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Judgment
Prasenjit Mandal, J.—These applications are directed against the common judgment and order dated April 4, 2007 passed by the learned Judge, City Civil Court, 6th Bench, Calcutta in several misc. appeals thereby dismissing the Misc. Appeal No. 6 of 2006 and allowing the other 33 misc. appeals arising out of the order dated January 18, 2006 passed by the Estate Officer. The First Appellate Court affirmed the order of eviction against the original tenant Hariram Agarwala, since deceased, but, set aside the order of eviction of the sub-tenants and unauthorised occupants passed by the Estate Officer. At the same time, he has given the respondent/petitioner herein liberty to initiate fresh proceedings for eviction of the persons allegedly occupying the premises in question without any authority after serving notice u/s 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, if so advised. Being aggrieved, these 33 applications have been filed by the respondent/petitioner herein.
One Hariram Agarwala, since deceased, had been possessing different lands under the petitioner herein under different agreements specifying terms and conditions and the amount of rent payable therefor. Thereafter, the said Hariram Agarwala inducted subtenants/unauthorised occupants in respect of the lands of the petitioner and when such occupants did not vacate the premises in spite of notice of eviction, the proceedings u/s 5 of the said Act of 1971 were initiated against them.
The Estate Officer awarded eviction against such occupants of the lands in case and being aggrieved, the occupants including Hariram Agarwala preferred several appeals before the First Appellate Court and the First Appellate Court dismissed the appeal preferred by Hariram Agarwala, but, allowed the other appeals filed by the other occupants, i.e., the sub-tenants and the unauthorised occupants in the manner indicated above.
Since the common questions of fact and law have arisen and these 33 applications are disposed of by this common judgment and order.
Now, the question is whether the impugned judgment and order should be sustained so far as the same is concerned with the sub-tenants/unauthorised occupants.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the First Appellate Court has allowed the appeals filed by the sub-tenants/unauthorised occupants on the ground that no notice of eviction was served upon them u/s 4(1) of the said 1971 Act and as such, the award of eviction passed by the Estate Officer against them is bad and cannot be sustained.
What I find from the materials on record is that there are several sub-tenants and unauthorised occupants and that it is not clear which sub-tenants or unauthorised occupants possess what portion of the land specifically over which Hariram Agarwala (since deceased) suffered an award of eviction confirmed by the First Appellate Court by the impugned order.
Section 2(g) of the said Act of 1971 lays down the definition of "unauthorised occupation", in relation to any public premises, meaning thereby the occupation by any person of the public premises without authority for such occupation, and including 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.
There is no dispute that the 33 appellants/opposite parties herein are in possession of the public premises without any authority of such occupation.
So far as the service of notice upon the subtenants/unauthorised occupants is concerned, I find from the letters issued by the Land Manager on behalf of the petitioner, that the notice of ejectment was duly issued upon Estate Hariram Agarwala indicating that it had inducted sub-tenants unauthorisedly, erected unauthorised construction and also neglected to pay the rent and taxes amount as indicated in the notice appearing as Annexure-P collectively and as such, the relationship of Estate Hariram Agarwala with the petitioner stood terminated by such notice dated August 6, 2002.
Thereafter, the Estate Officer started the proceeding for eviction as appearing from Annexure-P1 at page no. 25 to the application and such copy of the order sheets indicates that the notice u/s 4 of the said Act was issued upon all the sub-tenants/unauthorised occupants under the KOPT.
While arguing on behalf of the petitioner, Mr. Jahar Chakraborty, learned Advocate appearing for the petitioner has shown to this Bench from the materials on record that notice u/s 4 of the Act had been duly served by the Estate Officer.
But, Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the opposite party, has contended that no notice had been served upon the opposite parties following the provisions of the Act and the Rules made thereunder.
Mr. Banerjee has drawn the attention of this Bench that the notice was served upon the estate of Hariram Agarwala and not to his clients who were described as sub-tenants/unauthorized occupants.
He has contended that so far as service of notice is concerned, in the instant case, the Land Manager had sent the notice upon the estate of Hariram Agarwala and, in fact, no notice was served by the Estate Officer.
He has also contended that the notice upon the opposite parties is to be served according to the provision of Rule 4 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, and according to this Rule 4, different Sub-Rules have been framed for effective service of notice upon the opposite parties. Thus, referring to different Sub-Clauses, he has contended that the notice upon the unauthorized occupants could be served by affixing the copy of the notice on the wall when the opposite party refuses to accept the notice or none is available or no adult member of the opposite party is available. Only in such cases according to the Sub-Rule 3 of Rule 4 of the said Rules, the notice could be served by affixation. Otherwise, notice must be served upon the opposite parties in the mode as described in Sub-Rule 1 & 2.
He has also contended that in the instant case, there is no material on record that the service of notice had been done by Estate Officer and so far as the notice served by the Land Manager upon the opposite parties is concerned, the matter is now pending before the Apex Court and it has not been disposed of. Thus, he has contended that the learned 1st Appellate Court has rightly held that the notice u/s 4 of the 1971 Act upon the sub-tenants/unauthorized occupants had not been served and as such the learned First Appellate Court did not grant any relief in favour of the petitioner against the sub-tenants/unauthorized occupants.
He has also drawn my attention that the Estate Officer is given a liberty to take appropriate steps for eviction afresh after service of notice. Thus, he has supported the impugned judgment and order and thus, he has submitted that the applications should be dismissed.
Upon due consideration of the materials on record, relevant Section 4 of the Act and the Rules thereunder, I find that in the instant case, there are several subtenants/unauthorised occupants under Hariram Agarwala (since deceased). The persons who are in occupation of such premises and their extent of accommodation and identification are not known to the concerned authority or the Estate Officer. When such a situation arises and when the persons occupying the premises in question could not be identified and their specific possession could not be determined, notice u/s 4 of the 1971 Act could well be served in a general way by affixing the same on the outer door or some other conspicuous part of the ordinary residence or usual place of business of such persons and the original shall be returned to the Estate Officer who issued the notice or the order as indicated in Rule 4(3) of the Rules.
The identification of the persons under occupation of the premises in question could not be determined and the opposite parties also did not disclose anything as to their occupation of the premises in question though they are running business thereat and residing. I find from materials on record that they had formed an Association of such sub-tenants and unauthorised occupants and they are moving through such Association.
Anyway, in view of the provisions of Rule 4(3) and the decisions referred to later on, when the service of notice had been effected in a general way by affixing on the outer room or some other conspicuous of the ordinary residence or the usual place of business of such person, the compliance of Section 4(1) of the said Act will be deemed to have been done.
It is pertinent to mention that by several orders from the end of the Appellate Court and also of this Court, several directions were given to the subtenants/unauthorised occupants to deposit certain amount towards adjustment of the occupation charges etc.
By the order dated May 17, 2006, the First Appellate Court directed the appellants to deposit a sum of Rs. 3,25,80,948/- by June 16, 2006. Subsequently, by the order dated July 16, 2010, this Hon''ble Court directed them to pay at least a sum of Rs. 2 crore only for the time being towards compensation as claimed by the petitioner of these applications. But, from the order dated June 20, 2013, it appears that till this period, the opposite party had deposited a sum of Rs. 30 lakh only. After deduction of such amount, the dues appeared to the extent of Rs. 6,82,49,534/-. The opposite party did not comply with the directions of the Court and they are proceeding with the litigations.
Mr. Chakraborty has contended that total dues are now to the tune of Rs. 7 crores after adjustment of the nominal amount of Rs. 30 lakh only as indicated above.
It is pertinent to mention that during the argument, Mr. Banerjee appearing for the opposite parties has submitted that the KOPT was to take a decision for regularisation of the sub-tenants/unauthorised occupants and yet to pass appropriate orders in this aspect and in support of his contention, he has referred to the Letter/Office Memo dated September 26, 2007 and thus, he has submitted that accordingly, the matter may be proceeded with in that light so that their occupation may not be hampered.
With due respect to Mr. Banerjee, I am of the view that it is not clear for whom he is contesting the applications and in fact, his clients are occupying what portion of the premises in question and as such, until nothing is specifically determined or decided, the matter cannot be kept pending for an unending period.
It may also be recorded that this matter is still pending since 2007 and the directions to deposit as indicated above had not been complied with. In such a situation, the matters cannot be kept pending and in my view, the applications should be disposed of in accordance with law.
The Estate Officer has come to a finding that after effecting service of notice u/s 4 of the 1971 Act, the initiation of the proceeding for eviction u/s 5 of the Act had been started. The materials on record as indicated above supports such fact. Since the sub-tenants/unauthorised occupants are running their business and residing after making unauthorised construction, it is certainly difficult for the petitioner to collect particulars of such subtenants/unauthorised occupants and to issue a notice of eviction to each and every individual unauthorised occupants by name and so, the general notice will be sufficient and this has been clarified in the case of Ashoka Marketing Ltd. and another Vs. Punjab National Bank and others, by the Apex Court. So, individual notice need not be served upon the subtenants/unauthorised occupants. This has also been indicated in an unreported decision dated August 3, 2006 passed in A.P.O.T. No. 124 of 2006 in connection with W.P. No. 2181 of 2005. The notice u/s 4 of the Act of 1971 had been marked exhibit and kept with the concerned record of the eviction proceeding vide Annexure P-1 at page no. 25 onwards of the application. The notice issued by the Land Manager appearing as Annexure P-22 at page no. 22 is not the notice u/s 4 of the Act of 1971. These notices are of ejectment notices and/or notices for revocation of licences.
In that view of the matter, I am of the opinion that so far as the appeals filed by the subtenants/unauthorised occupants are concerned, there is perversity in the findings of the judgment and order passed by the First Appellate Court. Since the matter came to First Appellate Court from the award of an Estate Officer who is not required to follow the Rules which could be followed in the matter of a suit before the Court, I am of the view that the learned First Appellate Court was not justified at all in allowing the appeals filed by the sub-tenants/unauthorised occupants. My observation in this regard gets support from the decision of New India Assurance Company Ltd. Vs. Nusli Neville Wadia and Another, The learned First Appellate Court has, therefore, committed illegality with material irregularity by holding that the notice had not been served upon the individual subtenants/unauthorised occupants u/s 4 of the 1971 Act. The findings of the Estate Officer as to service of notice u/s 4 of the 1971 Act upon the sub-tenants and the unauthorised occupants are, therefore, sustained and the contrary findings by the First Appellate Court in this regard stand set aside.
Accordingly, so far as the sub-tenants and the unauthorised occupants are concerned, the findings and conclusion of the First Appellate Court cannot be sustained and the same stand set aside. These appeals filed by the sub-tenants and the unauthorised occupants before the First Appellate Court stand dismissed.
The findings of the Estate Officer in the order dated January 18, 2006 so far as sub-tenants/unauthorised occupants are concerned, the same are hereby affirmed.
The applications are allowed to the extent indicated above.
Execution proceedings, if lodged by the petitioner, be expedited.
Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.