- (1.) THIS is an application under Article 227 of the constitution of India to set aside the judgment and order of the District Judge, Alipore made on the 12th day of August, 1961 confirming an order of eviction under the Public Premises (Eviction of Unauthorised Occupants) Act, 1958. The petitioner has been a tenant of the Superintendent, Gun and Shell Factory, Cossipore in respect of about eight Cottahs of land being Plot No. 2254 outside the boundary wall of the Gun and Shell Factory from or before 1941,. The petitioner has constructed pucca building upon the said plot of land besides other substantial outhouses and Structures. On the 28th day of January, 1961 the Government issued a notice terminating the tenancy of the Petitioner with effect from March, 1961. Thereafter the Estate Officer issued a notice to the Petitioner under Section 4 of the said Act, The Petitioner filed an objection against the said notice without success. Thereupon the Estate Officer issued a notice under clause 1 of Section 5 of the eviction of the petitioner.
(2.) THEREAFTER, the petitioner filed an appeal under Section and of the said Act before the District Judge, Alipore. The District Judge, Alipore dismissed the said appeal. Thereupon this application for revision was filed on the 21st day of August, 1961 and a rule was issued calling upon the Opposite Parties to show cause why the order complained of should not be set aside or such other order or further orders made as to this Court may deem fit and proper. On the same day there was an interim order whereby the operation of the order of eviction was also stayed. The said interim order was later on confirmed. Thereafter, it has come for disposal before us. Mr. Mitter, learned Advocate appearing for the petitioner submitted strenuously that his client was not in unauthorised occupation for the notice dated 28th January, 1961 did not and could terminate the tenancy of Shri Shankar Lal Saha, the Petitioner with effect from 1st March, 1961 or otherwise, for he was a tenant in terms Of the provisions of the West Bengal Non-Agricultural Tenancy Act, and further contented that as the question of applicability of the West Bengal non-agricultural unit Tenancy Act raised a pure point of: law, his client should be allowed to canvas this point before us. The opposition filed by the petitioner to the notice under section 4 before the Estate Officer is not in the record of the District Judge, Alipore who heard the appeal. So, it cannot be said whether or not this point was raised by the petitioner before the Estate Officer. There is no indication in the one or of eviction made under clause 1. of Section 5 that such a point was taken before the Estate Officer. It however, appears from the judgment of the appellate Authority that when this point was raised before him it was stated on behalf of the petitioner that he does not claim any benefit under the West Bengal Non-agricultural Tenancy Act but be relies upon the Crown Grant Act. In the grounds of the revision in filed before this Court this point again was not taken or indicated. It. was only on or about 23rd day of April, 1963 long after the issue of the rule, the point was indicated in a letter addressed by the learned Advocate of the petitioner to the learned advocate of the respondents. The paid better set out the following supplementary and or additional grounds.
(3.) FOR that the learned Appellate Office" as well as the Estate Officer acted illegally and wrongly in not considering and adverting to the fact that the tenant petitioner was at all relevant times a non-agricultural tenant within, the meaning of the West Bengal Non-agricultural Tenancy Act, 1949, inasmuch as all the materials or elements underlying the nature of the tenancy in question were present in the case, ii. For that the Notice to quit was invalid and insufficient in law inasmuch as at least 6 months1 notice as provided in the W. B. ,non-Agricultural Tenancy Art, was necessary. III. For that the Tribunals below ought to have held that your petitioner had the permanent tenancy in the suit land and that he was protected from being evicted there from in view of Section 7 of the said Act inasmuch as he is in occupation of the suit land as a tenant for more than 12 years without a lease in writing and has got pucca structures thereon.;