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2018 DIGILAW 509 (RAJ)

Nathdwara Temple Board v. Banshi Lal Rathi

2018-02-09

ARUN BHANSALI

body2018
JUDGMENT Arun Bhansali, J - This revision petition is directed against order dated 20.11.2017 passed by Civil Judge, Nathdwara, District Rajsamand, whereby, the application filed by the petitioner under Order VII, Rule 11 CPC has been rejected. 2. The respondent-plaintiff filed a suit for permanent injunction against the petitioner Board, inter alia, with the prayer that petitioner-defendant be directed not to interfere in the use of lease hold shop for a period of 37 years and not to evict the plaintiff from the shop. 3. The petitioner filed an application under Order VII, Rule 11 CPC with the averments that the suit was barred under provisions of Rajasthan Public Premises (Eviction of Unauthorized Occupants) Act, 1964 ('the Act of 1964') and, therefore, the plaint be rejected. The plaintiff did not file reply and argued the matter. 4. The trial court came to the conclusion that from perusal of provisions of Sections 10A and 2(e) of the Act of 1964, as the plaintiff is in possession of the suit shop as a lease holder, at this stage he cannot be said to be an unauthorized occupant and, therefore, the suit was not barred under the Act of 1964 and, consequently, rejected the application. 5. Learned counsel for the petitioner submitted that the trial court committed error in dismissing the application filed by the petitioner; while passing the order the trial court failed to appreciate that by notice dated 01.11.2017 the lease in question was terminated w.e.f. 01.12.2017 and, as such, the plaintiff was nothing but an unauthorized occupant and, consequently, the suit filed by him was ex facie barred by law and in view of the express provisions of Section 10A of the Act of 1964 the plaint was liable to be rejected. 6. Reliance was placed on B. Sharma Rao H. Ganeshmal & Ors. vs. Head Quarters Asst. & Ors. : (1998) 9 SCC 577 , Delhi Development Authority v. Anant Raj Agencies Private Limited : (2016) 11 SCC 406 and Basanti Devi & Ors. v. Masjid Panch Visaytiyan & Anr. : S.B. Civil Second Appeal No. 324/1996, decided on 16.10.2015 at Jaipur Bench. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 7. v. Masjid Panch Visaytiyan & Anr. : S.B. Civil Second Appeal No. 324/1996, decided on 16.10.2015 at Jaipur Bench. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 7. It is not in dispute that the lease was granted on 02.12.1918 for a period of 99 years and, therefore, even by efflux of time said lease would come to an end on 01.12.2017. The suit in question was filed on 13.11.2017 after notice was issued by the petitioner Board on 01.11.2017 informing the plaintiff about the impending expiry of the lease deed and seeking him to handover vacant possession of the premises at the end of the lease period. 8. The petitioner Board filed the present application on 18.11.2017 with the following averments:- No reply to the application was filed and the application was argued by the plaintiff. 9. The relevant provisions of the Act of 1964 i.e. Section 2(e) defines unauthorized occupation and Section 10A provides for bar of jurisdiction, which provisions read as under:- "2(e) "unauthorized occupation", in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant of any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever." "10A. Bar of Jurisdiction - No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises or the recovery of the arrears of the rent payment under sub-section (1) of Section 7 or the damages payable under sub-section (2) of the section or costs awarded to the State Government under sub-section (5) of Section 9 or any portion of such rent, damages or costs." 10. A bare look at the definition of unauthorized occupation reveals that occupation of the public premises by any person without authority for such occupation as well as continuance in occupation by any person of the public premises after the authority, under which he was allowed to occupy the premises has expired or has been determined becomes an unauthorized occupant of the public premises and the jurisdiction of Civil Court has been barred to entertain any suit or proceedings in respect of the eviction of any person, who is in unauthorized occupation of any public premises. 11. Mere fact that on 01.11.2017 the petitioner Board issued notice to the plaintiff indicating the impending expiry of the lease w.e.f. 01.12.2017, till 01.12.2017 could not render the plaintiff an unauthorized occupant, inasmuch as, on the date when the suit was filed by plaintiff/the application was filed by the Board and the same was considered by the trial court, the lease was admittedly still subsisting and, therefore, the assumption of the petitioner that the plaintiff was unauthorized occupant and consequently the suit filed by him was barred under provisions of Section 10A of the Act of 1964, was wholly misconceived at the point of time when the application was filed. 12. The trial court while dismissing the application specifically observed as under:- The said finding of the trial court, in view of the discussion hereinbefore, cannot be faulted. 13. So far as the judgments cited by learned counsel for the petitioner are concerned, none of the judgments pertain to a case wherein the lease was still subsisting and all the cases pertain to the persons who fell within the definition of unauthorized occupants and, as such, the said judgments have no application to the facts of the present case. 14. In view of the above discussion, there is no substance in the revision petition and the same is, therefore, dismissed.