CAV Order

15 /12/2021

1. This petition has been filed against the proceeding initiated by the respondent before the Estate Court, Bhilai.

2. It is submitted that the respondent had executed a lease deed in favour of Shri Jugalkishore M. Rathi granting lease deed of plot No.100. The word lessee mentioned in the lease deed includes the heirs and successors of the lessee. Shri Jugal Kishore M. Rathi has expired on 08.06.2010. Before his death, Shri Jugalkishore M. Rathi had executed a registered will dated 29.04.2009 bequeathing his rights as lessee of shop No.100 to the petitioners. According to the terms of the lease, a cinema hall is being run on the plot granted on lease. Respondent has filed an eviction application under Section 5 of Public Premises Act before the Estate Court (SAIL) Maroda Sector, Near D.P.S. Bhilai, Bhilai, Durg, C.G. praying for the eviction of the petitioners.

It is submitted that the petitioners who are non-applicants in the case before Estate Court, made preliminary objection on the maintainability of the eviction application, which has been dismissed arbitrarily by order in Annexure-P/2. Another application was filed under Order VI Rule 15 of C.P.C., which has also been rejected by the order in Annexure-P/1.

3. It is submitted that the petitioners are successors in interest of the deceased Shri Jugalkishore M. Rathi and they are the successors of the deceased Shri Jugalkishore M. Rathi on the basis of the registered Will deed in their favour. Therefore, the petitioners are not the persons in authorized possession. Hence, the proceeding drawn against them is illegal and arbitrary, which is liable to be quashed.

4. Learned counsel for the respondent opposes the submissions and submits that the proceeding has been drawn under the provisions of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971. According to the terms of the agreement of lease deed, the title on the lease land can not be transferred to any person. The petitioners are not the legal heirs of the deceased Shri Jugalkishore M. Rathi. There is a clear term in the lease deed that the lease holder is not entitled to assign, transfer, mortgage, sublet or otherwise deal with or part with the possession of or the lessee's interest without the prior approval of the lessor. Deceased Shri Jugalkishore M. Rathi has without any authorization assigned the lease land to the petitioners, therefore, the petitioners are unauthorized occupants and the proceeding drawn against them is valid. Hence, it is prayed that petition may be dismissed.

5. In reply, it is submitted that the will deed is not a transfer deed, therefore, it is not governed by the Clause 13 of the lease agreement. On the strength of the will deed, the petitioners are in the shoes of the deceased, therefore, they have entitlement to the possession of the lease land and hence, they cannot be declared unauthorized occupants. It is also submitted that in the lease agreement itself, the 'lessee' has been mentioned as the expression, which shall unless excluded by or repugnant to the context be deemed to include its/his successors/heirs, executors, administrators, representatives and permitted assigns, therefore, the petitioners are not unauthorized occupants. Therefore, it is prayed that petitioners may be granted relief.

6. Heard learned counsel for both the parties and perused the documents present on record.

7. Considered on the submissions. A proceeding has been initiated against the petitioner under Section 5 of the Act, 1971. The provisions is quoted as follows:-

“5. Eviction of unauthorised occupants.—

(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and 1[any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of e