SUNITA AGARWAL, J. - (1.) HEARD Sri Swapnil Kumar and Sri Uma Nath Pandey, learned counsels for the petitioners and Sri Prakash Padia, earned counsel for respondents.
(2.) THE writ petition is directed against the orders passed in the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The case of the petitioners is that the petitioner no. 1 was tenant of Shop No. 7 and 21 existing in the building known as Jeevan Vikas Building, Mahatma Gandhi Marg, Kanpur Nagar since 1.6.1978 owned by respondent no. 1. On 8.6.2001, a notice has been issued to the petitioners by respondent no. 1 asking for enhancement of rent. Thereafter, respondent no. 1 set up a case of eviction on the basis of subsequent notice dated 4.10.2001 alleged to have been sent under the provisions of Section 106 of the Transfer of the Property Act. On the basis of said notice, proceedings under Sections 5 and 6 of the Public Premises Act have been initiated against the petitioners and a registered notice dated 27.2.2002 was issued by the Estate Officer under the Public Premises Act, 1971. The petitioners submitted a reply to the said notice and had categorically pleaded therein that the alleged notice under Section 106 of the Transfer of the Property Act dated 4.10.2001 was never served upon them. The petitioners being lawful tenant of the premises for more than 30 years and have been regularly paying rent cannot be evicted by an illegal notice of termination of tenancy. The Estate Officer treating the notice as invalid passed the order dated 29.4.2004 declaring the petitioner as unauthorised occupant and directed the petitioner to vacate the premises and hand over vacant possession to the respondent. Further direction was given to pay a sum of Rs. 7,40,000/ - and odd to the respondents towards arrears of rent and damages. Future damages of Rs. 24,345/ - was calculated from 30.4.2004, till the date of vacation and handing over possession of the premises in question. A simple interest of 12% per annum was also awarded. Aggrieved the petitioners filed appeal under Section 9 of the Act, 1971 before the District Judge, Kanpur Nagar. The appeal was dismissed on 16.12.2014 and hence this writ petition.
(3.) CHALLENGING the orders of eviction, learned counsel for the petitioners submits that the petitioners have been illegally evicted from the premises in question on the ground of non -payment of rent and that the premises was required by the Corporation for its own use and occupation. An objection was taken regarding applicability of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 on the ground that the premises is not covered within the definition of "Public Premises" under the Act, 1971. Further ground of challenge is that the notice under Section 106 of Transfer of the Property Act was never served upon the petitioners as there was no documentary evidence to prove the service of notice. The presumption regarding service of notice by the Estate Officer is patently illegal. Respondent no. 1 has accepted the rent and water tax of the premises in dispute after the alleged notice of determination of tenancy which was tendered by the petitioner to respondent no. 1 and rent receipts dated 30.3.2002, 4.4.2002 and 21.1.2003 have been issued. Thus, with the acceptance of rent, the notice of termination of tenancy, if any, stands waived. Neither the Estate Officer nor the lower appellate court had appreciated the documentary evidences namely the rent receipts filed by the petitioner before arriving at a finding regarding validity of the notice. Even the witness produced by respondent no. 1 to prove the service of notice did not support the case of respondents in the cross examination. The witness could not establish that the counsel who had sent the notice, was instructed by respondent no. 1. He had failed to disclose in the cross examination as to who had instructed the counsel to give notice of termination of tenancy. The finding recorded by the Estate Officer regarding the unauthorised occupancy is absolutely illegal. The petitioner being bona fide tenant of the premises in question have wrongly been termed as unauthorised occupant and the proceedings under the Public Premises Act, 1971, therefore, are liable to be quashed. Lastly, learned counsel for the petitioners submitted that the guidelines have been issued by the Central Government under the Act and instructions have been issued that the bona fide tenants cannot be made victim of the Public Premises Act. The guidelines issued under the Act and the administrative instructions have the force of law. The Estate Officer and the lower appellate court had committed an error in law in ignoring these guidelines on the ground they are merely administrative instructions and cannot be said to be mandatory.;