(1.) BY this Revision application under Section 115 of the Code of civil Procedure, the licensee challenges the judgment dated 22-8-1997 delivered by the 10th additional District Judge in Miscellaneous Civil appeal No. 224 of 1994, whereby the said Court upheld the order dated 14-6-1994 passed by the Estate Officer - Respondent No. 3 under the provisions of Public Premises (Eviction of unauthorised Occupants) Act, 1971, (hereinafter referred to as 'the Public Premises act' ). The facts in brief are as under :-The Railway plot having No. 3a situated at Great Nag Road, Nagpur, came to be allotted to the present applicant as licensee for the purposes of carrying on his business of fabrication by erecting a Workshop and accordingly the applicant started his business in the year 1982. The deed of licence was entered into between the parties on 1-10-1982. The second licence deed was entered between the parties on 28-4-1986 with effect from 1-4-1986 whereby the licence fee was fixed at rs. 2,419/- per annum. The Revision Applicant paid that licence fee regularly till the end of the year 1991. On 16-8-1992, he received a letter dated 16-6-1992 mentioning that licence fee has been revised with effect from 1-1-1986 and payable amount of Rs. 60,377/- was demanded from him when he had paid an amount of rs. 14,514/ -. This amount was for a period from 1-1-1986 to 31-12-1992. Thus, the arrears of Rs. 45,857/- were demanded from him and he was directed to pay within a period of one month. The applicant made a representation against this retrospective hike. He then received a communication dated 18-1-1993 from the respondents by which he was directed to deposit an amount of Rs. 43,438/-by 31-1-1993. The applicant approached the railway Administration and offered to give them post dated cheques as it was not possible for him to pay the amount immediately. The authorities initially accepted those cheques but later on returned the same mentioning that dates mentioned in the cheques extended the period of payment too long. Thereafter, the applicant received a notice under Public Premises Act from respondent No. 3, calling upon him to show cause as to why he should not be evicted from said plot for non-payment of arrears of rs. 43,742/ -. The Show Cause notice was dated 27-5-1994 and it has been received by the applicant on 3-6-1994. The applicant was called upon to show cause on 7-6-1994 as to why the order of eviction should not be passed. The applicant could not attend on 7-6-1994 and on 14-6-1994, respondent No. 3 passed the order of eviction. The applicant thereafter challenged this order by filing statutory appeal vide M. C. A. No. 224 of 1994 and the appellate court dismissed it on 22-8-1997. It is this order which forms the subject matter of present Civil revision Application.
(2.) I have heared Shri. Rohit Deo, advocate for the revision applicant and Shri. Lambat, Advocate for the respondents/non-applicants.
(3.) RELYING upon the provisions of section 4 of Public Premises Act, Advocate shri. Deo contends that he was not given seven days notice as required by it. He contends that the notice was issued on 27-5-1994 and it was received on 3-6-1994 while he was directed to appear for hearing on 7-6-1994. Thus, according to him, he got notice of only four days and therefore, mandatory provisions of section 4 have been violated and the entire action is liable to be quashed and set aside. He further states that order of eviction dated 14-6-1994 passed by the Estate Officer in exercise of jurisdiction under Section 5 of the Public premises Act, is also illegal as it is in direct conflict with the judgment of the Division Bench of this Court in the case of Minoo Framroze balsara Vs. Union of India, reported in AIR 1992 Bom. 375. He states that the Estate officer was required to independently apply his mind to the facts of the case to find out whether the revision applicant is a person in unauthorised occupation and further whether he deserved to be evicted. He contends that merely because a person is in unauthorised occupation, Estate Officer cannot make the order of eviction. He contends that on account of retrospective hike in licence fee from 1-1-1986, he was not in a position to pay the arrears. He contends that the huge amount was demanded from him all of a sudden in the year 1992 i. e. almost after six years. He contends that this arbitrary and retrospective hike was in relation to other plot holders also and one such plot holder Shri. Vijay Joshi challenged the Show Cause notice itself in Writ Petition no. 521 of 1993 and the Division Bench of this court had admitted that writ petition for final hearing and had granted interim stay to the demand notice. He states that he could not challenge the Show Cause notice by filing writ petition in the High Court but he has made similar grievance in statutory remedy of appeal available to him. He contends that the appellate court has overlooked that the licence fee was revised after six years retrospectively and, therefore, the demand notice was arbitrary and he could not have been evicted. He contends that the proceedings for eviction are in breach of the mandate of law and without jurisdiction. He states that there was no yearly execution of licence deed between the parties and after 1992 licence deed could not be executed because of heavy exorbitant demand made arbitrarily by the respondents. He states that the applicant cannot be termed to be a deliberate or wilful defaulter and merely because there was no licence deed in his favour or merely because he could not pay licence fee hiked retrospectively, he does not become a person in unauthorised occupation. He further contends that in any case, his eviction could not have been ordered on this ground.