HAMIDA ALI v. CALCUTTA TELEPHONES — 1994 DIGILAW 210 (CAL)

A. K. CHAKRAVARTY, J. ( 1 ) THIS revisional application is directed 'against Order No. 64 dated 27th January, 1994 passed by the Judge, 12th Bench, City Civil Court at Calcutta in Misc Appeal No. 3 of 1987. ( 2 ) THE relevant facts for the purpose of this revisional application are as follows :- the tenancy in question which comprises Room No. 70 in the second floor of premises no. 3a, Chowringhee Place, Calcutta-13 was held by the predecessors of, the petitioners at a monthly rental of Rs. 163. 50p. under Ranigunj Coal Association Ltd. On or about 23rd December, 1972, the said company transferred the said property to the Calcutta Telephones. Letter of attainment wan issued. Since the inception of the tenancy the petitioners' predecessor had been paying the rent by issuing cheques up to the month of September 1987. On the 8th July, 1987 petitioners' predecessor received a notice under section 4 (1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (to be stated as 'the Act' hereinafter) by which he was directed to show why he should not be evicted being in unauthorised occupation of the premises. The petitioners' representative explained to the Estate Officer that their predecessor was in occupation of the said premises as a tenant upon paying rents to Calcutta Telephones regularly and produced before him letters, trade licence, documents, telephone bills and upto date rent receipts. These documents, however, were not kept on the record. The petitioners' predecessor thereafter attended the hearing on a subsequent date and produced those papers and submitted that the petitioners' predecessor was not liable to eviction. Like before the documents were not kept in the record. Thereafter on 7. 9. 87 a notice under section 5 (1) of the Act was served upon the petitioners as unauthorised occupants and were directed to vacate the said premises. An appeal was preferred against the aforesaid order of eviction and learned Trial Judge dismissed the appeal. This revisional application has been filed challenging the aforesaid order of the learned Trial Judge. ( 3 ) ME Bhaskar Ghosh, learned Counsel for the petitioner challenged the findings of the teamed Court of appeal below mainly on the three grounds. An appeal was preferred against the aforesaid order of eviction and learned Trial Judge dismissed the appeal. This revisional application has been filed challenging the aforesaid order of the learned Trial Judge. ( 3 ) ME Bhaskar Ghosh, learned Counsel for the petitioner challenged the findings of the teamed Court of appeal below mainly on the three grounds. He drew my attention to the provisions of section 2 (g) of the Act where 'unauthorised occupation' in relation to any public premises has been defined as "any occupation without authority and including the continuance of occupation by any person of the public premises after the authority whether by way of grant or any other mode of transfer/under which he was allowed to occupy the premises has expired or has been determined by any reason whatsoever:" His first contention was that this notice for determination of the tenancy which is stated to be issued on 24. 1. 76 was not served on the petitioners' predecessor and he was accordingly deprived of the opportunity of contesting the said notice. His second contention was that admittedly the rent having been received from the petitioners predecessor up to 14. 9. 87 the notice for determination of the lease dated 24. 1. 76 must be deemed to have been waived. For this purpose he referred to the provisions of under section 113 of the Transfer of Property Act and he submitted that the said act of receipt of rent even after the notice for determination of the tenancy amounts to waiver of the said notice. His third contention in this matter was that notice under section 4 (1) of the Act was issued on 8. 7. 87 and the rent having been accepted even after that date this notice also must be deemed to have been waived. His last contention on behalf of the petitioners was that the notice under section 4 of the Act is not free from infirmity inasmuch as the provisions of sub-section 2 of the said section has not been complied with. ( 4 ) MR. S. K. Moitra, teamed Advocate for tire opposite party, however, contended that the allegations made by the petitioners in their application are all false and that the revisional court is not to interfere with the findings of the learned Trial Court. ( 5 ) HEARD the submissions of the learned Advocates on both sides. ( 4 ) MR. S. K. Moitra, teamed Advocate for tire opposite party, however, contended that the allegations made by the petitioners in their application are all false and that the revisional court is not to interfere with the findings of the learned Trial Court. ( 5 ) HEARD the submissions of the learned Advocates on both sides. It appears from the order of the learned Appellate Judge that the notice under section 2 (g) of the Act was served upon the petitioners' predecessor on 24. 1. 76. The petitioners have denied the service of any such notice. It further appears from the order of the learned Appeal Court that the said notice was produced before him for the first time on 16th May, 1990 alongwith postal receipt and postal acknowledgement. The petitioners, therefore, were not given any opportunity to contest the service, legality or validity of the said notice before the Estate Officer, denying thereby their valuable right of hearing in the said matter. Production of postal receipt with acknowledgement before the learned Court of Appeal below was not enough for the purpose because these' merely may raise a presumption of proper service, but all presumptions are liable to be rebutted. Even assuming that such a notice under section 2 (g), of the Act was served upon the predecessor of the petitioners the said notice having been alleged to have been served on 24. 1. 76 as no action was taken in the matter in terms of the said notice and the matter having been allowed to remain in the same state as before, as the petitioners' predecessor duly paying rent and acceptance therefore and on behalf of the opposite party upto 14. 9. 87 such conduct of the opposite party amounts to waiver of the notice under section 2 (g) of the Act. No other conclusion in this matter is possible if the definition-of rent as given in section 2 (g) is considered in this connection. The rent has been described as the considerations payable periodically for the authorised occupation of the premises. Here in this case it is not the case of the opposite party that the amount paid periodically by the predecessor of the petitioners' were received by the opposite party is license fees or damage or that such amount was received without prejudice to their rights, if any. Here in this case it is not the case of the opposite party that the amount paid periodically by the predecessor of the petitioners' were received by the opposite party is license fees or damage or that such amount was received without prejudice to their rights, if any. There cannot, therefore, be any escape from the conclusion that inspite of the said notice of unauthorised occupation the predecessor of the petitioners' was always deemed to be in authorised occupation of the premises as rent was realised from them. The learned Court of Appeal below, accordingly has miserably failed to exercise its jurisdiction properly ignoring the above aspects of the matter completely by holding the deposit of money merely by challan or to an employee of the Union of India does not restore relationship of landlord and tenant once it is terminated under the law and that the landlord has right to receive the money equivalent to rent even after service of notice to quit and to proceed against the tenant for eviction. Reference was made to a decision in Lee and Muihead India Pvt. Ltd. v. The Board of Trustees for the Port of Calcutta and Ors. , reported in 1992 (2) CLJ 9 where in a writ petition the question arose whether any attempt to revoke the license and to evict the occupant by issuing a notice to quit having not been pursued by allowing the licencee to continue in possession thereof, the second notice to quit for eviction violates Article 14 of the Constitution of India and is liable to be set aside. It was held in that case that such a notice was bad as the actions which was initiated by the first notice cannot be revived subsequently without reasonable cause being apparent therefore. It was held in that case that such a notice was bad as the actions which was initiated by the first notice cannot be revived subsequently without reasonable cause being apparent therefore. It is true that the present case is not a case where relief under Article 14 of the Constitution of India is sought for not it is a case where any second notice was served The fact, however, remains that if any proposed action initiated by any notice to quit under Section 2 (g) of the Act is allowed to be dropped for a considerable period of time and the tenant remains in occupation without any disturbance whatsoever by payment and acceptance of rent in respect of the tenancy there cannot be any revival of the same action by issuing a notices under section 4 (1) of the Act. If notice under section 2 (g) is not pursued and if the position of the parties remains unaltered inspite of the service of the notice to quit for a considerable period of time the said action initiated by the notice to quit must be deemed to have been dropped apart from the question of waiver as mentioned before. If such notice is dropped or waived the main plank upon which the show-cause notice under section 4 (1) of the Act was served cannot have any leg to stand upon and such notice accordingly was illegal and invalid. Learned Advocate for the petitioners also submitted that due to compliance was not made of the formalities required under section 4 (2a) of the Act. This part of the submission cannot be accepted inasmuch as the ground for eviction, however, succinctly made, has been set out in the notice as unauthorised occupation. ( 6 ) THE submissions of the learned Advocate for the opposite party merely concentrated on the question of the jurisdiction of this Court to entertain this application. He submitted that this Court acting in revision should not act as an Appellate Tribunal and that mere wrong decision is not sufficient to attract its jurisdiction and that unless there was grave miscarriage of justice or flagrant violation of law this Court should not interfere. He submitted that this Court acting in revision should not act as an Appellate Tribunal and that mere wrong decision is not sufficient to attract its jurisdiction and that unless there was grave miscarriage of justice or flagrant violation of law this Court should not interfere. There is no dispute with this propositions of law but this Court acting in revision shall certainly can and should interfere when the order impugned suffers from want or excess of jurisdiction, failure to exercise jurisdiction, and violations of procedure or disregard of principles of natural justice. In the instant case, I have shown the order not only suffers from the failure to exercise jurisdiction properly and also the principle of natural justice was not strictly followed. In the circumstances as stated above the order of the Learned Court of Appeal below cannot stand and it is accordingly set aside. The revisional application accordingly succeeds. There will be no order as to costs. Let a Xerox copies of this order be made over to the learned Advocate for both the parties on observing usual undertakings. Application succeed.