G. B. Patnaik, J.
1. These two writ applications are directed against a common order of the District Judge, who, as the appellate authority under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as 'the Act') dismissed the two appeals, Misc. Appeal No. 90 of 1984 and Misc. Appeal No. 91 of 1984. Misc. Appeal No. 90 of 1984 had been directed against an order of eviction passed under Section 5(1) of the Act and Misc. Appeal No. 91 of 1984 had been directed against an order for damages under Section 7 of the Act for the unauthorised occupation.
2. Plot No. 87 of Cuttack Dock Yard belongs to the South Eastern Railway. Originally the land in question was the land of Bengal Nagpur Railway, a private company. The said company had given the land to the Divisional Forest Office, Angul under an agreement in the year 1943. On 15-8-1943 the company allowed one Bengal Timber Trading Company, the disputed land, for erection of a Saw Mill and for that purpose, the Bengal Timber Trading Company was paying rent to the D.F.C., Angul Division. On 30-9-1946, the D.F.O., Angul left the premises and the Timber Trading Company was permitted to continue over the premises in question. On 20th June, 1948, the Bengal Nagpur Railway issued a licence to the Timber Trading Company for its occupation. The Timber Trading Company sold the Saw Mill and the structures thereon to the petitioner on 28-7-1950. The factum of sale was intimated to the Bengal Nagpur Railway. On 20-10-1951, the Bengal Nagpur Railway intimated the petitioner that they should pay the occupation fee at the rate of Rs. 135/- per month and thereafter at the enhanced rate of Rs. 2,683/-per half year. There had been severalcorrespondence between the petitioner and the said Bengal Nagpur Railway and later on its successor South Eastern Railway. On 6-12-1957, the petitioner was called upon by the South Eastern Railway to deliver vacant possession of plot No. 38 measuring 14,344 sq. ft. as it was urgently required for the use of the Railway but yet the petitioner continued in the premises as a licensee. On 22-3-1980 the petitioner was given the notice to deliver vacant possession of the premises within thirty days from the date of the notice in accordance with the terms of the .agreement between the parties. The petitioner's replied on 21-5-1980 that he was possessing the land under licence since 1949 on regular payment of rent and there was no arrear outstanding and he was averred that he was lessee in respect of the premises and is running the Saw Mill and unless an alternative site is available he will not vacate the land. Thereafter proceeding under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act was initiated by the Estates Officer who issued notice under Section 4(1) of the Act. He issued notice under Section 7(3) of the Act for damages treating the petitioner to be an unauthorised occupant. The eviction proceedings were decided against the petitioner but the petitioner assailed the same in appeal alleging that no adequate opportunity had been given. The appellate authority remanded the matter for redisposal. After remand and after giving due opportunity to the petitioner, both the cases were disposed of by the Estates Officer against the petitioner by a common judgment annexed as Annexure-3 directing eviction of the petitioner and assessing the damage to the tune of Rs. 38,335/-. Against the said judgment of the Estates Officer the petitioner preferred two appeals and both the appeals were disposed of by the common judgment dated 23-5-1988, annexed as Annexure-4, dismissing the same. Therefore the petitioner has approached this Court by filing the two writ applications.
3. Pursuant to the notice issued by the Estates Officer under the Act, the petitioner filed his written statement taking the stand that he is not in unauthorised occupation and, on the other hand, the premises had beenleased out to him for stocking timber and erecting a saw mill. It was also averred in the written statement that the petitioner should be deemed to be continuing as a tenant over the premises in question in accordance with the provisions of the Orissa House Rent Control Act and, therefore, Union of India cannot take any action under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act. It had also been averred that the petitioner has erected pucca structure for the office and for preserving sized timber.
4. The Estates Officer on consideration of the materials produced before him came to the following findings :--
(i) The disputed premises had been given on licence to M/s. Bengal Timber Trading Company and the Bengal Timber Trading Company sold the same to the petitioner.
(ii) The Bengal Timber Trading Company was simply a licensee and under the terms of the licence the land could not be assigned.
(iii) The said Bengal Timber Trading Company had made it clear to the petitioner that the land in question did not belong to the petitioner and he was using it on rent since the time of Bengal Nagpur Railway.
(iv) The petitioner had never applied for permission to construct any house on the premises nor any such permission had been given for construction of any pucca structure.
(v) The relationship between the petitioner and the Railways is only a licensee and licensor and the provisions of the Orissa House Rent Control Act have no application.
(vi) The notice terminating the licence dated 2-3-1980 not having been denied, the petitioner became unauthorised occupant of the railway premises after expiry of the notice period.
(vii) Since the occupation is unauthorised and the premises is a public premises belonging to the Central Government through Railway Administration, he is liable to be evicted from the same under Section 7 of the Act.
(viii) On the question of damages, it was held that the unauthorised occupant (the petitioner) was liable to pay damages at the rate of Rs. 15/- per day for the period 25-5-1980 to 30-9-1980 and at the rate of Rs. 25/-per day from 1-10-1980 to 5-10-1984 and in all Rs. 38,335/-, and accordingly passed the orders for eviction and damages as per Annexure-3. Against the orders under An-nexure-3, the petitioner preferred an appeals before the appellate authority and two contentions had been raised before the appellate authority:--
(i) As the occupation of the petitioner was pursuant to a lease granted in his favour before the property became the property of the Government of India, the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act have no application and on the other hand, the Orissa House Rent Control Act would apply,
(ii) The property in question had not acquired the character, of a public property and, therefore, it does not come within the purview of the Public Premises (Eviction of Unauthorised Occupants) Act.
The appellate authority, however, rejected both these contentions and came to hold that the provisions of the House Rent Control Act did not apply and the properties undoubtedly were Government property. The appellate authority further found that the relationship between the parties was nothing better than a mere licensee and licensor and no interest in the property had been created. So far as the quantum of damages is concerned, the appellate authority confirmed the assessment of damages and hence the present writ applications.
5. Mr. Mohanty, the learned counsel for the petitioner does not assail the findings arrived at by the two forums below, namely, that the relationship between the parties is that of licensor and licensee and that the property is governed by the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act and the Orissa House Rent Control Act has no application. He also does not assail the conclusion of the forums belowthat there has been no case of grant of lease of the premises in favour of the petitioner. The only contention raised by Mr. Mohanty appearing for the petitioner is that even if the petitioner was a licensee in respect of the premises in question but since he has executed a work of permanent character and incurred expenses in the execution, the licence becomes irrevocable under Section 60(b) of the Easement Act and, therefore, the impugned orders are liable to be set aside by this Court. Mr. Pal appearing for the Railway Administration, on the other hand, contended that such a case not having been pleaded either in the written statement filed before the Estates Officer nor such a contention having been raised in any of the forums below and such a contention being dependent upon certain determination of facts, cannot be permitted to be urged in the writ application for the first time. Mr. Pal further contends that in view of the positive case of the petitioner in his written statement that he is lessee and the case of lease having been negatived he is not entitled to raise the contention that the licence is irrevocable.
6. In view of the contention raised by Mr. Mohanty, the learned counsel appearing for the petitioner, the first question that arises for our consideration is whether in the written statement filed by the petitioner before the Estates Officer a case of irrevocability of licence on the ground covered by Section 60(b) of the Easements Act had at all been pleaded or not. We have carefully scrutinised the averments made in the written statement filed by the petitioner before the Estates Officer from the lower court records. We are not in a position to come to a conclusion that such a plea had at all been taken in the written statement. There had been no averments in the written statement that the petitioner acting upon the licence had executed a work of permanent character and had incurred expenses in such execution as a consequence of which the licence has become irrevocable. On the other hand, the positive case made out in the written statement was that the petitioner is lessee in respect of the land and on the lease hold property he has constructed some pucca structure and house. Because ofthe averments in the written statement that the petitioner had built some pucca structure on the land in question, Mr. Mohanty for the petitioner contends that the plea of irrevocability under Section 60(b) had been pleaded. This contention is devoid of any force. In, order to bring a case within the ambit of Section 60(b) of the Easements Act and to render the licence irrevocable, four conditions are required, namely, (a) that there has been a licence pursuant to which the licensee occupies the land; (b) the licensee executed a work of a permanent character; (c) he did so acting upon the licence; and (d) he incurred expenses in the execution. These pre-conditions have not been pleaded in the written statement and, therefore, we are of the considered opinion that a case of irrevocability of licence under Section 60(b) of the Easements Act had not been pleaded.
7. Mr. Mohanty, the learned counsel appearing for the petitioner with reference to the decision of the Supreme Court in AIR 1987 SC 1242, Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College, contends that the pleadings should receive a liberal construction and no podantic approach should be adopted to defeat justice on hair-splitting technicalities and even if the pleadings may not expressly make out a case in accordance with strict interpretation of law, the duty of the court is to ascertain the substance of the pleadings to determine the question. According to him if it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, then it would not be open to a party to raise the question of absence of pleadings in appeal. There is no dispute over the aforesaid proposition of law but in the salfsame case their Lordships of the Supreme Court had indicated that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. In the present case not only a case of non-irrevocability of licence under Section 60(b) had not been pleaded in the written statement but also there had been no such issue before the Estates Officer. There has been noargument either before the Estates Officer or before the appellate authority and even in these writ applications no such pleading has been raised. In that view of the matter, the aforesaid decision of the Supreme Court, cannot have any application. It is too well settled that in a writ of certiorari a point that has not been raised before the original authority or the appellate authority should not be permitted to be raised for the first time in the writ application. (See AIR 1972 SC 1626 : (1972 Lab IC 873), Avery India Ltd. v. Second Industrial Tribunal, West Bengal). In the present case, even in the writ applications the point had also not been raised and for the first time it was advanced by the learned counsel for the petitioner as the sole point of argument in course of hearing and, therefore, such a point cannot be entertained. Mr. Mohanty since made an elaborate argument on the applicability of Section 60(b) of the Easements Act to the findings arrived at and since he pleaded that the matter should be remitted back to the lower Tribunal for giving an opportunity of hearing and disposal of the point, we also thought it appropriate to find out whether at all the point is available to be urged on the findings arrived at. The findings of the Estates Officer which have been quoted earlier would indicate that the Railway authorities had granted the licence to the petitioner's vendor to use the premises as a Saw Mill and for stacking of sleepers. The petitioner was also granted the permission to use the premises on the same terms and conditions and the positive finding is that neither the petitioner had ever applied for permission to construct any permanent structure nor any such permission had been given by the Railway Administration. On these findings, the question that arises is whether it is possible to infer that the petitioner has acquired a right of irrevocability of the licence under Section 60(b) of the Easements Act. We make it clear that we are considering this question even though we have held that the petitioner is not entitled to agitate this question for the first time at the time of hearing of this writ applications, because lengthy argument has been advanced by the learned counsel for the petitioner. UnderSection 60(b) of the Easements Act when the licensee acting upon the licence has executed a work of permanent character and incurred expenses in the execution, the licence cannot be revoked by the grantor. The expression 'acting upon the licence' assumes great significance in deciding the question of irrevocability of a licence under Section 60(b) of the Act. This Rule of irrevocability is, in fact, based on the principle of an implied grant arising from the conduct of the licensor which estoped him from claiming his right of revocation. There has been no material or any finding arrived at by any of the forums below to come to a conclusion that the petitioner acting upon the licence granted to him has executed a work of permanent character and incurred expenses in the execution. In that view of the matter, it is difficult for us to hold that on the materials a case of irrevocability of licence has been made out by the petitioner. In our considered opinion, such a contention is wholly misconceived and we have no hesitation to reject the contention raised by Mr. Mohanty, the learned counsel for the petitioner. So far as the question of damage is concerned, the forums below having duly considered the materials on record and having arrived at the quantum we do not find any error in the same so as to be interfered with by this Court. In the net result, therefore, both the writ applications fail and are dismissed but in the circumstances without any order as to costs.
D. M. Patnaik, J.
8. I agree.