- (1.)THIS is an appeal from a Judgment of Mr. Justice Desai and it raises a very short question as to the interpretation of Section 3 of the Government Premises (Eviction) Act, 1950, being Act No. 27 of 1950. It is necessary to state only a few facts in order to understand and appreciate the legal arguments that are advanced before us.
(2.)THE respondent is a displaced person and he has a son in the army and a flat which is situated at Dhobi Talao was given to him under instructions from the Ministry of Defence on the basis that he was a dependant of an army officer and was a displaced person. It is not In dispute that a contractual monthly tenancy was created between the Union of India, which is the owner of these premises, and the respondents, and by notice to quit given on behalf of the Union on 25-6-1953, the tenancy was terminated. As the respondent did not hand over possession, as a matter of fact he had filed the petition from which this appeal arises on 15-4-1953, prior to the notice, apprehending that the appellant who is the Sub-Area Commander would take action against him, the Union gave a further notice on 3-8-1953, under Section 3 of Act 27 of 1950, calling upon the respondent to hand over 'possession within fifteen days' from the date of the service of the notice, and the only question that arises in this appeal is whether this notice is a valid notice, and it will only be a valid notice provided the respondent comes within the ambit of Section 3 of Act 27 of 1950. That Act was put on the statute book, as the preamble shows, for the purpose of providing for the eviction of certain persons from Government premises and for certain matters connected therewith. The expression "certain persons" does not throw much light on the intention of the Legislature because it is clear that the persons contemplated are persons who would satisfy the conditions laid down in Section 3, and, therefore, in order to determine whether a person is the certain person to whom the Act applies, what we have to do is to construe Section 3 and in construction of Section 3 the preamble is not of any assistance. Section 3 is entitled "power to evict certain persons from Government premises. " Sub-section (2) of Section 3 gives the power to the competent authority to evict the person from, and take possession of, the premises and for that purpose use such force as may be necessary. Section 4 confers the power upon the authority to recover damages. Section 5 provides for appeal to the Central Government. Section 6 ousts the jurisdiction of civil Courts and Section 9 is the penal section which makes a person liable to punishment if he obstructs the lawful exercise of any power conferred by or under the Act or contravenes any provision of the Act or of any rule or order made thereunder. Therefore, the statute is in the nature of a penal statute and there can be no doubt that it must be strictly construed in favour of the subject. Now, turning to Section 3, it provides:
" (1) If the competent authority is satisfied- (a) that the person authorised to occupy any Government premises has, whether before or after the commencement of this Act,-- (i) sub-let, without the permission of the Central Government or of the competent authority, the whole or any part of such premises, or (ii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or (b) that any person is in unauthorised occupation of any Government premises. the competent authority may, by notice served by post or otherwise, order that that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within fifteen days of the date of the service of the notice. . . . . "
The scheme of Section 3 seems to be that Sub-clause (a) deals with persons who are authorised to occupy Government premises and it gives the power to evict in cases where such persons have sub-let or where they have acted in contravention of the terms, express or implied, under which they were authorised to occupy the premises, and Sub-clause (b) deals with persons who are in occupation of Government premises and whose occupation is unauthorised. Now, it was suggested by Mr. Desai, although this point was not expressly raised in the Court below, that on the facts the case of the respondent may well fall under Section 3 (1) (a) (ii) and what was urged was that on the termination of the tenancy of the respondent he was under an obligation under Section 108 (q) of the Transfer of Property Act to hand over possession of the demised premises and inasmuch as he failed to do so, he acted in contravention of an implied term of the tenancy. Mr. Desai says that Section 108 (q) of the Transfer of Property Act is a term implied in every tenancy unless there is a contract to the contrary and, therefore, this particular clause must be looked upon as an implied term of the contractual tenancy between the Union of India, the landlord, and the respondent. In our opinion, it is clear that Sub-clause (a) deals with the acts of a person which he commits while being in possession of the Government premises which he is authorised to possess. The obligation of the tenant to hand over possession under Section 108 (q) only arises after the tenancy has been terminated and to the extent that Sub-clause (a) deals with tenants, it deals with the acts of the tenants while the tenancy is subsisting. Sub-clause (a) (i) deals with the case of a sub-letting which the tenant does while he is a tenant and Sub-clause (a) (ii) deals with contravention of express or implied terms of the tenancy, again while the tenancy is subsisting. Therefore, in our opinion, it is impossible to contend that the case of the respondent can fall under Section 3 (1) (a) (ii), because it is not suggested that he contravened any of the terms of the tenancy while the tenancy was subsisting. What is alleged against him is that after the tenancy was terminated, he failed to hand over possession as required by Section 108 (q ). Therefore, the obligation which he failed to discharge was an obligation which arose on the termination of the tenancy and not an obligation which he had to discharge while the tenancy was subsisting.
(3.)BUT the real point of substance which has been seriously urged by Mr. Desai is that the case of the respondent falls under Sub-clause (b) and what we have to consider is whether a person who was lawfully in occupation of Government premises as a tenant whose tenancy has been terminated and who continues in possession of those premises can be described in law as a person in unauthorised occupation. Mr. Desai's contention is that on the notice to quit being given by the landlord and the landlord clearly expressing his intention that on the termination of the tenancy he wanted possession of the premises, the possession of the tenant after the termination became wrongful; it was against the express wish of the landlord and, therefore, the tenant became a trespasser. Mr. Desai further contends that the Legislature in using the present tense "is" was emphasizing the fact that the person against whom proceedings are to be taken is a person who was in unauthorised occupation at the date when the notice contemplated by Section 3 is to be issued and, therefore, Mr. Desai says that however lawful the possession of the tenant was at its inception, if it became unauthorised at the point of time emphasized by the Legislature, then Section 3 would apply to such a person and a notice can be issued against him.