R. M. Sahai, J. - (1.) A very short question of law arises for consideration in this petition as to whether tenancy can be said to have been determined by resumption of grant by Government so as to render a tenant an unauthorised occupant within the meaning of sub-clause (g) of Section 2 of U. P. Public Premises (Eviction of Unauthorised Occupant) Act, 1971 (Act XL of 1971) (hereinafter referred to as Act).
(2.) FACTS are not in dispute. Admittedly petitioner was allotted premises in dispute by Cantonment authorities. At that time it's landlord was one Mr. Khanna. Although landlords changed but petitioner's tenancy continued uninterrupted. When grant was resumed in 1970 by the Central Government its landlord was Mrs. Prakash Wati Devi. Proceedings for resumption were contested by her but without any success and ultimately it was held that the landlady had no right and the Central Government was entitled to enter and occupy the premises in dispute. After finalisation of these proceedings the Military Estate Officer sent a notice on 2nd January, 1977 to the petitioner intimating him that the Bungalow alongwith land appurtenant has been resumed by the Government of India from October, 1970 and as petitioner was in unauthorised occupation of the portion of the said permises and he has not obtained any permission from the competent authority for occupying the same, notice was given to him to vacate the premises forthwith as it was required urgently in public interest. In June, 1977 notice under section 4 (1) of the Act was given to show cause on or before July 20, 1977 as to why an order of eviction may not be passed as despite notice dated 2-1-1977 petitioner had failed to vacate the premises in dispute. After receiving reply of petitioner and affording an opportunity to file documents etc. the Military Estate Officer on August 22, 1977 passed an order declaring that petitioner was an unauthorised occupant to whom notice under section 5 (1) of the Act be issued to vacate the premises within thirty days. In appeal the order was upheld as according to appellate authority the petitioner became an unauthorised occupant from the date the grant was resumed by the Government of India. It was held that after resumption of grant the tenancy rights of petitioner also came to an end and there remained no question of any formal determination of the same under the Transfer of Property Act. Sub-clause (g) of Section 2 of the Act reads as under :- " 'Unauthorised occupation', in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in 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 for any reason whatsoever, " This sub-clause envisages two class of occupants-one who are in occupation without any authority and the other whose occupation at inception was lawful but is rendered unlawful because either the term of grant or lease has expired it has been determined. The first does not present much difficulty. Moreover this petition is not concerned with it, as admittedly petitioner was inducted as tenant by an allotment order issued by Cantonment authorities which did not fix any time limit. Therefore, the authority under which he was allowed to occupy the premises did not expire. The only other way in which the occupation of petitioner could be rendered unauthorised was if the authority under which he was in occupation of premises was determined for any reason whatsoever. This determination that is termination of tenancy had to take place either by operation of law or by act of parties. Section 76 of Transfer of Property Act is an illustration where rights of mortgagees tenant cease automatically on redemption of mortgage. But in absence of any such provision the tenancy of petitioner had to be determined. The Military Estate Officer was required to terminate it by sending notice under section 106 of Transfer of Property Act.
(3.) LEARNED Standing Counsel urged that after resumption of grant provisions of the Public Premises Act became applicable resulting in rendering petitioner's occupation as unauthorised. The argument suffers from inherent fallacy. If it is accepted then the expression 'under which he was allowed to occupy the premises has expired' is rendered meaningless. In other words the Legislature itself contemplated situations in which term of lease or grant or transfer had not expired the person would become unauthorised occupant only after the period has expired, that is not by mere application of the Act but by doing something. In a case where the lease is for a fixed term one becomes unauthorised occupant from the date the term of the lease expires that is by efflux of time. Similarly, where there is no fixed term then a person shall become unauthorised occupant only if the transfer or the grant under which he is occupying is determined by the competent authority. Resumption of grant results in change of ownership but in absence of any provision it cannot result in automatic determination of tenancy. Manner of determination of tenancy is provided by Transfer of Property Act. There was some doubt if provisions of Transfer of Property Act applied to government grants but it has been settled by Hon'ble Supreme Court in State of U. P. v. Zahoor Ahmad, AIR 1973 SC 2520. The effect of the decision is that provisions of Transfer of Property Act relating to determination of tenancy under section Secs. 106 and 111 etc. become applicable even to government grants. The tenancy of the petitioner, therefore, could not have been determined except as provided under sections 106 and 111 of the Transfer of Property Act. It is not disputed that no such determination was done. Reliance was placed on various notices sent from time to time which has been mentioned above and it was urged that they should be construed as determination of tenancy under section 106 of the Transfer of Property Act. The argument appears to be misconceived as in none of these notices the petitioner has been treated as a tenant whose tenancy rights have been terminated. They are intimation to vacate the premises in dispute. They cannot be construed as notice determining tenancy. Reliance was placed by the learned Standing Counsel on Jaimini Manufacturing Company v. L. I. C. of India, AIR 1981 SC 670. At the first flush it did appear that this decision supports the contention raised by him. But on a closer scrutiny it is clear that no such controversy arose as after Life Insurance Corporation became owner of the premises it determined the tenancy of tenant by giving notice under section 106 of the Transfer of Property Act. It was urged before Hon'ble Court on behalf of tenant that as he was in occupation since before the provisions of Act became applicable he could not be treated to be unauthorised occupant. This was repelled as where occupation was from prior to the date of application of the Act or after it did not make any difference since the occupant on the date when Act came into force shall be treated to be occupant for the Act and once tenancy was determined he became unauthorised occupant.;