down in
9. It is evident that the Supreme Court perceived the action taken by the State in that case to not be backed by any law. In the case of Bishan Das referred to in the judgment of Vishnunarayan & Associates (P) Ltd. the State had sought to dispossess a person who was in possession of certain buildings constructed upon a government land and running a dharamsala thereat. The Supreme Court found that there was no specific law that had been cited by the State in that case to evict the occupant. The petition under Article 32 of the Constitution was allowed with the following observation at paragraph 14 of the report which is relevant in the present context:
14. Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property....
10. In the judgment reported at
11. The petitioner has also placed a Single Bench judgment reported at (2002) 2 CHN 473 (S.K. Chatterjee & Sons v. Union of India) in the context of the railways taking forcible possession of a tea stall upon the failure of the licencee to pay the licence fees. It was observed in such judgment that until an eviction order was passed against the licencee under the 1971 Act, the licencee was entitled to remain in possession of the railway property. The judgment in S.K. Chatterjee & Sons has recently been held to be per incuriam by a Single Bench of this Court in an unreported judgment rendered on July 10, 2012 in W.P. No. 12581(W) of 2012 on the ground that it failed to notice section 147 of the Railways Act.
12. None of the judgments cited by the petitioner would be of any assistance in the present case if section 147 of the Railways Act is found to be applicable to the facts. In Vishnunarayan & Associates (P) Ltd. the State could not support the action of eviction on any special law. In Bishan Das and Maharaja Dharmander Prasad Singh the State had attempted to use force to evict the occupants without resorting to any statutory provision for such purpose. In Krishna Ram Mahale the general law of the land was found to be applicable and not any special law. The issue that arises in the present case is whether section 147 of the Railways Act is the special law that would authorise the railways to forcibly evict a licencee who has overstayed his welcome from a railway property.
13. The railways'' action against the petitioner can be justified at several levels. To begin with, and notwithstanding the wide import of Article 21 of the Constitution as judicially recognised, even if the right to livelihood is accepted to occupy the same exalted status as the right to life--which it ought not to be--there cannot be any absolute right to livelihood as even such right would be subject to procedure established by law; where the law has to be a valid law as legislated by the Parliament or the applicable State legislature. Section 147 of the Railways Act may be such law if it is found to be applicable.
14. The reference to Article 300A of the Constitution may be inapposite; but even if the larger sense in which the petitioner invokes such provision is appreciated, it cannot be lost sight of that such Article is concerned with the property of the person rather than the property of the State that a person has a licence to occupy. Even if such aspect of the matter is overlooked, the expression, "save by authority of law", again, qualifies the right thereunder and subjects it to the operation of legislation as made by the Parliament or the relevant State legislature. Section 147 of the Railways Act, once again, may be regarded as such law within the meaning of the expression, "save by authority of law", if it is otherwise found to be applicable.
15. Section 147 of the Railways Act provides as follows:
147. Trespass and refusal to desist from trespass. (1) If any person enters upon or into any part of a railway without lawful authority, or having lawfully entered upon or into such part misuses such property or refuses to leave, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both:
Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such punishment shall not be less than a fine of five hundred rupees.
(2) Any person referred to in sub-section (1) may be removed from the railway by any railway servant or by any other person whom such railway servant may call to his aid.
16. The provision refers not only to eviction from railway properties of persons entering upon any railway property without lawful authority, but also to removal of persons who refuse to leave the property having lawfully entered thereupon. For the purpose of the present matter, the two sub-sections can be telescoped to recognise such part of the provision as is relevant here:
If any person...having lawfully entered upon... any part of a railway... misuses such property or refuses to leave...(such) person...may be removed from the railway by any railway servant or by any other person whom such railway servant may call to his aid.
17. Section 2(31) of the Act defines "railway" to mean, inter alia, any portion of a railway and includes all lands within the fences or other boundary marks indicating the limits of the land appurtenant to a railway. Thus, section 147 of the Act can be perceived to be the law as enacted by the Parliament for a person to be evicted from any railway property. The question that arises as to whether a person who has entered upon a railway property as a licencee but who continues in occupation beyond the tenure of the licence or the termination thereof can be evicted therefrom on the strength of such provision. The ancillary issue is as to whether the State or any instrumentality of the State may forcibly evict a licencee whose tenure has expired by referring to a provision of law though the provision may not expressly recognise the use of force for the purpose of eviction.
18. There is no absolute rule that the State may not evict a person from government premises without obtaining a decree therefore. The general law that requires the lessor or an owner of a property to evict even a trespasser therefrom only in accordance with law, requires a decree to be obtained for the purpose of eviction; but if a special law is applicable, such provision may be resorted to. Such special law may be the Act of 1971 in respect of public premises covered thereby or State laws in respect of the premises specified thereunder, like the 1976 Act in this State. As long as there is a valid law that permits eviction of a person from a property, the general law would no longer apply to the case. The validity of section 147 is not questioned by the petitioner, its efficacy and applicability in the present case is only doubted.
19. There does not appear to be any charter to read section 147 of the Railways Act to imply that a railway servant would merely request a licencee in occupation of the railway property after the expiry of the tenure with folded hands to remove himself from the railway property; and, be powerless if such person politely declined the invitation. Section 147 of the Act permits eviction by force and merely because the magic word "force" is not used therein cannot be a ground to emasculate the provision.
20. This petitioner''s case typifies the manner in which railway properties have been occupied, sometimes with unhealthy dollops of judicial over-generosity. There may still be several unreasoned orders of this Court subsisting in favour of similarly placed licencees that have thwarted the railways from generating revenue and financing the services that it is mandated to deliver.
21. Just as the provisions in the CPC pertaining to the execution of a eviction decree do not expressly refer to the word "force", section 147(2) of the Railways Act also does not do so. But just as it is open to an executing Court to direct the bailiff ''to dispossess the judgment-debtor with police assistance, the second limb of section 147(2) of the Railways Act permits the use of reasonable force for any railway property to be relieved of an unwanted occupant, including a licencee clinging on to possession after the expiry of the tenure.
22. Any action taken by the State to evict a person from any property is justiciable. The right to evict a person who has lawfully entered upon a railway property arises only upon such person misusing the property or refusing to leave therefrom. The refusal to leave would arise if the person has no right to remain on the railway property. It is possible, in a given case, for a person evicted from any railway property upon the railways resorting to section 147 of the Railways Act to assert and establish that there was no obligation on such person''s part to leave the railway property, If it is found in the appropriate action that a lawful entrant into railway property had been unlawfully removed therefrom, the appropriate forum would have due authority to restore the possession of such person. In the present case, there is no justification which is proffered for the petitioner to remain on the railway property after the expiry of the lease.
23. Since there is no illegality or arbitrariness found in the railways resorting to section 147 of the Act to evict the petitioner from the railway property, W.P. No. 25015(W) of 2013 is dismissed. The petitioner will pay costs assessed at Rs. 20,000 to the railways which the railways will be entitled to recover as it would the licencee fees due from the petitioner, notwithstanding the railways not being called upon in course of the final hearing. Urgent certified website copies of this judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
