HAMIDA ALI Vs. CALCUTTA TELEPHONES

JUDGEMENT

(1.) This revisional application is directed 'against Order No. 64 dated 27th January, 1994 passed by the Judge, 12th Bench, City Civil Court at Calcutta in Misc Appeal No. 3 of 1987.

(2.) The relevant facts for the purpose of this revisional application are as follows :- The tenancy in question which comprises Room No. 70 in the second floor of premises no. 3A, Chowringhee Place, Calcutta-13 was held by the predecessors of, the petitioners at a monthly rental of Rs. 163.50p. under Ranigunj Coal Association Ltd. On or about 23rd December, 1972, the said company transferred the said property to the Calcutta Telephones. Letter of attainment wan issued. Since the inception of the tenancy the petitioners' predecessor had been paying the rent by issuing cheques up to the month of September 1987. On the 8th July, 1987 petitioners' predecessor received a notice under section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (to be stated as 'the Act' hereinafter) by which he was directed to show why he should not be evicted being in unauthorised occupation of the premises. The petitioners' representative explained to the Estate Officer that their predecessor was in occupation of the said premises as a tenant upon paying rents to Calcutta Telephones regularly and produced before him letters, trade licence, documents, telephone bills and upto date rent receipts. These documents, however, were not kept on the record. The petitioners' predecessor thereafter attended the hearing on a subsequent date and produced those papers and submitted that the petitioners' predecessor was not liable to eviction. Like before the documents were not kept in the record. Thereafter on 7.9.87 a notice under section 5(1) of the Act was served upon the petitioners as unauthorised occupants and were directed to vacate the said premises. An appeal was preferred against the aforesaid order of eviction and learned Trial Judge dismissed the appeal. This revisional application has been filed challenging the aforesaid order of the learned Trial Judge.

(3.) Me Bhaskar Ghosh, learned Counsel for the petitioner challenged the findings of the teamed Court of appeal below mainly on the three grounds. He drew my attention to the provisions of section 2(g) of the Act where 'unauthorised occupation' in relation to any public premises has been defined as "any occupation without authority and including the continuance of 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 by any reason whatsoever:" His first contention was that this notice for determination of the tenancy which is stated to be issued on 24.1.76 was not served on the petitioners' predecessor and he was accordingly deprived of the opportunity of contesting the said notice. His second contention was that admittedly the rent having been received from the petitioners predecessor up to 14.9.87 the notice for determination of the lease dated 24.1.76 must be deemed to have been waived. For this purpose he referred to the provisions of under section 113 of the Transfer of Property Act and he submitted that the said act of receipt of rent even after the notice for determination of the tenancy amounts to waiver of the said notice. His third contention in this matter was that notice under section 4(1) of the Act was issued on 8.7.87 and the rent having been accepted even after that date this notice also must be deemed to have been waived. His last contention on behalf of the petitioners was that the notice under section 4 of the Act is not free from infirmity inasmuch as the provisions of sub-section 2 of the said section has not been complied with.