- (1.) By this writ petition a challenge has been made to the order passed by the Estate Officer so as the order on appeal by Additional District and Sessions Judge No. 5, Jaipur City, Jaipur, pursuant to the provisions of Rajasthan Public Premises (Eviction of unauthorized occupants) Act, 1964 (hereinafter referred to as 'the Act of 1964').
(2.) Learned Counsel for the Petitioner submits that no formal lease agreement was executed by the parties, thus the lease was oral and was terminable as per the Provisions of Section 106 of the Transfer of Properly Act, 1882, (for short 'the Transfer of Property Act'). No termination was made by the Respondents before initiation of the proceedings by the Estate Officer. In absence of the termination of the lease, the Petitioner can not be said to be an unauthorized occupant so as to invoke provisions of the Act of 1964. Even while initiating the proceedings by the Estate Officer, requirement of Section 4 of the Act of 1964 was not adhered to by the Estate Officer. He was required to form an opinion apart from setting of the grounds for issuance of the notice. In the notice at Annexure 3 dated 16.4.2001, neither opinion of the Estate Officer exists nor the grounds for eviction. The Provisions of Section 4 of the Act are mandatory, hence in absence of the compliance of mandatory provisions, subsequent proceedings are to be declared illegal.
(3.) Even otherwise, it is a matter where a notice to vacate the premises was given on 24.10.1990, where proceedings under the provisions of the Act of 1964 have been initiated after lapse of eleven years. In between, the Respondents were accepting rent without protest. Looking to the aforesaid also the Petitioner cannot be said to be an unauthorized occupant for the intervening period. Reference of Section 111 of the Transfer of Property Act has also been given to show that determination of lease comes in effect when a notice is served under Section 106 of the Transfer of Property Act. Since no notice was given to the Petitioner before initiation of proceedings by the Estate Officer, Section 111 of the Transfer of Property Act did not come in play and accordingly also Petitioner can not be said to be an unauthorized occupant as defined under the Act of 1964. All these issues were not considered by the Court below. This is more so when evidence was not properly led by the State Govt. In the back ground aforesaid, the impugned orders deserve to be quashed and set-aside. To support the arguments, learned Counsel for the Petitioner has placed reliance on a judgment of New India Assurance Co. Ltd. v. Nusli Neville Wadia and Anr., 2008 AIR(SC) 876. Therein the issue regarding application of mind by the Estate Officer for forming an opinion was considered and decided. Reference of Para Nos. 16, 24 and 34 of the said judgment has been given.;