PRABHAKARI ADHIKARI Vs. JAMSHER ALI

JUDGEMENT

(1.) THE instant writ petition has been filed challenging the impugned judgment and order dated 30. 11. 93 passed by the learned District Judge/appellate Authority under the Rajasthan Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred as "the Act"), by which it has set-aside the order dated 9. 9. 1983 passed by the Estate Officer against the respondents in Case No. 138/1981.

(2.) THE facts and circumstances giving rise to this case are that respondent No. 1 Jamsher Ali was given shops Nos. 39,40 and 41, and Maliyas Nos. 62 and 63, total five units, on a monthly rent of Rs. 53/- by the State Devasthan Department Vide rent note dated 1. 6. 1968 (Annexure 5 ). THE said rent note provided for a clause putting embargo no sub-letting the said premises or any part thereof by the said lessee and in violation of the said term, respondent No. 1 inducted respondents No. 2 and 3 in a part of the said premise; and in violation of the terms of the rent note, the respondent No. 1 had,also, made material alterations in the rented premises. THE petitioner served a notice dated 3. 7. 80 (Annexure 11) determining the te- nancy in favour of the respondent No. 1 for violating the terms and conditions of the rent note and the said notice provided that the tenancy would come to an end on 31. 7. 80 in the afternoon. Respondent No. 1 did not vacate the premises after the said date, i. e. , 31. 7. 80, hence respondent No. 4, the Estate Officer, served notices on respondents No. 1 to 3 under Section 4 (1) of the Act, which were served upon them on 10. 2. 81. However, they did not enter appearance nor file any reply. THE Estate Officer passed the order passed the order dated 17. 8. 83 for proceeding ex-parte against respondents No. 1 to 3 and subsequently passed the order dated 9. 9. 83 (Annexure 14) under Section 5 of the Act to evict the said premises. Being aggrieved and dissatisfied, respondents No. 1 to 3 filed an appeal under Section 9 of the Act before the learned District Judge, Jodhpur, which has been allowed by the impugned judgment and order dated 30. 11. 93 (Annexure 4) and the order of the Estate Officer dated 9. 9. 83 has been set-aside. Hence this petition.

(3.) MR. Kothari has placed a very heavy reliance on a Division Bench judgment of this Court in Mansha Ram vs. Deputy Commissioner and others (1), wherein the Division Bench has held as under:- "it is contended that the tenancy of the petitioner has not been determined in accordance with the provisions of Section 106 of the T. P. Act. It is contended that sub-letting cannot be a ground for eviction in view of the provisions of Section 108 of the T. P. Act. Both the contentions are not available to the petitioner, in as much as the relationship between the parties is governed by the provisions of the Rajasthan Premises Act and not by the provisions of general law of the Transfer of Property Act. "