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2006 DIGILAW 551 (CAL)

SHALIMAR PAINTS LTD. v. UNION OF INDIA

2006-08-31

JAYANTA KUMAR BISWAS

body2006
( 1 ) THE petitioners are questioning the order of the appellate officer under Section 9 of the Public Premises (Eviction of Unauthorised occupants) Act, 1971 dated June 3rd, 2002 dismissing their appeal and confirming the order of the estate officer under Section 5 of that Act dated march 28th, 2000 ordering their eviction from the public premises concerned. The first petitioner was enjoying a tenancy under the respondent port trust with respect to a godown space. ( 2 ) THE tenancy was admittedly governed by the provisions of the transfer of Property Act, 1882. By notice dated February 14th, 1990 the port trust terminated the tenancy. The termination was to take effect on the expiration of the month of March 1990. The first petitioner was called upon to quit the premises. It was mentioned in the notice that on its failure to comply with the demand, appropriate steps for eviction would be taken in accordance with law. ( 3 ) QUESTIONING that notice dated February 14th, 1990 the first petitioner and one of its shareholders jointly moved this Court by filing a writ petition (Matter No. 2339 of 1990 ). They prayed for an order quashing that notice dated February 14th, 1990. By order dated July 3rd, 1990 that writ petition was disposed of holding that since the notice dated February 14th, 1990 was a notice under Section 106 of the Transfer of Property act, 1882, on the basis thereof the port trust would not be entitled to evict the first petitioner from the premises concerned. ( 4 ) IT was held that since no proceedings had been initiated by issuing show-cause notice under Section 4 of the 1971 Act, that notice dated February 14th, 1990 was not to be treated as an order under Section 5 of that 1971 Act. It wa's further held that on the basis of that notice dated february 14th, 1990 the port trust would be entitled to institute suit before the appropriate Civil Court for eviction. No order was, however, made quashing that notice dated February 14th, 1990. No order was made either holding that because of that notice dated February 14th, 1990 the port trust would not be entitled to initiate eviction proceedings under provisions of the 1971 Act. No order was, however, made quashing that notice dated February 14th, 1990. No order was made either holding that because of that notice dated February 14th, 1990 the port trust would not be entitled to initiate eviction proceedings under provisions of the 1971 Act. ( 5 ) WHILE the port trust did not file any suit before the Civil Court on the basis of that notice dated February 14th, 1990, the petitioners did not either question that notice before any forum for a declaration that in terms thereof their tenancy had never stood terminated. As a notice duly issued under Secton 106 of the Transfer of Property Act, 1882 that took effect with full force terminating the, tenancy of the first petitioner with respect of the premises in question. It is nobody's case that the premises forming the subject-matter of tenancy were not public premises within the meaning of the provisions of the 1971 Act. ( 6 ) THE port trust approached the estate officer for initiating necessary eviction proceedings against the first petitioner, so that it might recover possession of the public premises tenancy whereof had been terminated by the notice dated February 14th, 1990. Consequently by show-cause notice under Section 4 of the 1971 Act dated June 30th, 1999 the estate officer initiated the proceedings. The first petitioner contested the matter before the estate officer who made the order under Section 5 dated March 28th, 2000 ordering eviction. ( 7 ) FEELING aggrieved the first petitioner preferred appeal under section 9, and by the impugned order dated June 3rd, 2002 that was dismissed. Questioning that this writ petition dated June 26th, 2002 was taken out. I am told that because of the interim order made in this case the first petitioner is still in possession of the premises. For vacation of the interim order the respondents have taken out G. A. No. 2597 of 2006. That was listed yesterday, and I directed that to be heard today with the main writ petition. I am told that because of the interim order made in this case the first petitioner is still in possession of the premises. For vacation of the interim order the respondents have taken out G. A. No. 2597 of 2006. That was listed yesterday, and I directed that to be heard today with the main writ petition. ( 8 ) THE only ground on which the order of the appellate officer is questioned is that officer was wrong in holding that the proceedings could be initiated under the 1971 Act even after the order of this Court dated july 3rd, 1990 made in the writ petition in which the notice under Section 106 of the Transfer of Property Act, 1882 dated February 14th, 1990 was challenged. Counsel says that on the basis of that notice the respondents were not entitled to proceed under provisions of the 1971 Act, though they were entitled to institute appropriate suit before the appropriate Civil court. ( 9 ) I do not find any merit in the contention. By the notice dated february 14th, 1990 only the tenancy governed by the provisions of the transfer of Property Act, 1882 was terminated. That notice was not set aside by this Court, though the first petitioner with one of its shareholders wanted that specific relief in the writ petition in which that was challenged. It is not the case of the port trust that was not a notice under Section 106 of the Transfer of Property Act, 1882. ( 10 ) IN my opinion after serving the notice terminating the tenancy, the port trust was entitled to pursue the remedy seeking eviction of the first petitioner, in terms of provisions of the Public Premises (Eviction of unauthorised Occupants) Act, 1971, particularly when the premises in question were, admittedly, public premises. In view of provisions in Section 15 of the Act, the Civil Court could not have entertained a suit for eviction from the premises concerned. ( 11 ) IN the proceedings initiated before the estate officer reference to the notice dated February 14th, 1990 was to be made of course, since the port trust would not have been entitled to describe the first petitioner as an unauthorised occupant in the absence of termination of the tenancy. ( 11 ) IN the proceedings initiated before the estate officer reference to the notice dated February 14th, 1990 was to be made of course, since the port trust would not have been entitled to describe the first petitioner as an unauthorised occupant in the absence of termination of the tenancy. Simply, because that notice was referred to in the proceedings, it is not to be held that they were initiated by treating that notice as a notice under any provision of the 1971 Act. ( 12 ) ADMITTED position is that the proceedings were initiated by issuing the requisite Section 4 notice dated June 30th, 1999. I, therefore, see no reason to accept the contention that the proceedings initiated by the estate officer were void ab initio. For these reasons the writ petition is dismissed. There shall no order for costs in it. The application for vacation of interim order shall be deemed to be disposed of. Counsel for the petitioners prays for stay. I do not see any scope to make a stay order, when I have dismissed the writ petition. What counsel wants me to do is to make a restraint order after dismissing the writ petition, i do not see how after dismissing the writ petition, I can make a restraint order.