CHANDRA AND CO Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The Cinema house known as "Shri Ganga Theatre" (hereinafter referred to as "the Cinema Theatre"), situated in the city of Bikaner, belongs to the State of Rajasthan. The cinema theatre was given on lease for a period of five years to M/s. Balabux Anand Raj, a partnership firm, from 1st August, 1958. During the pendency of the said lease, the firm M/s. Balabux Anandraj was dissolved on 12th June, 1961 and thereafter, the lease was continued in the name of Shri Anandraj on the same terms. The case of the petitioner is that in the year 1962, Shri Anandraj sub-leased the cinema theatre to the petitioner and since then the petitioner has been in possession of the cinema theatre. The lease of Shri Anandraj was extended by a period of one year from August 1, 1963 on the same terms and conditions. The extension was given in the name of M/s. Anandraj and Company, whose sole-proprietor was Shri Anandraj. After the expiry of the period of the lease, proceedings were initiated by the Collector, Bikaner, under tile provisions of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as "the Act"), against M/s. Anandraj & Co., and in the said proceedings the Estate Officer passed an order dated 27th August, 1968 for eviction of M/s. Anandraj and Co., from the cinema theatre. The aforesaid order passed by the Estate Officer was affirmed, in appeal by the District Judge, Bikaner. Two writ petitions (S. B. Civil Writ Petition No. 520/70 and S. B. Civil Writ Petition No. 99/70) were filed in this Court wherein the aforesaid orders passed by the Estate Officer and the District Judge were challenged. S. B. Civil Writ Petition No. 520/1970 was filed by M/s. Anandraj & Co., whereas S. B. Civil Writ Petition No. 99/70 was filed by the petitioner. The aforesaid writ petitions were disposed of by a learned single Judge of this Court (M. L. Joshi, J.) by order dated 18th July, 1974, whereby the writ petition filed by M/s. Anandraj & Co., was accepted and the order dated 28th August, 1968 passed by the Estate Officer as well as the order dated 5th August, 1970 passed by the District Judge Bikaner were quashed and the non- petitioners in the said writ petitions were directed not to take any proceedings for eviction of M/s. Anandraj & Co., in pursuance of the impugned orders. In the order aforesaid, this Court has observed that although the lease was up to 31st July, 1964, in the first instance, but in view of the acceptance of the rent up to September, 1970, by the State, the status of M/s. Anandraj & Co., was that of a tenant by virtue of the principle of holding over as envisaged under Section 116 of the Transfer of Property Act and that M/s. Anandraj and Co., could not be regarded as unauthorised occupant on the date of the passing of the impugned orders. This Court, however, observed that it would be open to the State to take appropriate proceedings after terminating the lease of M/s. Anandraj & Co. After the aforesaid decision of this Court, the State Government served a notice in the year 1975 on M/s. Anand Raj & Company whereby the tenancy in favour of M/s. Anandraj & Company was terminated. Another notice dated 26th November, 1976, for the termination of the tenancy, was given to M/s. Anandraj and Company and the heirs of Shri Anandraj (deceased), as well as to the petitioner firm and also to the Manager of the cinema theatre. By the aforesaid notice also these persons were informed that the tenancy should be deemed to have been terminated with effect from 31st January, 1977 and they were asked to deliver possession of the cinema theatre. Thereafter an application was submitted on behalf of the State Government before the Estate Officer under the provisions of the Act on 29th June, 1979. M/s. Anandraj & Company and the heirs of Shri Anandraj (deceased), the petitioner firm and the Manager of this cinema theatre were impleaded as opposite parties in the said application. In the said application, it was submitted that the cinema theatre is a public premises under the Act and that the opposite parties to the said application were in unauthorised occupation of the said premises and it was prayed that the opposite parties may be evicted from the cinema theatre and the possession of the premises, including fittings, machines, furniture etc., should be delivered to the applicant. On the said application, the Estate Officer issued a notice dated 29th November, 1979 to the opposite parties, including the petitioner, whereby they were required to appear before him personally or through their authorised representative on 15th February, 1980 and to submit their objections against the application submitted on behalf of the State Government for their eviction from cinema theatre.

(2.) The case of the petitioner is that before the petitioner could appear before the Estate Officer on 15th February, 1980, in the proceedings under the Act, the possession of the cinema theatre was taken over forcibly by respondents Nos. 2, 4 and 5 on 30th Jan., 1910 at about 3.30 p. m. Being aggrieved by the aforesaid action of the respondents Nos. 2, 4 and 5 in taking forcible possession of the cinema theatre the petitioner has filed this writ petition. In the writ petition aforesaid, the petitioner has submitted that the petitioner was in lawful occupation of the cinema theatre and that the action of respondents Nos. 2, 4 and 5 in dispossessing the petitioner from the cinema theatre was without the authority of any law and was wholly illegal, unjust and void.

(3.) The writ petition has been contested by the respondents and in the reply that has been filed on behalf of the respondents, it has been pleaded that after the expiry of the lease on 1st August, 1964, Shri Anandraj and his successors as well as the petitioner owed a duty to return the premises of the cinema theatre to the State Government and that they were under an obligation to peacefully hand over the possession of the same and that they were continuing in unauthorised occupation of the same for about 15 years. In the said reply, it has been denied that respondent No. 2 (the Collector, Bikaner) has gone to the spot or that any police force had been sent and it has been asserted that the possession of the property was demanded, delivered and taken over in a peaceful manner after preparing a panchnama at the spot. In the said reply, it is further asserted that the petitioner was a rank trespasser over the property and the petitioner has no legal right to remain in the cinema theatre. In the reply, it is also stated that the Collector, Bikaner had the authority to ask the petitioner, or its agent, to deliver possession and when the possession was delivered and taken over peacefully there was nothing illegal in it. In the reply, it has also been asserted that the petitioner has no right to invoke the jurisdiction of this Court under Article 226 of the Constitution.