Holding

Section 138 is applicable to retired railway employees and the former employee is estopped by Section 116 of the Evidence Act from denying the railway administration's title, allowing recovery of possession.

Summary

Mahesh Kumar Verma, a former railway employee, was allotted official accommodation while in service but failed to vacate after his retirement in 1984. The railway administration invoked Section 138 of the Indian Railways Act, 1890 to recover possession, but the Calcutta High Court set aside the order, holding that the railway had not proved ownership of the property. On appeal, the Supreme Court held that Section 138 applies to retired employees and that, having been given possession as a licensee, the former employee is estopped under Section 116 of the Indian Evidence Act from denying the railway administration's title. Consequently, the railway administration need not prove a lease or ownership document to invoke the summary procedure. The Court allowed the appeal, quashed the High Court judgment, and restored the trial court order directing the respondent to surrender vacant possession within 15 days.

Issues considered

Whether Section 138 of the Indian Railways Act, 1890 can be invoked to recover possession of premises from a retired railway employee.
Whether the railway administration must prove that the premises "belong to the railway administration" before invoking Section 138.
Whether the former employee, as a licensee, is estopped under Section 116 of the Indian Evidence Act from challenging the railway's title.

Legislation cited

Indian Evidence Act, 1872s. 116
Indian Railways Act, 1890s. 138

Subjects

Indian Railways ActSection 138retirementpossession recoveryestoppelSection 116official accommodationsummary procedureeviction

Judgment

SRI S.K. SARMA A
v.
MAHESH KUMAR VERMA

SEPTEMBER 17, 2002

[M.B. SHAH AND D.M. DHARMADHIKARI, JJ.] B

Indian Railways Act, 1890;

Section 138: Recovery of Possession of the premises from employee
upon retirement-Challenged on the ground that the premises does not C
belong to Railway Administration-Held, admittedly the occupant-employee
was given possession of the premises when he was a Railway employee-
Hence he is estoppedfrom questioning the right ofthe Railway Administration
over the premises-Vacant possession of the property to be handed over to
Railway Administration-Direction issued-Indian Evidence Act, 1872; D
Section I 16.

Respondent was provided official accommodation as per his entitlement
when he was in service in Railways. He did not vacate the premises upon his
retirement from service as railway administration failed to prove lease
document of the property in its favour. Railway administration tiled a complaint E
under Section 138 of the Railway Act for recovery of possession of the
premises in question. Trial Court allowed the application. Respondent-
employee tiled a Criminal Revision Petition which was allowed by the High
Court. Hence this appeal.

It was contended for the appellant that High Court materially erred in F
not applying provisions of Section 116 of the Evidence Act, and that since the
property was handed over to its employee as licensee, as per service conditions,
ownership was not required to be proved by the Railway administration.

On behalf of the respondent, it was submitted that the appellant must
establish subsisting tenancy; and that since Section 138 does not include the G
expression "retirement" and it is not applicable.

Allowing the appeal, the Court

HELD: I. The object of Section 138 of the Indian Railways Act is to H
439
440 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A provide speedy summary procedure for taking back the railway property
detained by the railway servant or his legal representative. Properties include
not only dwelling house, office or other building but also books, papers and
any other matters. This would mean that the Section embraces in its sphere
all unlawful detention of any railway property by the railway servant Further,
B from the ingredient, it is clear that a railway servant who is discharged or
suspended from his office, dies, absconds or absents himself would include a
railway employee who is removed, retires or dismissed from service. It would
certainly include employees who retire at the age of superannuation as in the
present case. [443-H; 444-A, Bl

C Union of India and Anr. v. B.N. Prasad, [19781 2 SCC 462 and S.L.
Kapoor v. Emperor, AIR (1937) Lahore 547, relied on.

Divisional Superintendent, Eastern Railway, Asanso/e, v. Suresh
Chandra Chakravarty, AIR 1957 Cal. 97 and Arjun Babloo Tukaral v. G. V.
Javalkar, AIR 1981 Born. 72, approved.
D 2. Once it is admitted that respondent was given possession of the
premises in question, as he was entitled for the same, he could not be permitted
to deny the title of the Railway administration. Admittedly, respondent was
inducted because he was in railway service. Therefore, he is estopped from
challenging the title of the appellant over the premises in question. Such
E estoppel continues to operate so long as licensee or sub-tenant has not openly
restored possession by surrender to such person. This rule of estoppel would
cease to operate only after such licensee or sub-tenant has been evicted.
Respondent cannot be permitted to contend that property was not belonging
to the Railway administration. [445-A, E; 446-F)

F S. Thangappan v. P. Padmavathy, 11999[ 7 SCC 474 and Vashu Deo v.
Balkishan, 12002) 2 SCC 50, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 960
of2002.

·G From the Judgment and Order dated I0.10.200 I of the Kolkata High
Court in Crl. R. No. 1722 of 1986.

Mukul Rohatgi, Additional Solcitor General, Tara Chandra Sharma, Mrs.
Anil Ktiyar and R.N. Poddar, for the Appellant.

H S.K. Dholakia. Pradip Tarafdar, Parthapratim Chaudhuri and K.S. Rana,
SRI S.K. SARMA v. MAHESH KUMAR VERMA [M.B. SHAH, J.] 441

for the Respondent. A
The Judgment of the Court was delivered by

SHAH, J. Leave granted.

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

The High Court of Calcutta by judgment and order dated I 0.10.200 I C
arrived at the conclusion that railway administration ought to have proved
that the premises belonged to it, before invoking Section 138 of the Railways
Act and as the lease agreement of the premises between railway administration
and its owner is not proved, Section 138 of the Railways Act could not be
invoked for evicting the respondent. That judgment is challenged by filing D
this appeal.

Short facts of the case are undisputedly, respondent Mahesh Kumar
Verma was a railway employee, posted as Chief Public Relations Officer
(CPRO), and as he was entitled to official accommodation, on 17 .1.1967, he
was allotted premises at 85-B, Sarat Bose Road, Calcutta, which is about 2800 E
sq. ft. with a lawn of 2500 sq. ft. in front apart from a garage. The lessor of
the property to the Railway Department is one Mr. N.B. Ganguly. Despite his
retirement on 30th June, 1984, he has not vacated the premises in question.

Railway administration filed a complaint under Section 138 of the Railways
Act bearing Crl. Misc. Case No.36 of 1985 before Chief Judicial Magistrate, F
- South 24-Parganas, Alipore (West Bengal) seeking police help for recovery
of possession. On 22nd November, 1986, the learned CJM allowed the
application and directed the police to enter the premises and evict the
respondent in case respondent fails to deliver its possession to the railway
administration within two weeks from the date of order. He arrived at the
conclusion that in view of the evidence of PWJ and PW2, the premises in G
question was allotted to the respondent on 17. 1.1967 as official residence
while he was holding the post of CPRO and this fact was not disputed by
the respondent. Learned CJM further held that under Section 116 of the
Indian Evidence Act, 1872 the respondent was estopped from questioning the
right, title or interest of the railway administration as landlord/licensor. H
442 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

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

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

D As against this, Mr. Dholakia, learned senior counsel for the respondent
submitted that the appellant has failed to prove that the property belonged
to it and, therefore, the High Court has rightly dismissed the application filed
under Section 138 of the Act. It is contended that the railway administration
has no proof that the property belonged to them and, therefore, they seek to
rely upon Section 116 of the Evidence Act. It is also contended that the
E railway administration must establish subsisting tenancy and as no attempt
has been made by the railway administration to prove the same, the application
was rightly dismissed. It is additionally sought to be contended in written
submission, even though not argued at the time of hearing, that Section 138
of the Act does not include the expression 'retirement' and, therefore, also
p the power under Section 138 to summarily evict cannot be exercised.

For appreciating the contentions raised by the learned counsel for the
parties, we would refer to Section 138 of the Railways Act which reads thus:-

"138. Procedure for summary delivery to railway administration of
G property detained by a railway servant-If a railway servant is
discharged or suspended from his office, or dies, absconds or absents
himself, and he or his wife or widow or, any of his family or
representatives, refuses or neglects, after notice in writing for that
purpose, to deliver up to the railway administration, or to a person
appointed by the railway administration in this behalf, any station,
H dwelling-house, office or other building with its appurtenances, or
SRI S.K. SARMA v. MAHESH KUMAR VERMA [M.B. SHAH, J.] 443

any books, papers or other matters, belonging to the railway A
administration and in the possession or custody of such railway
servant at the occurrence of any such event as aforesaid, any
Presidency Magistrate or Magistrate of the first class may, on
application made by or on behalf of the railway administration, order
any police officer, with proper assistance, to enter upon the building B
and remove any person found therein and take possession thereof, or
to take possession of the books, papers or other matters, and to
deliver the same to the railway administration or a person appointed
by the railway administration in that behalf."

From the aforesaid section, following ingredients can be culled out: - C

(I) It prescribes summary procedure for delivery to railway
administration of property detained by railway servant.
(2) a railway servant is discharged or suspended from his office,
dies, absconds or absents himself; and
D
(3) he or his wife or widow or, any of his family representing him
refuses or neglects;
(4) after notice in writing for that purpose;
(5) to deliver up to the railway administration.
(6) any station dwelling-house, office or other building with its E
appurtenances;
(7) or any books, papers or any other matters;
(8) belonging to the railway administration and in the possession or
custody of such railway servant at the occurrence of such event p
as aforesaid;
(9) the Magistrate on application may by and on behalf of railway
department order any police officer with proper assistance to
enter upon the building and remove any person from therein and
take possession thereof and to deliver the same to the railway G
administration.

The object of the aforesaid Section is to provide speedy summary
procedure for taking back the railway property detained by the railway servant
or his legal representative. Properties include not only dwelling house, office
or other building but also books, papers and any other matters. This would H
444 SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A mean that the Section embraces in its sphere all unlawful detention of any
railway property by the railway servant. Further, from the aforequoted second
ingredient; it is clear that a railway servant who is discharged or suspended
from his office, dies, absconds or absents himself would include a railway
.l
employee who is removed, retires or dismissed from service. In context, the
B words 'discharge, dies, absconds or abstains himself would certainly include
employees who retire at the age of superannuation. The word 'discharge' •
used in context is of widest amplitude and would include cessation of '1
'
relationship of employer 11hd employee, may be by retirement, resignation,
dismissal or removal. This Court in Union of India and Anr. v. B.N. Prasad,
[1978] 2 SCC 462 considered Section 138 and held that a close perusal of the
C section clearly reveals that the provision has widest amplitude and takes
within its fold not only a railway servant but even a contractor who is
engaged for performing services to the railway, and the termination of his
contract by the Railway amounts to his discharge, as mentioned in Section
138. The Court also observed that the said provision is in public interest and
must be construed liberally, broadly and meaningfully so as to advance the
D object sought to be achieved by the Railway Act. The Court also referred to
the decision of the Lahore High Court in S.L. Kapoor v. Emperor, AIR (1937)
Lahore 547 which was earlier approved by this Court wherein the Court has
made the following observations: -

E "........The termination of his service by the railway under Clause 21 of
the agreement amounts to his discharge within the meaning of Section
138 of the Act, and he is therefore liable to dispossession of the
premises which he was occupying as a servant of the railway."

The High Court of Calcutta in Divisional Superintendent, Eastern
F Railway, Asansole v. Suresh Chandra Chakravarty, AIR (1957) Cal. 97 in
context of Section 138 has rightly held that the word 'discharge' is general
enough to include employee who is retired at the age of superannuation.
Similarly, the Bombay High Court in Arjun Babloo Tukaral v. G. V. Javalkar
AIR (1981) Born. 72 after elaborate discussion arrived at the conclusion that
G considering the intention of the Legislature and in the light of the general
purpose of the Act, the word 'discharge' embraces all types of termination
of contract of employment and the word 'discharge' used in section 138
would include retirement at the age of superannuation.

Further, the contention of the learned senior counsel for the respondeht
H that the railway administration has to prove that the property in question was
SRI S.K. SARMA v. MAHESH KUMAR VERMA [M.B. SHAH, J.] 445

belonging to it before invoking Section 138 is totally misc:onceived because A
once it is admitted that respondent was given possession of the premises in
question by order dated I 7. I. I967 as he was entitled for the same while
working as CPRO of the Department, he could not be permitted to deny the
title of the railway administration. Admittedly, respondent was inducted
because he was in railway service. Now, he is estopped from challenging the B
title of the appellant over the premises in question. For this purpose, we
would refer to Section I 16 of the Evidence Act which reads thus

"116. Estoppel of tenant; and of licensee of person in possession.-
No tenant of immovable property or person claiming through such
tenant, shall, during the continuance of the tenancy, be permitted to C
deny that the landlord of such tenant had, at the beginning of the
tenancy, a title to such immovable property; and no person who came
upon any immovable property by the license of the person in
possession thereof, shall be permitted to deny that such person had
a title to such possession at the time when such license was given."
D
Second part of the aforesaid section clearly provides that no person
who came upon any immovable property by the license of the person in
possession thereof shall be permitted to deny the title to such person to such
possession of the property. He cannot deny the same during the pendency
of such license or sub-lease. Such estoppel continues to operate so long as E
licensee or sub-tenant has not openly restored possession by surrender to
such person. This rule of estoppel would cease to operate only after such
licensee or sub-tenant has been evicted. This position does not require
reference to many judgments. However, we would refer to the decision in S.
Thangappan v. P. Padmavathy, (1999] 7 SCC 474 in which the appellant tenant
who was running an automobile workshop since I962 disputed the title of F
respondent-landlady on the ground that certain Devasthanam was the actual
landlord. This Court held that Section I I 6 of the Evidence Act, 1872 puts an
embargo on a tenant of an immovable property, during the continuance of his
tenancy to deny the title of his landlord at the beginning of his tenancy. The
significant words under it are 'at the beginning the tenancy". So a tenant G
once inducted as a tenant by a landlord, later cannot deny his landlord's title.
However defective the title of such landlord may be, such tenant cannot deny
his title.

Fwther in Vashu Deo v. Balkishan, (2002] 2 SCC 50 the question that
came up for consideration before the Court was whether a sub-tenant could H
446 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A have directly attorned to the owner Trust bypassing the tenant? The Court
while rejecting such plea of sub-tenant. considered the provision of Section
116 of the Evidence Act and held thus:-
[
" .......... Section 116 of the Evidence Act, which codifies the common
law rule of estoppel between landlord and tenant, provides that no
B tenant of immovable property or person claiming through such tenant,
shall, during the continuance of the tenancy, be permitted to deny
that the landlord of such tenant had at t~e beginning of the tenancy,
a title to such immovable property. The rule of estoppel so enacted
has three main features: (i) the tenant is estopped from disputing the
c title of his landlord over the tenancy premises at the beginning of the
tenancy; (ii) such estoppel continues to operate so long as the tenancy
continues and unless the tenant has surrendered possession to the
landlord; and (iii) Section 116 of the Evidence Act is not the whole
law of estoppel between the landlord and tenant. The principles
emerging from Section 116 can be extended in their application and
D also suitably adapted to suit the requirement of an individual case.
Rule of estoppel which governs an owner of an immovable property
and his tenant would also mutatis mutandis govern a tenant and his
sub-tenant in their relationship inter se. As held by the Privy Council
in Currimbhoy & Co. Ltd. v. L.A. Creet, AIR (1933) PC 29 and Bi/as
Kunwar v. Desraj Ranjit Singh, AIR (1915) PC 96 the estoppel
E
continues to operate so long as the tenant has not openly restored
possession by surrender to his landlord. It follows that the rule of
estoppel ceases to have applicability once the tenant has been evicted.
His obligation to restore possession to his landlord is fulfilled either
by actually fulfilling the obligation or by proving his landlord's title
F having been extinguished by his landlord's eviction by a paramount ·
title-holder. .."

In this view of the matter, respondent cannot be permitted to contend
that property was not· belonging to the railway administration. Whether the
railway administration is owner, mortgagee, lessee or licensee is not required
G to be decided in such proceedings at the instances of sub-lessee or licensee
ofrailway administration.

Lastly, the learned ASG appearing for the appellant submitted that on
one or other ground, respondent - ex-employee after his retirement had
H unauthorisedly retained the possession of the property belonging to the
SRI S.K. SARMA v. MAHESH KUMAR VERMA [M.B. SHAH, J.) 447

railway administration and, therefore, he should be directed to pay mesne A
profit from the date of his retirement till possession of the suit property is
handed over to the railway administration. In our view, this question cannot
be decided in these proceedings because Section 138 does not empower the
Court to pass such order nor such question was raised before the trial court.
It is open to the appellant to resort to other alternative remedy available to B
it un.der the law.

In the result, the appeal is allowed and the judgment and order passed
by the High Court is quashed and set aside. The order passed by the learned
CJM dated 22. I I. I986 directing the respondent to hand over vacant possession
of the premises in question is restored. The respondent is given 15 days time C
from today to hand over possession to the railway administration. On his
failure, the OIC Bhowanipore, P.S. shall, with proper assistance of the police
force, enter upon the premises in question and remove the respondent and
other persons from there and take possession thereof and shall deliver the
same to the railway administration or a person duly appointed by the railway
administration in this behalf. D
S.K.S. Appeals allowed.