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1998 Supreme(Raj) 711
Rajasthan High Court
Honble B.S. CHAUHAN, J.
Prabhakari Adhikari, Devasthan Department, Jodhpur & Anr. - Appellant
Versus
Jamsher Ali and Others - Respondents
S.B. Civil Writ Petition No. 146 of 1994
Decided On : October 27, 1998
Vineet Kothari, for Petitioners L.R. Mehta, for Respondents
Headnote:Rajasthan Premises (Eviction of Unauthorised Occupants) Act, 1964 – Section 4(I), 5 & 9 – Transfer for Property Act – Section 106 & 107 – Estate Officer is empowered to deal ex-parte proceedings and can pass an order if he is satisfied – But the tenancy is to be terminated in accordance with Law – In the present case the lease was not determined – Eviction decree cannot be passed. (Paras 9, 11 & 12)
The Estate Officer, under the law, has to consider whether the occupant is an unauthorised occupant and he cannot be allowed to sit in appeal over the sufficiency of the grounds for his eviction nor he can be permitted to act as an Appellate Authority to Judge the correctness of the administrative reasons for determining the tenancy. The Estate Officer has been assigned a limited role and he has to examine whether the authority, under which an allottee/ lessee was allowed to occupy the premises, has expired or withdrawn by determining the lease for any reason whatsoever. (Para 12)
``The contract of lease, no doubt, gives rise to State as an interest of the lessee in the property, bare right to possession being only a part of such estate and interest. The determination of the lease, no doubt, puts an end to the contract and such interest and the estate. That must be necessary Consequence and effect of such notice under Section 106 read with Section 111 of the T.P. Act. (Para 9)
(2). The facts and circumstances giving rise to this case are that respondent No. 1 Jamsher Ali was given shops Nos. 39,40 and 41, and Maliyas Nos. 62 and 63, total five units, on a monthly rent of Rs. 53/- by the State Devasthan Department Vide rent note dated 1.6.1968 (Annexure 5). The said rent note provided for a clause putting embargo no sub-letting the said premises or any part thereof by the said lessee and in violation of the said term, respondent No. 1 inducted respondents No.2 and 3 in a part of the said premise; and in violation of the terms of the rent note, the respondent No.1 had,also, made material alterations in the rented premises. The petitioner served a notice dated 3.7.80 (Annexure 11) determining the te- nancy in favour of the respondent No. 1 for violating the terms and conditions of the rent note and the said notice provided that the tenancy would come to an end on 31.7.80 in the afternoon. Respondent No.1 did not vacate the premises after the said date, i.e., 31.7.80, hence respondent No.4, the Estate Officer, served notices on respondents No.1 to 3 under Section 4(1) of the Act, which were served upon them on 10.2.81. However, they did not enter appearance nor file any reply. The Estate Officer passed the order passed the order dated 17.8.83 for proceeding ex-parte against respondents No. 1 to 3 and subsequently passed the order dated 9.9.83 (Annexure 14) under Section 5 of the Act to evict the said premises. Being aggrieved and dissatisfied, respondents No.1 to 3 filed an appeal under Section 9 of the Act before the learned District Judge, Jodhpur, which has been allowed by the impugned judgment and order dated 30.11.93 (Annexure 4) and the order of the Estate Officer dated 9.9.83 has been set-aside. Hence this petition.
(3). Heard Mr. Vineet Kothari, learned counsel for the petitioners and Mr. L.R. Mehta, learned counsel for respondents No.1 to 3, and perused the record.
(4). Mr. Kothari, in his most usual vociferous style, revealed the chequerred history of the case and tried to impress upon the Court by pointing-out the irregularities committed at the appellate stage, particularly granting the stay of dispossession by the Appellate Court before restoring the appeal, which had been dismissed in default. However, as the interlocutory order has emerged in the final order, examining the circumstances of interregnum period, would not serve any fruitful purpose at this stage and I decline to deal with all those issues for the reason that even if there were some irregularities in passing the interim order at the appellate stage by the Appellate Authority, the contesting respondents cannot be held responsible for the same. Therefore, the case is being considered on merit.
(5). Mr. Kothari has submitted that as the respondent No. 1 has inducted respondents No. 2 and 3 in the suit premises without permission of the petitioner in violation of the terms and conditions of the rent note, and also made material alterations in the suit premises and the tenancy came to an end on 31.7.80 by the notice of determining the tenancy, the respondents No.1 to 3 fall in the category of the unauthorised occupants and the Appellate Authority has erred in setting-aside and reversing the well-reasoned order of the Estate Officer.
(6). On the other hand, Mr. Mehta, learned counsel for the respondents, has submitted that the tenancy between the petitioners and respondent No. 1 is undisputed as the respondent No. 1 had entered into the premises with the permission and in pursuance of the rent-note executed by the petitioners in
