Allahabad High Court
Life Insurance Corporation Of India vs Advani And Company And Others on 10 May, 2000
Equivalent citations: 2000(3)AWC2054, 2000 ALL. L. J. 2955, 2001 A I H C 421, (2000) 2 ALL RENTCAS 62, (2000) 2 RENCR 366, (2000) 3 ALL WC 2054, (2000) 40 ALL LR 244
JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order of the appellate authority, respondent No. 3, whereby the appeal was allowed and the application filed by the petitioner under Section 5 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act) was rejected.
2. Briefly stated the facts of the case are that respondent No. 1 was tenant in the disputed premises No. 16/98 Mahatma Gandhi Marg, Kanpur. The petitioner entered into an agreement with respondent No. 1 on 6th March, 1965, whereby it was agreed that the petitioner will give to respondent No. 1 one shop after its construction having floor area of about 1113 sq. ft. at monthly rent of Rs. 250 after the tenant vacates the premises under its occupation. It was further agreed that the tenancy of respondent No. 1 shall continue in respect of such newly constructed shop without any break and it shall be entitled to all rights that were available to a tenant of any pre-1951 constructions under U. P. Act No. III of 1947 except in so far as it was inconsistent with the terms contained in the agreement.
3. The petitioner filed suit for eviction against the respondent No. 1 (hereinafter referred to as the respondent). The trial court decreed the suit. The respondent filed Civil Appeal No. 330 of 1969. During the pendency of appeal, the parties entered into an agreement and in terms of the said compromise the appeal was dismissed on 22.4.1971.
4. The petitioner sent a notice dated 1.6.1984 terminating the tenancy of the respondent under Section 106 of the Transfer of Property Act. It was further stated that if the respondent fails to vacate and deliver possession to the petitioner, it shall be deemed as unauthorised occupant as the provisions of Public Premises (Eviction of Unauthorised Occupants) Act. 1971 (in short '1971 Act') were applicable. The respondent is alleged to have sent a reply to this notice on 25th June, 1984. It was stated that respondent No. 1 was let out the shop in question prior to the enforcement of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and, therefore, the tenancy could not be terminated. The respondent did not vacate the disputed accommodation after expiry of period given in the notice. The petitioner filed application before the Estate Officer under Section 5 of 1971 Act. The Estate Officer issued notice to the respondent on 20th May. 1986. The respondent filed objection to the said notice on 17.8.1987. The Estate Officer allowed the application of the petitioner and directed eviction of respondent and further directed him to pay damages for use and occupation of the premises in question. The respondent filed appeal against the said Judgment before the District Judge. Respondent No. 3 has allowed the appeal vide impugned order dated 16.5.1988 on the ground that the petitioner failed to prove that the notice of termination of its tenancy dated 1.6.1984 was served upon the respondent. This order has been challenged in the present writ petition.
5. The appellate authority has allowed the appeal on the ground that" the petitioner failed to prove service of notice dated 1.6.1984 upon the respondent. The petitioner had filed application on 22.3.1986 against respondent under Section 5 of 1971 Act. In paragraph 9 of the application. It was stated that a registered legal notice dated 1.6.1984 was Issued by Sri Gopi Shyam Nigam, advocate on behalf of the petitioner determining the tenancy of the respondent and asking him to hand over vacant possession of the accommodation in dispute after expiry of 30 days from the date of service of notice dated 1.6.1984. The respondent filed objection to this application on 17.8.1987. In paragraph 7 of the objection, the respondent admitted receipt of the notice dated 1.6.1984 Issued by Sri Gopi Shyam Nigam, advocate, on behalf of the petitioner but it was stated that it was illegal and void. The appellate authority took the view that though the respondent admitted the receipt of notice dated 1.6.1984 sent by Sri Gopi Shyam Nigam, Advocate, but the petitioner was further required to prove the notice by producing oral evidence. The petitioner had produced one Sri S. C. Saxena as P.W. 1 before the Estate Officer during the pendency of the proceedings before him, but he did not depose about the contents of notice and unless the notice was proved, the respondent could not be directed to be evicted from the disputed premises.
6. When a party admits service of notice either under written statement or in oral evidence, the contents of the notice need not be proved by the witness unless there was any objection that the copy of notice filed by the petitioner was different than the notice received by the respondent. In this writ petition, the petitioner has filed copy of the notice as Annexure-1 and reply sent to this notice by respondent as Annexure-2 to this writ petition. In the counter-affidavit, it has not been denied that the respondent had sent reply to the said notice. A fact which ts admitted need not be proved under Section 58 of the Evidence Act, 1872.
7. The respondent had taken various pleas objecting to the eviction proceedings. Those points were urged before the Estate Officer but they were negatived. The learned counsel for the respondent has again urged those points and they are being dealt with in seriatim.
8. It is urged that when the parties had entered into agreement on 6th March, 1965 whereby it was agreed that the respondent which was occupying another portion of the premises in question will vacate the same and thereafter it will be provided with a newly constructed shop. The respondent vacated the premises and thereafter it was given the disputed shop No. 2 on the rent as agreed between the parties. There was a clause in the agreement which provided that the tenancy of the second party shall be deemed to continue without any break and the second party shall be entitled to all the rights that are available to a tenant of pre-1951 construction under U. P. Act No. III of 1947 except and in so far as it was inconsistent with the terms contained in the agreement. Para 1 of the agreement reads as under:
"I. That in lieu of the entire premises in the occupation of the second party at present, one shop consisting of one bay of the building at present under construction, having a floor area of about 1135 sq. ft. (excluding 10 ft. area) shown bounded by red lines in the map annexed hereto will be given by the first party to the second party for running their present business on a month to month tenancy as has been the case in the premises presently occupied by the second party and the tenancy of the second party shall be deemed to continue without any break and the second party shall be entitled to all rights that are available to a tenant of any pre-1951 construction under U. P. Act III of 1947 except and in so far as Inconsistent with the terms contained hereafter."
9. The respondent was occupying the premises which appears to have been governed by the provisions of Act III of 1947 and under the agreement a newly constructed shop was to be provided and it was agreed by the petitioner that such shop will be governed by the provisions of Act III of 1947. The respondent could not be evicted unless there was any ground for eviction as provided under Act No. III of 1947. It is well-settled principle that a person can waive the advantage or to agree to waive the advantage given to him under the Statute if such benefit is given to a landlord under the Statute. In Soho Squares Syndicate Ltd. v. Pollard and Company. (1940) CH 638, it was observed.
"Where in an Act there is no express prohibition against contracting out. It is necessary to consider whether the Act is one which is intended to deal with private rights only, or whether it is an Act which Intended, as a matter of public policy, to have any more extensive operation."
10. The matter was considered by the Apex Court in Lachoo Mal v. Radhey Shyam, AIR 1971 SC 2213, where the tenant had taken accommodation governed by Act No. III of 1947, the landlord in 1962 entered into an agreement by which the tenant was to vacate the said accommodation for reconstruction and the landlord was to redeliver the same after reconstruction with the stipulation that the provisions of Act III of 1947 will be applicable to such building, it was held that the landlord can waive the exemption benefit available for construction made after 1st January, 1951. The agreement is neither illegal nor unlawful nor defeating provisions of law within meaning of Section 23 of the Contract Act. The Court observed:
"We are unable to hold that the performance of the agreement which was entered into between the parties in the present case would involve an Illegal or unlawful act. In our judgment Section 1A was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that Section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the Section. No question of policy, much less public policy, was involved and such a benefit or advantage could always be waived."
11. The respondent was entitled to the benefit of provisions of U. P. Act No. III of 1947 and could not have been evicted unless the bar contained under the provisions of the said Act as against eviction of a tenant was removed.
12. U. P. Act No. III of 1947 was repealed by Section 43 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972 (U. P. Act No. XIII of 1972) which came into force with effect from 20.9.1972. After repeal of the said Act, the provisions of U. P. Act No. XIII of 1972 were made applicable to all the buildings which were governed by the provisions of Act III of 1947 and also those constructions which came under the purview of the said Act. This did not make any material change in regard to the conditions on which a tenant could have been evicted. A landlord could evict a tenant by filing a suit on any of the grounds mentioned under Section 20 of 1972 Act, or to take appropriate proceedings for eviction under Section 21 of the Act.
13. Section 2 of U. P. Act No. XIII of 1972 provided for exemption of certain buildings from the operation of the Act. The said Act was amended by U. P. Act No. XXVIII of 1976. Prior to the enforcement of U. P. Act No. XXVIII of 1976, Section 2 of the Act was as follows :
"Nothing in this Act shall apply to :
(a) Any building belonging to or vested in the Government of India or the Government of any State or any local authority, or,
(b) ......"
14. The said sub-clause (a) of sub-section (1) of Section 2 of the Act was deleted and substituted by the following sub-clause (a) by U. P. Act XXVIII of 1976 :
(a) any public building or by the same Act XXVIII of 1976 the definition of the term "public building" was also inserted in Section 3 of the original Act as under :
"(3) (a) 'public building' means any building belonging to or taken on lease or requisitioned by or on behalf of the Central Government or State Government (including the Government of any other State) and includes any building belonging to or taken on lease by or on behalf of any local authority or any public sector corporation."
15. Public Sector Corporation was defined under Section 3(p) of the Act as follows :
"Public sector corporation" means any corporation owned or controlled by the Government, and includes any company as defined in Section 3 of the Companies Act, 1956. In which not less than fifty per cent of the paid up share capital is held by the Government."
16. Admittedly, the Life Insurance Corporation is a public sector corporation. After the enforcement of Act No. XXVIII of 1976. It came within the definition of public building and became exempt from the operation of the Act. Section 2(a) was further amended by U. P. Urban Buildings (Regulation of Letting. Rent and Eviction (Amendment) Ordinance 1983 (U. P. Ordinance No. XXVIII of 1983) promulgated on May 18. 1983 substituted for clause (a) of Section 2 (1) of U. P. Act No. 13 of 1972 the following :
"(a) any building of which the Government or local authority or a public sector corporation is the landlord, or"
This Ordinance was replaced by U. P. Ordinance No. 43 of 1983, dated 12th August, 1983, which was succeeded by U. P. Ordinance No. 6 of 1984 and the last in the series is the U. P. Ordinance No. 8 of 1984 promulgated on May 7, 1984, which too contains the aforesaid provision. The Ordinance was replaced by U. P. Act No. XVII of 1985 with effect from 18th May, 1983. The building of the corporation was exempted after the enforcement of U. P, Act No. XXVIII of 1976 and this was made further explicit by incorporating the word 'public sector corporation' in clause (a) of sub-section (1) of Section 2 of Act No. XIII of 1972 with effect from 18.5.1983.
17. The protection which was given to the tenant of a public sector corporation was taken out by the amending Acts. The respondent, thereafter, was not entitled to claim the protection of either Act No. III of 1947 or Act No. XIII of 1972. The agreement of that tenancy which provided that the provisions of Act No. III of 1947 will be applicable, no longer was enforceable after the repeal of Act No. III of 1947 and after the exemption was granted from the operation of the Act in relation to a building owned by public sector corporation after the enforcement of U. P. Act No. XXVIII of 1976.
18. The contention of the learned counsel for the respondent is that as the parties had entered into agreement of tenancy prior to the enforcement of Act No. XXVIII of 1976, the said provision will not be applicable. The exemption under the Act itself contemplates a situation where the tenancy was created prior to the enforcement of the Act but after the Act came into force, the benefit which was conferred upon the tenants was taken out. There is no clause under the amending Act providing that it will not govern the tenants who were continuing in occupation on the date of enforcement of the Act. In State Bank of India. Fatzabad. v. Hari Narain and another, 1980 ALJ (NOC) 8. It was held that the expression "taken on lease' in Section 3(o) of the Act covers the cases in respect of lease taken prior to the Act and either renewed or held over beyond the lease period. This decision was followed in Reserve Bank of India v. S. B. Srivastava. 1983 (2) ARC 3, and it was observed that the lease executed prior to coming into force of the amending Act of 1976 will not take the premises outside the definition of a 'public building' under Section 2(1)(a) read with Section 3(o) of the Act.
19. The result is that the agreement which was applicable in respect of disputed building ceases to be governed by the provisions of U. P. Act No. XIII of 1972. The respondent will not be entitled to the protection of the said Act. The agreement entered into between the parties was that the shop which was newly constructed will be governed by the provisions of Act No. III of 1947 but after the Act Itself is not applicable or the building is exempted under the provisions of Act No. XIII of 1972, any agreement which was entered into between the parties with regard to applicability of the Act becomes non-est. The relationship of landlord and tenant could be governed only under the provisions of Transfer of Property Act.
20. It is next contended that the respondent was already occupying the accommodation in the disputed premises but on the representation made by the petitioner, it vacated the same so that it may obtain as newly constructed shop on the condition that in future unless certain conditions are complied with, the petitioner shall not take steps for eviction and on this promise, it had vacated the accommodation. The principle of estoppel has been enumerated by the Supreme Court in M/s. Motilal Padampat Sugar Mills Company Ltd. v. State of Uttar Pradesh and others, 1979 ALJ 368. In the following words :
"It is a principle evolved by equity to avoid injustice and though commonly named 'promissory estoppel', it is, as we shall presently point out, neither in the realm of contract nor in the realm of estoppel. It is interesting to trace the evolution of this doctrine in England and to refer to some of the English decisions in order to appreciate the true scope and ambit of the doctrine particularly because it has been the subject of considerable recent development and is steadily expanding. The basis of this doctrine is the interposition of equity. Equity has always, true to form, stepped in to mitigate the rigours of strict law."
21. In Vasantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay. AIR 1991 SC 14, the Court again emphasised that the doctrine of promissory estoppel is neither in the realm of contract nor in the realm of estoppel. Its object is to interpose equity shorn of its form to mitigate the rigour of strict law.
22. The principle of promissory estoppel will not be applicable when the parties themselves entered into contract and such contract was reduced in writing. They will be governed by the terms of the contract, they had entered into themselves. Admittedly, the house in question was governed by the provisions of the Act when the respondent was its tenant. The petitioner entered into contract that respondent to vacate the same with the condition that it would provide a reconstructed shop but the provisions of U. P. Temporary (Control of Rent and Eviction) Act, 1947, will be applicable. The building owned by a public corporation was not exempt under the said Act. The said Act was repealed and U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972, came into force. The provisions of this Act were amended by U. P. Act No. XXVIII of 1976 under which the building owned by public sector corporation was exempted. Any tenant who was entitled to the benefit of the provisions of the said Act after enforcement of the said provisions, could not claim their rights on the basis of the contract of lease entered into between the parties. The respondent could claim only the benefit of provisions of Act No. XIII of 1972 but after the exemption was granted to any building owned by any public sector corporation. It cannot rely upon the doctrine of promissory estoppel.
23. The next question is whether the respondent is in unauthorised occupation within the meaning of Section 2(g) of Public Premises (Eviction of Unauthorised Occupants) Act. 1971 (hereinafter referred to as 1971 Act) which defines unauthorised occupation as follows :
"Unauthorised 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 or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
24. It is not disputed that the disputed premises is a public premises within the meaning of Section 2(c) of 1971 Act. The tenancy of the respondent was determined by the notice dated 1.6.1984. The contention of the learned counsel for the respondent is that even the tenancy is determined, a tenant does not per se become unauthorised occupant of the premises within the meaning of Section 2(g) of 1971 Act. He has placed reliance upon the decision of Reserve Bank of India v. S. B. Srivastava, 1983 ACJ 15, wherein it was held that the tenant does not per se come within the mischief of definition of Section 2(g) of the Act merely because his tenancy has been determined. This decision was distinguished with Bir Singh Thakur v. District Judge. Dehradun and others, 1987 ALJ 557, on the ground that where the tenant is governed by the provisions of Rent Control Act, even if the tenancy is terminated, such tenant is entitled to statutory protection but where the tenant is not entitled to statutory protection under the Rent Control Act, his occupation will be unauthorised within the meaning of Section 2(g) of 1971 Act. In this case, the Life Insurance Corporation of India filed application for eviction before the Estate Officer under U. P. Public Premises (Eviction of Unauthorised Occupants) Act. 1971, after determination of the tenancy of the tenant, it was held that his occupation will be unauthorised.
25. In Ashoka Marketing Ltd. and another v. Punjab National Bank, AIR 1991 SC 055, the Apex Court interpreted Section 2(g) of the Act and it was held that the definition of expression 'unauthorised occupation' contained in Section 2(g) of the Public Premises Act is in two parts, the first part relates to occupation by any person of the public premises without authority for such occupation and the second part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put into occupation has expired or has been determined. The respondent, after determination of tenancy, shall be treated as unauthorised occupant within the meaning of Section 2(g) of the Public Premises Act, 1971.
26. The next submission of the learned counsel for the respondent is that an owner of public premises while determining the tenancy must disclose the reason as to why the tenancy is being determined. The reason, if disclosed, will check its arbitrariness. The corporation is a public body and its function must be transparent and should be in the public Interest. Section 2(g) does not provide that the lessor must disclose a reason for determining the tenancy. It uses the expression, "has been determined for any reason whatsoever."
27. In Ashoka Marketing Ltd. (supra). It was contended before the Supreme Court that the Nationalised Bank and Life Insurance Corporation are trading corporations and under the provisions of enactment, whereby they are constituted, are required to carry on their business with a view to earn profit and there is nothing to preclude the corporation to buy any property in possession of tenant at low price and after buying such property, evict the tenants after terminating the tenancy and thereafter sell the property at much higher value because the value of the property in possession of the tenant is much less as compared to the landlord. The Court in paragraph 16 of the judgment observed :
"We are unable to cut down the scope of the provisions of the Public Premises Act on the basis of such an apprehension because as pointed out by this Court in M/s. Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, AIR 1989 SC 1642;
"Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigour of the Rent Act must be informed by reason and guided by the public Interest. All exercise of discretion or power by public authorities as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords must be judged by that standard.""
28. This decision was considered in Jiwan Dass v. Life Insurance Corporation of India and another. 1994 Supp (3) SCC 694, and it was observed that Section 106 of the Transfer of Property Act does not contemplate of giving reason for termination the tenancy and equally the definition of the unauthorised occupation under Section 2(g) of the Act postulates that the tenancy "has been determined for any reason whatsoever" and it was observed as follows :
"When the statute has advisedly given wide powers to the public authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the powers by reading into it the reasonable and justifiable grounds for Initiating action for terminating the tenancy under Section 106 of the T. P. Act. It is so read Section 106 of T. P. Act and Section 2(g) of the Act would become ultra vires. The statute advisedly empowered the authority to act in the public interest and determine the tenancy or leave or licence before taking action under Section 5 of the Act. If the contention of the appellant is given acceptance he would be put on a higher pedestal than a statutory tenant under the Rent Act."
29. A person in occupation of public premises, not governed by the Rent Control Laws, shall be treated in unauthorised occupation after determination of his tenancy.
30. The question as to whether the action of a public authority is biased, mala fide or arbitrary is to be proved by the person challenging its action. In M/s. Dwarkadas (supra), it was held that the onus is entirely on the tenant and the burden lies on him to establish that the tenancy is terminated or the proceedings for eviction are taken not in the public Interest but for collateral purpose or mala fide and it is not within the purview of the Court to substitute a decision taken by a statutory authority. The Court has power of judicial review of an action of statutory authority but for that proper foundation and evidence is to be led to prove it. In Lee and Miuhead (1) Private Ltd. v. Board of Trustees far the Port of Calcutta and others, 1992 (2) CLJ 9, following the decision in Ashoka Marketing (supra), where the notice of termination of licence in regard to flat given by the Port Trust was held invalid, on the ground that a notice which was given in the year 1982 was dropped but subsequently without disclosing any reason, after four years similar notice was given. On facts, it was found that as the authorities failed to disclose any reason in the writ petition for reviving of the notice, the notice was held Invalid.
31. The respondent herein filed objection before the Estate Officer, a copy of which is enclosed as Annexure-C to the writ petition. In para 9 of the objection. It has been stated that the sole Intention of the petitioner was to enhance the rent. The respondent did not produce any material to establish mala fides against any officer or any authority of the respondent. As regards enhancement of rent, the petitioner could have asked for it as held in Jiwan Dass v. Life Insurance Corporation of India, 1994 Supp (3) SCC 694, with the following observation :
"If the contention of the appellant is given acceptance he would be put on a higher pedestal than a statutory tenant under the Rent Act. Take for example that a premises is let out at a low rent years back like the present one. The rent is unrealistic. With a view to revise adequate market rent, tenant became liable to ejectment. The contention then is, action is violative of Article 21 offending right to livelihood. This contention too is devoid of any substance. An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage as a commercial venture. As an integral incidence of ejectment of a tenant/licensee is inevitable. So the doctrine of livelihood cannot indiscriminately be extended to the area of commercial operation. Therefore, we do not find any substance in the contentions of the appellant."
32. It is next contended that the Ministry of Urban Development, Government of India, has Issued guidelines dated 14th January. 1992 and 5th August, 1992, which have to be followed by public sector undertakings. Firstly, these guidelines have been issued by the Ministry of Urban Development. Government of India in respect of public sector undertaking for taking eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The guidelines cannot be applied retrospectively as notice was given to the petitioner in the year 1986 when an application under Section 5 of the Act was filed by petitioner No. 1 against the respondent. It is urged on behalf of the petitioner that the guidelines are in contravention of the Act and Rules. It is, however, not necessary to decide this question as on facts, I have found that respondent has not proved that the action of the petitioner is either arbitrary or mala fide.
33. Learned counsel for the respondent has raised a feeble argument that the petitioner having accepted certain rent after termination of tenancy, the notice shall be deemed to have been waived. Even assuming the rent was taken for certain period after determination of tenancy, it will not amount to waiver in view of the decision in Firm Sardari Lal Vishwanath and others v. Pritam Singh AlR 1976 SC 1518, it would not be open to a tenant to urge by way of defence in a suit for ejectment brought against him under the provisions of Rent Restriction Act, that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice. The petitioner is alleged to have refused to accept the rent subsequent to filing of the application under Section 5 of the 1971 Act. Secondly, it has to be proved on evidence that there was intention to waive the notice.
34. It is next contended by the learned counsel for the respondent that the petitioner had filed suit for eviction against the respondent. The suit was decreed and on appeal being filed by the respondent, the matter was compromised and under the terms of compromise it was agreed upon by the petitioner that it would not execute the decree for eviction unless the respondent falls to pay rent for two consecutive months. It may be noted that the appeal filed by the respondent was dismissed in view of the compromise. The petitioner was not entitled to execute the decree unless the conditions mentioned under the agreement were violated. There was, however, no agreement between the parties that the petitioner cannot terminate the tenancy at any point of time. Secondly, after U. P. Amendment Act No. XXVIII of 1976 the building was exempt from the operation of the Act and there was no bar under the Act to terminate the tenancy. The consent decree does not create a bar against the action taken by the petitioner under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Decisions relied by the learned counsel for the respondent. Prithvichand Ramchand Sablok a. S. Y. Shinde, AIR 1985 Bom 297 and Gosto Behari Pramanik v.
Smt. Molati Sen and others, AIR 1985 Cat 379, are not applicable on the facts of the present case.
35. The last contention of the learned counsel for the respondent is that no valid notice under Section 4 of Public Premises Act. 1971, were given to the respondent as it did not disclose any reason for eviction. Subsection (2) of Section 4 of this Act provides that the notice shall specify the ground on which the order of eviction is proposed to be made. Reliance has been placed on the decision, Bikarama v. IVth Additional District Judge, Varanasi and others. 1984 (2) ARC 241. In this case, the notice under Section 4 of the Act was served alleging there "that you are in unauthorised occupation of forest land as shown in the map annexed with the notice and as requested for your eviction whereas the said land is a public premises. Whereas, I Prescribed Authority, is of the opinion that the ground alleged for your eviction is good ground. I call upon you to appear on 16.1.1974 to show cause why you should not be evicted from the said land." This Court held that no ground was disclosed in the notice.
36. The form of the notice under clause (b) (ii) of sub-section (2) of Section 4 of the Act has been prescribed under the rules framed under the Act. The relevant form is Form A and the notice was not given on the prescribed form. In Dr. Yash Paul Gupta v. Dr. S. S. Anand and others. AIR 1980 J & K 16, it was found that no ground for eviction was specified. This decision, however, approved the dictum of the Special Bench in Standard Literature Company Private Ltd. and others v. Union of India, AIR 1968 Cal 1, wherein it was held that if the notice mentions that the tenancy has been determined and the period specified therein has expired, it will be a sufficient ground for eviction within the meaning of Section 4(2) of the Public Premises Act. It was observed :
"Therefore, where the tenancy of a person has been properly determined under the Transfer of Property Act, then in the case of lands belonging to Government, there is no defence to eviction. All that sub-section (2) of Section 4 requires is that the notice under sub-section (1) should specify the grounds on which the order of eviction was proposed to be made. If a notice to quit has been validly served and the period specified therein has expired, then the person served is in "unauthorised occupation" as defined under clause (c) of Section 2(1) of the said Act. I do not see why this should not be a sufficient ground for an order of eviction under the said Act. In such a case, the person concerned has no defence, and all that was happening is that the machinery of eviction was being expedited. This ground, therefore, is not of substance."
37. The Apex Court in Jiwan Dass's case (supra), has accepted this view and it is not necessary to give any additional reason as to why the tenancy was determined.
38. The petitioner has annexed the copy of the notice given to the respondent as Annexure-6 to the writ petition. The notice reads as under :
REGD AD 16/98, M. G. Marg, Kanpur M/s. Advani and Company through its Proprietor Shri M. M. Advani, Shop No. 2, L1C Bldg., 16/98, M. G. Marg, Kanpur
Whereas I, the undersigned, is of opinion, on the grounds specified below, that you are in unauthorised occupation of the public premises in the schedule below and that you should be evicted from the said premises :
GROUNDS That your tenancy stands determined and terminated vide Applicant's legal notice dated 1.6.1984 served on you on 4.6.1984.
Copy of application is attached.
Now, therefore. In pursuance of sub-section (1) of Section 4 of the Act I hereby call upon you to show cause IN DUPLICATE on or before 6.6.1986 why such an order of eviction should not be made.
AND in pursuance of clause (b) (ii) of sub-section (2) of Section 4, I also call upon you to appear before me in person or through a duly authorised representative capable to answer all material questions connected with the matter along with the evidence which you Intend to produce in support of the cause shown, on 16.8.1986 at 11 a.m. for personal hearing. In case you fail to appear on the said date and time, the case will be decided ex parte.
SCHEDULE As described in the attached copy of the application."
39. In the grounds, it has been clearly stated that the tenancy of respondent stands determined after service of notice dated 1.6.1984. As laid down in Standard Literature Company case (supra), the notice shall be taken as valid. Secondly, the petitioner had submitted reply to the notice but there was no specific objection that the notice was invalid for the reason that it did not specify the grounds on which the order of eviction is proposed to be made. The petitioner had also filed appeal against the order of the Estate Officer but in the grounds of appeal also, there is no specific objection as urged by the learned counsel for the respondent here that the notice did not specify the grounds on which the eviction proceedings were taken.
40. In view of the above, the writ petition is allowed. The order passed by respondent No. 3 dated 16.5.1998 is hereby quashed and the order of the Estate Officer dated 8.3.1994 is maintained.
In the facts and circumstances of the case the parties shall bear their own costs.