Calcutta High Court
Malaykumar Banerjee vs Union Of India And Others on 18 March, 1994
Equivalent citations: AIR1995CAL126, AIR 1995 CALCUTTA 126, (1996) 1 LJR 275, (1995) 2 CIVILCOURTC 579, (1996) 1 RENCJ 474, (1995) 2 RENCR 193, (1996) 2 CURCC 459, (1994) 1 CAL HN 475, (1994) 2 CALLT 100, (1994) 3 CIVLJ 849
ORDER
1. This Civil Order arises out of an application under Art. 227 of the Constitution of India and is directed against the judgment in Misc. Appeal No. 87 of 1991 dated 18th May, 1992 affirming the order passed by the-Estate Officer, South Eastern Railway, Kharagpur in Eviction Case No. E/80/90/1-III under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
2. The petitioner was given licence by South Eastern Railway through the office of the Chief Hospital Superintendent and Local Health Authority, Kharagpur to manufacture, stock, distribute and exhibit for sale tea, snacks, sweets, meals and other edible foods subject to the conditions as specified under the provisions of the P.F.A. Act, 1954 at Main S.E. Railway Hospital, Kharagpur, Dist. Midnapore from 1st January, 1988 to 31st December, 1988 (vide Annexure "A" to the writ petition). The petitioner renewed the licence from time to time and deposited requisite fee etc. and carried on his work without any complaint from any quarter. According to the Railway Authority, the appellant-petitioner was given a temporary licence for occupation for two years from 17-1-1988 to 16-1-1990 a portion of the building of Main S.E. Railway Hospital, Kharagpur belonging to the Central Government through South Eastern Railway, Kharagpur. During the licence period the appellant-petitioner violated some terms and conditions of the said licence agreement' on certain grounds. The decision not to extend the period of licence was communicated to the petitioner by a letter dated 17-1-1990 but the petitioner refused to take the said letter and thereafter was given a show cause notice under Section 4(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short the Act). The copy of the said notice has been marked Annexure "F" to the writ petition. The appellant-writ petitioner submitted a reply to the show cause notice denying the allegation. There were several dates for hearing the matter before the Estate Officer. It appears from the impugned order that only on 15-5-1991, the petitioner with the lawyer was present and on other occasions, the learned advocate of the petitioner was not present. Then the Estate Officer passed the order under Section 5(1) of the act directing the petitioner to vacate the said premises within 15 days of the date of publication of the order.
3. An appeal was taken in the Court of the learned .District Judge, Midnapore. The learned Additional District Judge, 4th Court, Midnapore disposed of the appeal, affirming the order of the Estate Officer. Against that order the appellant 1 come before this Court under Article 227 of the Constitution of India, mainly, on the ground, inter alia, that there was a flagrant error of procedure and that there was violation of principle of natural justice. The application is hotly contested.
4. Mr. Mahapatra, learned Advocate for the appellant-petitioners has submitted that the notice under Section 4 of the Act has not been served in the manner provided under sub-sections (3) and (4) of the said Section. From a perusal of the notice marked Annexure "F", it appears that the notice contains the grounds as contemplated under the Section and it was addressed to the appellant. From the order of the Estate Officer, marked Annexure "G", it appears that the appellant appeared before the Estate Officer with his lawyer to offer contest. Therefore, it is obvious that the notice was served upon him. The learned lawyer was present with the appellant at least on one occasion but it does not appear that any plea on the ground of non-service of notice was raised at that stage. On the evidence adduced before him, the Estate-Officer was satisfied that the appellant was in unauthorised occupation of a public premises and he should be evicted therefrom. The Learned Appellate Court also was satisfied that the show cause notice was issued to the appellant calling upon him to show cause on or before 7-10-90 in the matter. So it cannot be said that the appellant was deprived of the opportunity of being heard before the order was passed against him.
5. Another point which has been urged by Mr. Mahapatra is that even after the show cause notice was issued licence fees was collected from his client (vide Annexure "A"). The acceptance of licence fees subsequent to the revocation does not amount to acquiescence of possession and the licensers' right to evict the licencee remains unaffected (Chan-dulal v. Delhi Municipality, ) (FB) (Paragraph 35)).
6. Another argument advanced by Mr. Mahapatra is that no notice revoking the licence was issued by the competent authority and the notice terminating the licence being issued by the Canteen Staff Committee was not competent to terminate the licence. The whole argument of the learned lawyer for the appellant is fallacious. It pre-supposes that licence has got to be terminated by a notice or some sort of communication. In this case, the Railway's stand is that the appellant was given licence up to a certain date. Naturally after the expiry of that period, the appellant became an unauthorised occupier as no fresh licence was given. Therefore, it was immaterial whether any notice was given terminating the licence. Whether the appellant was given licence for a particular period or not is a pure question of fact and it cannot be gone into in a proceeding under Article 227 of the Constitution of India. For this reason, I find no substance in the contention of the learned lawyer for the appellant on this score.
7. In view of the discussions made above, I hold that there is no merit in the petition and accordingly it is dismissed.
Let the certified copy of this order, if applied for, be supplied expeditiously.
8. Petition dismissed.