Anil K. Sen, J.
1. This is an application under Article 227 of the Constitution at the instance of Union of India (hereinafter referred to as the petitioner) and it arises out of a proceeding for eviction under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the said Act of 1971).
2. On September 19, 1963, the petitioner purchased premises Nos. 13, 13/1, 13/2 and 13/3, Old Court House Street and Nos. 1. 2 and 2/1, Mangoe Lane, Calcutta. The opposite party herein M/s. Manton Company Ltd. (hereinafter referred to as the opposite party) who was a tenant in occupation of premises Nos. 1, 2 and 2/1', Mangoe Lane and portions of premises Nos. 13, 13/1, 13/2 and 13/3. Old Court House Street, since before such purchase by the petitioner became a tenant under the petitioner on attornment,
3. By a notice to quit dated April 22, 1964, the petitioner determined the tenancy in favour of the opposite party with the expiry of the month of May 1964 and called upon the opposite party to quit, vacate and deliver peaceful possession of the premises in their occupation. The opposite party having failed to comply with the notice, the petitioner on June 10, 1964, started a proceeding for eviction under the provisions of Public Premises, (Eviction of Unauthorised Occupants) Act, 1958. The opposite party challenged the said proceeding in a writ petition which ultimately succeded when that Act of 1958 was struck down on the ground that its provisions were violative of Article 14 of the Constitution. It was so held on the authority of the Supreme Court decision in the case of Northern India Caterer v. State of Punjab, : 3SCR399 . The judgment of this court is reported in : AIR1968Cal560 .
4. In the meantime, the Act of 1958 was amended by Act XXXIII of 1968 for the purpose of removing the offending elements in that Act. After such amendment a fresh proceeding for eviction was initiated against the opposite party on June 25, 1'970, by issue of a fresh show causenotice under Section 4(1) of the Act of 1958 so amended. The Act of 1958 having been repealed thereafter by the said Act of 1971 (that is, Public Premises (Eviction of Unauthorised Occupants) Act, 1971) the proceeding so initiated was continued as one initiated under the said Act of 1971 in view of the provision of S, 20 of the said Act of 1971'.
5. The validity of such a proceeding was challenged again by the opposite party in a writ petition in this court which was registered as C. R, 4627 (W) of 1970 on several grounds including the ground that the Act is ultra vires the Constitution, that the proceeding as initiated is without jurisdiction and that the opposite party not being in unauthorised occupation no proceeding under the provisions of the said Act of 1971, could have been validly initiated against them. That Rule came up for hearing before a learned single Judge of this court who by his order dated July 31, 1973, discharged the Rule by upholding the validity of the Act and the initiation of the proceeding thereunder relying primarily upon the later Supreme Court decision in the case of Hari Singh v. Military Estates Officer, Delhi, : 1SCR515 . The learned single Judge having held that the Estates Officer having jurisdiction to initiate the proceeding under Section 5(1) of the said Act of 1971, left the question whether the opposite party is in unauthorised occupation or not to be decided by the Estates Officer in the proceeding so initiated. The opposite party preferred an appeal being F, M. A. 756 of 1973 under clause 15 of the Letters Patent but that appeal having failed, the decision of the learned single Judge was affirmed on Sept. 10, 1975. The judgment in the appeal is reported in : AIR1976Cal333 .
6. After all these proceedings in this court when the interim injunctions were vacated and the proceeding initiated under the provisions of the said Act of 1971 was remanded for disposal on its merits, the Estates Officer served due notices upon the opposite party. They, however, did not appear and on the materials produced by the petitioner the Estates Officer by his order dated Mar. 18, 1976, held the opposite party to be in unauthorised occupation of the disputed premises and directed their eviction under Section 5(1) of the said Act of 1971'. The opposite party preferred anappeal under Sec, 9 of the said Act of 1971 against that order before the learned Chief Judge, City Civil Court. Calcutta, which was Miscellaneous Case No. 1 of 1976. The learned Chief Judge has allowed the said appeal and has set aside the order of eviction passed by the Estates Officer by an order dated Sept. 10, 1981. Relying upon the decision of the Supreme Court in the case of Rajkumar Divendar Singh v. State of Punjab, : 2SCR166 and on an un-reported Bench decision of this court in the case of Rajput Singh v. Union of India (F, M. A. 760 of 1973 disposed of on 10-8-1981), the learned Chief Judge held that since the opposite party was a tenant in occupation of the disputed premises from before it became public-premises by purchase by Union of India, their occupation of the disputed premises does not come within the mischief of the said Act of 1971, and as such, no proceeding thereunder as initiated could have been validly initiated. According to the learned Chief Judge if the opposite party is to be evicted it must be so done by a suit and not by a proceeding under the provisions of the said Act of 1971. The learned Chief Judge incidentally further held that the order of the Estates Officer is not based on any finding that the opposite party is in unauthorised occupation and he further held that when the show cause notice issued on June 25, 1970, purported to terminate the tenancy since Sept. 1, 1963, that is even prior to the purchase by Union of India there could be no valid determination of the tenancy. The order of the Estates Officer having been thus set arise, the petitioner has now moved this court with an application under Article 227 of the Constitution referred to hereinbefore.
7. Mr. Kabir appearing in support of this application has substantially raised two points. In the first place it has been contended by Mr. Kabir that this court in the writ proceeding having upheld the validity of the proceeding as initiated on the show cause notice under Section 4(1) of the said Act of 1971, it was not open to the learned Chief Judge to hold that no proceeding under the said Act of 1971 could have been validly initiated on such ground as has been asigned by the learned Chief Judge. Secondly it has been contended by Mr. Kabir that even after the decision of the Supreme Court in the case of Jain Ink Manufacturing Company v. L. I. C. of India, : 1SCR498 in which the Supreme Court had explained and distinguished its earlier decision in the case of Rajkumar Divendar Singh (supra), the learned Chief Judge could not have held that only because the opposite party was a pre-existing tenant in occupation, they cannot be in unauthorised occupation even though the authority for the occupation in their favour had been duly determined by a notice to quit. Mr. Kabir has further contended that the Eatates Officer recorded his finding that the opposite party is in unauthorised occupation in the very first part of the order itself which has been overlooked by the learned Chief Judge and he has further contended that read as a whole the notice establishes clearly that the tenancy was determined with the expiry of May 1964, and the date September 1, 1963, in the last portion of the notice is clearly and apparently a misprint which does neither affect the notice nor render it ambiguous in any manner.
8. All the points raised by Mr. Kabir have been contested by Mr. Dutt who appears to support the order impugned on behalf of the opposite party. Strong reliance is placed by Mr. Dutt on the unreported Bench decision of this court in F.M.A. 760 of 1973 referred to and relied on by the learned Chief Judge in contending that even if erroneous the said decision forecloses the material issue as to whether the opposite party is in unauthorised occupation of the disputed premises or not. According to Mr. Dutt in that decision when this court had held a sub-tenant under the present opposite party to be a person not in unauthorised occupation notwithstanding the very same notice to quit, it must necessarily be held that the superior interest of the tenant, namely, the present opposite party cannot be that of an unauthorised occupant. According to Mr. Dutt in the absence of any independent ground a sub-tenant under a tenant who had become a person in unauthorised occupation by determination of the tenancy in his favour cannot be held to be otherwise. Mr. Dutt, however, felt much difficulty in supporting the decision of this court in the said F.M.A. 760 of 1973 and in particular the reasons given therein in support of the conclusion which was obviously rendered in total oversight of the decision of the Supreme Court in the case of Jain Ink Manufacturing Company (supra). According to Mr. Dutt, the petitioner not having challenged the said decision in any further appeal is now bound thereby irrespective of whether it is otherwise a correct decision or not. Mr. Dutt has next contended that the issue as to whether the opposite party is a person in unauthorised occupation or not having been left open in the writ proceeding, the decision therein based on other grounds could not have closed the issue either befora the Estates Officer or before the learned Chief Judge as contended by Mr. Kabir, Lastly, it has been contended by Mr. Dutt that the notice to quit having been found to be invalid, the learned Chief Judge was right in setting aside the order of eviction passed under Section 5(1) of the said Act of 1971'.
9. Before we proceed to consider the other points raised by the counsel for the respective parties, let us consider how far the learned Chief Judge is con-rect in his view that the opposite party having come to occupy the disputed premises before the said premises were purchased by the petitioner, they cannot be said to be in unauthorised occupation thereof notwithstanding the subsequent determination of the authority for the occupation by the notice to quit. We think this question is no longer res integra in view of the Supreme Court decision in the case of Jain Ink Manufacturing Company : 1SCR498 (supra). It is rather unfortunate that the attention of the learned Chief Judge as also that of the learned Judges of this Court who decided F.M.A. 760 of 1973 was not drawn to the said decision of the Supreme Court in the case of Jain Ink Manufacturing Company (supra). In this decision the Supreme Court was interpreting the provisions of the said Act of 1971 which is now under consideration and the Supreme Court clearly explained and distinguished their own observations in the case of Rajkumar Divendar Singh : 2SCR166 (supra)' wherein the Act under consideration was a different Act. It was pointed out that those observations were made having regard to the particular terms of the Punjab Act thereunder consideration which made entry into possession in the public premises unauthorised if it was so made otherwise than under and in, pursuance of any allotment, lease or grant. Whereas in the Act now under consideration a person who occupies anypublic premises without any authority for such occupation or even continues to occupy the same after such authority had been determined is said to be in unauthorised occupation in view of the definition clause Section 2(2)(g) of the said Act of 1971. Thus there exists material difference between the provisions of the two Acts. Though the attention of the learned Chief Judge was drawn to such difference, he failed to appreciate the same and wholly misread the statute in observing that there is no material difference between these two statutes. As a matter of fact dealing with the particular statute the Supreme Court laid down that what is germane for the purpose of interpretation of Section 2(2)(g) of the said Act of 1971 is whether or not the person concerned was in occupation of the public premises when the said Act came into force irrespective of how and when he came to occupy the same. Thus, we hold that the principal ground on which the learned Chief Judge reversed the decision of the Estates Officer is clearly misconceived and is based upon misreading of the material provision of the said Act of 1971. Such a decision, therefore, can hardly be sustained on such a ground.
10. Next we proceed to consider the other points raised before us. While Mr. Kabir relies upon the previous decision inter partes in the writ proceeding and contends that in view of such a decision, it was no longer open to the opposite party to claim that the impugned proceeding based on show cause notice under Section 4(1) of the said Act was not validly initiated, Mr. Dutt contests such an objection and in his turn contends that rightly or wrongly this court in F.M.A. 760 of 1973 having held the subtenant not to be a person in unauthorised occupation, the tenant/opposite party can no longer be claimed to be so -- the petitioner being still bound by that decision. We propose to consider these two contentions separately.
11. In the writ petition the opposite party challenged initiation of the proceeding by issue of a notice under Section 4(1) of the said Act of 1971. Though the principal ground of attack was that the Act was ultra vires the Constitution, other grounds disputing the jurisdiction of the Estates Officer to initiate such a proceeding were also raised. At the hearing, as it now appears, the onlypoint urged was with regard to the constitutional validity of the Act. That point having been decided against the opposite party, this court left the issue, as to whether the opposite party was in unauthorised occupation or not, to be decided in the proceeding under the Act. According to Mr. Kabir what was left to be so decided was whether there had been a valid determination of the authority to occupy. The point that was raised before the learned Chief Judge, namely, under the definition clause the opposite party would not be a person in unauthorised occupation because they never came into occupation after the premises became public premises by purchase by the petitioner could have been taken in the writ petition and if so taken the notice under Section 4(1) of the said Act of 1971 would have been set aside for reasons as now assigned by the learned Chief Judge-Even if such a point was not raised, according to Mr. Kabir, such a point must be deemed to have been concluded constructively by the decision in the writ petition. We have carefully considered this point of Mr. Kabir and in our view there may be some substance in such a contention but when for reasons already given we have held that there is no substance in the objection that the opposite party having come to occupy the premises prior to the same becoming public premises cannot be considered to be a person in unauthorised occupation within the meaning of the definition clause, the further point with regard to foreclosing of such an issue raised by Mr. Kabir becomes academic.
12. So far as the point raised by Mr. Dutt is concerned, it appears to us that it rests upon an inadvertent recital of fact in the judgment of this Court in F.M.A. 760 of 1973 when it was stated therein that the appellant in that appeal, Rajput Singh was a sub-tenant under the present opposite party. We called for the original records of that proceeding and it appears to us that in the writ petition moved by Rajput Singh he claimed himself to be a tenant under the vendors of the petitioner and, as such, after the purchase under the petitioner and not under the present opposite party. To quote the first paragraph of the writ petition of the said Rajput Singh he asserted:
'At all material times your petitioner has been in occupation in respect of aportion of premises No. 13, Old Court House Street, Calcutta under respondent No. 1 (Union of India) at a monthly rental of Rs. 300 payable according to English calendar for the purpose of carrying on business there. Originally your petitioner was a tenant under Messrs. Osier Properties Limited, the predecessor-in-interest of the present landlord, the Union of India,'
His further case in the writ petition was that while the tenancies of other tenants were determined by notice issued in July 1963, so far as he is concerned, he did not receive any such notice so that there was no determination of his authority to occupy the premises in his occupation.
13. Hence, the basic foundation for the contention of Mr. Dutt is lost because the appellant in that appeal having claimed rights independent of the present; opposite party even if he had been adjudged to be a person not in unauthorised occupation, that would not stand in the way of adjudging on merits the issue as to whether the opposite party is in such unauthorised occupation or not, more so when in the decision inter partes this Court directed the Estates Officer to decide that issue.
14. That apart, in the facts and cir-cumstances we are unable to hold that the decision in that case which is not inter partes and which was rendered ex-parte against the petitioner as respondent to that appeal would foreclose the issue raised in the present proceeding. It must be remembered that the present opposite party started a writ proceeding challenging the proceeding as initiated on a show cause notice under Section 4(1) of the said Act of 1971. That application failed up to the appellate stage and this court upholding the initiation of such proceeding directed its adjudication on its merits. Such an order made inter partes is equally binding upon the parties to that writ proceeding and only because in a separate proceeding not inter partes this court had upheld the claim of a third party who is in occupation of another part of the same house to be a person not in unauthorised occupation, that decision cannot override the express directions contained in the decision inter partes,Moreover, in F. M. A. 760 of 1973, the respondent Union of India had not appeared and the court did not even incidentally go into the question whetherthe present opposite party was a person in unauthorised occupation or not. An argument built upon an inadvertent observation that the appellant therein was a sub-tenant under the present opposite-party can hardly be supported. Hence, we find no substance in the point raised by Mr. Dutt in this regard.
15. Before we conclude we must deal with the other two reasons assigned by the learned Chief Judge in support of his order, In the first place, he has observed that the Estates Officer had not recorded any finding that the opposite party is in unauthorised occupation of the disputed premises. Having read the order of the Estates Officer carefully we are unable to sustain such a criticism of the said order. As a matter of fact, the order starts on the following terms: 'Whereas I, the undersigned, am satisfied for the reasons recorded below that Messrs. Manton & Company Limited are in unauthorised occupation of the premises specified in the Schedule below.' Then he records the reasons and in the ultimate paragraph incorporates his order for eviction. Dealing with the reasons he considers the notice dated April 22, 1964, by which the tenancy in favour of the opposite party was determined with the expiry of May 1964. Such being the order of the Estates Officer it would not be fair to say that he had failed to record a finding that the opposite party is in unauthorised occupation of the public premises.
16. So far as the validity of the notice determining the tenancy is concerned, it would appear from the notice on record dated April 22, 1964, that the tenancy was duly determined by such a notice with effect from the expiry of the month of May, 1964. Service of such a notice and sufficiency thereof is not disputed. As a matter of fact, the opposite party did not appear to contest the proceeding either. On the notice to quit itself we find no defect. The defect referred to by the learned Chief Judge is in the show cause notice issued under Section 4(1) but that defect in our opinion does not affect the proceeding in any manner. In this show cause notice it has been expressly and clearly stated that the tenancy in favour of the opposite party in respect of the disputed premises was duly determined on the expiry of the last day of May 1964 by a notice dated22-4-64 issued on behalf of the President of India, by the Deputy Director of Estates and Ex-Officio Under Secretary to the Government of India, Ministry of W.H. & R., Directorate of Estates. New Delhi. It was further stated that the opposite party was directed to quit and vacate the public premises by the end of May, 1964 but he having failed and neglected to do so became a person in unauthorised occupation of the public premises. Having said all these clearly in the earlier part of the show cause notice there has been an. unfortunate mis-print towards the end when it was said 'As aforesaid your tenancy stands determined with effect from 1-9-63.' It is obvious that instead of writing 1-6-64 there had been an in advertant error. In our view, however, the notice must be read as a whole and as a matter of fact the very sentence quoted hereinbefore begins with the words 'as aforesaid' thereby referring to what had been said earlier. What had been said earlier we have referred to hereinbefore and there it had been stated very clearly that the opposite party became a person in unauthorised occupation on the determination of tenancy in their favour on the expiry of the month of May 1964, when he failed and neglected to deliver vacant possession of the public premises. This error in our view has nothing to do with the validity of the determination of the tenancy and does not either affect the proceeding for eviction under the provisions of the said Act of 1971.
17. For reasons aforesaid, we are of the opinion that the order of the learned Chief Judge based primarily upon misconception of the legal position and misinterpretation of the material provision of the statute has resulted in material failure of justice when a proceeding for eviction initiated in the year 1964 culminating in an order for eviction dated March 18, 1976, had been set at naught by the order of the learned Chief Judge impugned in the present application under Article 227 of the Constitution.
18. This application, therefore, succeeds on contest and the impugned appellate order dated Sept, 10, 1981, passed by the learned Chief Judge, City Civil Court, Calcutta, being set aside the order of the Estates Officer dated March 18, 1976, is restored.
19. As prayed for by Mr. Roychowdhary on behalf of opposite party, letoperation of this order remain stayed for a period of three months from date.
S.N. Sanyal, J.
20. I agree.