Occupancy rights in shops in a cantonment area are transferred by way of public auction or private treaty, and the enjoyment of occupancy rights for any length of time does not create or confer any tenancy right.

KAMLESH SHARMA, J.—Petitioners are plaintiffs, who have filed civil suit in i the court of Sub-Judge 1st Class, Solan for permanent prohibitory injunction restraining respondent-defendant Cantonment Board, Kasauli, Tehsil Kasauli, District Solan from dispossessing them from their respective shops or from interfering with their respective business and putting the said shops to auction on 24-2-1997, as mentioned in auction notice No. CBK/Bldg/3-1434 dated 3-2-1997 either by itself or through its agents, servants and officials. In the Civil Suit an application under Order 39 Rules 1 and 2 read with Section 151 C.P.C. has also been filed for interim injunction order, which was dismissed by the Sub Judge on 10-3-1997. The appeal against the order of the Sub Judge has also been dismissed by the District Judge, Solan by the impugned judgment dated 20-3-1997. Hence, the present revision petition under Section 115 C.P.C.

2. It is not in dispute that the petitioners are transacting business in the shops in question, which are of the respondent Board. Admittedly, earlier the shops used to be allotted in public auction but lately these were given under private treaty entered between the petitioners and the respondent Board whereby rent of the shops was fixed from year to year basis. Last private treaty was for the financial year commencing from 1st April, 1993 to 31st March, 1994. But even thereafter the respondent Board has been accepting the rent till it took decision on 2-1-1997 to auction the shops for a period of three years, for which public notice dated 3-2-1997 was given to hold auction on 24-2-1997. This gave cause of action to the petitioners to file the civil suit alleging that since the shops were not auctioned after 31-3- 1994 and the petitioners were permitted to continue in possession on the same terms and conditions they are holding over the shops and the respondent Board has no authority to auction them before 31-3-1997. It is also alleged that without terminating the lease of the petitioners they cannot be asked to hand over the vacant possession of the shops.

3. The respondent Board has resisted the suit and has pointed out that it is i within its right to transfer the occupancy right of the shops by the mode provided under Section 200 of the Cantonment Act, 1924 (hereinafter called the Act). It is also alleged that earlier no auction was held as the matter was pending before this Court in CWP No. 748 of 1994, which has been dismissed by judgment dated 7-11-1996 holding that transfer of occupancy rights in the shops can be made by no other mode except the mode provided under Section 200 of the Act. Accordingly, decision dated 2-1-1997 was taken by the respondent Board to transfer the occupancy rights in the shops by public auction which was to be held on 24-2-1997 in which the petitioners might also participate if they so desired.

4. From the record of CWP No. 748 of 1994, it is clear that the petitioners had approached this Court when the respondent Board had decided to give the shops to existing lessees on an enhanced rate of 15% of the existing rent for the year 1994-95 under Section 200 of the Act and directed them to submit a non-judicial stamp paper so that further action might be taken for execution of the agreement, failing which the shops would be got vacated. The petitioners had challenged the said notices in the writ petition and prayed for direction to the respondent Board, inter alia, to enter into leases with them for the occupation of the shops as per Rule 8 of the Cantonment Property Rules, 1925 for a period exceeding 30 years at a reasonable rent declaring Section 200 of the Act ultra vires. Rejecting the claim of the petitioners this Court has held that transfer of occupancy rights in the shops can be by no other mode except by the mode provided under Section 200 of the Act, which provides for transfer by way of public auction for a maximum period of three years and by way of private treaty unde