IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19-11-2010
CORAM :
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
W.P. No. 12255 of 2010
and
M.P. No. 2 of 2010
Smt. Satvinder Kaur
Proprietrix
Helmet Paradise
No.124, General Patters Road
Mount Road
Chennai 600 002 .. Petitioner
Versus
1. The L.I.C. of India
Southern Zonal Office and the
Estate Officer
L.I.C. of India
Chennai 600 002
2. The Estate Officer
L.I.C. of India
LIC Building
No.102, Anna Salai
Chennai 600 002
3. The Appellate Authority
Principal Judge
City Civil Court
Chennai 600 104 .. Respondents
Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari calling for the records of the second respondent made in Petition No. 28 of 2004, dated 10.03.2005 as confirmed by the third respondent, the Appellate Authority in its order dated 26.04.2010 made in C.M.A. No. 47 of 2005 on the file of the Principal Judge, City Civil Court, Chennai and quash the same as illegal.
For Petitioner : Mr. R. Thiagarajan
For Respondents : Mr. M.B. Gopalan for RR1 and 2
ORDER
By consent of counsel for both sides, the writ petition itself is taken up for final disposal.
2. The petitioner, who claims to be a lawful tenant under the respondents 1 and 2/corporation in respect of the property at No.124, General Patters Road, Mount Road, Chennai 600 002, has come forward with this writ petition challenging the order dated 10.03.2005 made in Petition No. 28 of 2004 on the file of the second respondent, which was confirmed by the third respondent/appellate authority in its order dated 26.04.2010 in C.M.A. No. 47 of 2005.
3. According to the learned counsel for the petitioner, the petitioner is a tenant in respect of the subject matter of the property for more than two decades. While so, the first respondent initiated proceedings under Section 5 (1) of the Public Premises (Eviction and Unauthorised Occupants) Act, 1971 (hereinafter referred to as Act) against the petitioner by filing a petition No. 28 of 2004 before the second respondent herein. Prior to filing of such a petition, the first respondent issued a termination notice dated 27.07.2004 to the petitioner on the ground that the petitioner has committed default in payment of rent, interest and other charges from January 2003 and after issuance of the termination notice, the petitioner has cleared the arrears of rent. According to the learned counsel for the petitioner, even the alleged default mentioned in the termination notice is not correct in view of the fact that after the termination notice, the entire arrears have been paid and when once the arrears is paid and received by the corporation, the notice of termination does not have any force. Furthermore, in the termination notice dated 27.07.2004, no reason at all has been mentioned by the first respondent for invoking the provisions of the Act. Further, subsequent to the notice of termination dated 27.07.2004, the petitioner has been paying the rents regularly and when once the rent was paid and also accepted by the first respondent, it is not open to the first respondent to issue the notice to quit. The learned counsel for the petitioner would further contend that the second respondent, without considering the aforesaid aspects has erroneously allowed the petition filed by the first respondent. Aggrieved by the same, the petitioner has filed an appeal before the appellate authority, the third respondent herein mainly on the ground that no reason at all has been assigned by the first respondent to invoke the provisions of the Act and there is no need or necessity to issue the notice of termination dated 27.07.2004. It was further contended that the earlier default in payment of rent may not be a ground for evicting the petitioner when once the petitioner has paid the rents subsequently and it was also received by the corporation. According to the learned counsel for the petitioner, the third respondent/appellate authority, without considering the above said facts has erroneously dismissed the appeal filed by the petitioner, hence, the present writ petition has been filed.
4. The learned counsel for the first respondents 1 and 2, relying on the counter affidavit of the first respondent, would contend that the petitioner is occupying the ground floor of the property where she is carrying business in the name and style of ‘Helmet Paradise’. The petitioner was not regular in making the rent. Earlier, for default in payment of rent, Petition Nos. 1 and 2 of 1993 were filed for eviction against the petitioner, but the second respondent showed indulgence by ordering that the arrears shall be paid in five monthly instalments from June 1994, by an order dated 13.06.1994. Thus, the proceedings initiated against the petitioner were dropped. Even thereafter, the petitioner committed default which resulted in filing of Petition No.5 of 1998 before the second respondent and this time also, indulgence was shown and the proceedings were dropped on 14.08.2002. Further, the petitioner was not holding any subsisting lease deed and the tenancy was on a monthly basis and such tenancy could be terminated by giving 15 days notice as per Section 106 of the Transfer of Property Act. Once a termination notice is issued, as contemplated under Section 2 (g) of the Act, the petitioner has to be construed as an unauthorised occupant. Inspite of the notice, the petitioner did not vacate the premises, hence, the first respondent has filed a Petition before the second respondent seeking eviction of the petitioner. The second respondent, after giving sufficient opportunity to the petitioner passed the order of eviction as contemplated under Section 5 (1) of the Act, which was also appealed against by the petitioner before the third respondent. The appellate authority also, after hearing both sides and after elaborate discussion, confirmed the order passed by the original authority. In any event, the contention of the appellant that the notice to quit is invalid since no reason is assigned therein cannot be legally sustained because under Section 106 of the Transfer of Property Act, there is no need or necessity to assign reason while seeking eviction of an unauthorised occupant. Merely because no reasons were assigned by the original authority and that the petitioner also paid the arrears of rent subsequent to the notice of termination, it will not take away the right of the corporation to seek for eviction. When once the tenancy is terminated, then the petitioner will have no right to remain in possession of the premises. The moment the termination notice is issued, dehors any reason, the tenancy terminates after 15 days from the date of such notice. In support of this contention, the learned counsel for the respondents 1 and 2 relied on the decision of the Honourable Supreme Court reported in (Jiwan Dass vs. Life Insurance Corporation of India and another) 1994 Supp (3) Supreme Court Cases 694 wherein it was held that a notice issued under Section 106 of the Transfer of Property Act does not contemplate giving any reason for terminating the tenancy. In that case, Life Insurance Corporation of India was the respondent and therefore, the contention of the counsel for the petitioner has to be rejected and the writ petition has to be dismissed.
5. Heard both sides. Section 2 (g) of the Public Premises Act defines ‘unauthorised occupant’. Section 2 (g) of the Act clearly lays down that ‘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 of any other mode of transfer) under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever. In this case, the petitioner was declared as an unauthorised occupant by the respondents 1 and 2 by issuing the termination notice dated 27.07.2004 giving 15 days time to the petitioner to quit and deliver vacant possession of the premises. When once the petitioner was characterised as an unauthorised occupant of the public premises by virtue of a notice to terminate her tenancy, the authorities under the Act need not assign any reason therefor. This position of law is reiterated in the decision of the Honourable Supreme Court relied on by the counsel for the respondents 1 and 2 reported in (Jiwan Dass vs. Life Insurance Corporation of India and another) 1994 Supp (3) Supreme Court Cases 694. Therefore, the contention of the counsel for the petitioner that no reason was assigned in the notice of termination dated 27.07.2004 and therefore it is invalid, cannot be accepted. The termination notice either under the Public Premises Act or under the Transfer of Property Act need not contain any reasons for seeking eviction.
6. A perusal of the notice of termination dated 27.07.2004 would indicate that the first respondent has clearly indicated the period of default committed by the petitioner. In and by the said notice, it is categorically stated that the petitioner has to vacate premises within 15 days from the date of receipt of the notice and payments hereafter, if any received in respect of the above premises will be accepted as compensation without prejudice to the termination notice and absence of these words shall not amount to waiver of this notice. Therefore, merely because the petitioner had paid rent after the termination notice dated 27.07.2004, it will not constitute a waiver or it will not confer any right to the petitioner to contend that there is no default in payment of rent, much less wilful default. The amount was received, after termination notice, only towards damages for use and occupation and it will not amount to waiving the right of the corporation to take possession of the premises.
7. It is pertinent to point out that after the issuance of the termination notice dated 27.07.2004, the petitioner had paid rent, but receipt was issued without prejudice to the rights of the corporation. In the receipts, it is clearly mentioned that the rent is being received only for damages for use and occupation’. The receipt was also marked as Ex.P4 dated 17.08.2004 and another receipt dated 20.08.2004 as Ex.P5 before the appellate authority. The petitioner would contend that in those receipts, the word “without prejudice” is mentioned but the word ‘for use and occupation towards damages’ is not mentioned. In this connection, the appellate authority relied on the decision reported in (Mulla Gulam Ali and Safiabai Trust vs. M/s. Delip Kumar) (2001) 2 MLJ (SC) and (M. Muthu and others vs. Arulmighu Sundareswaraswamy Temple) (2001) 1 MLJ 438 to conclude that mere acceptance of rent after the notice of termination will not amount to waiver on the part of the corporation. I am in agreement with the conclusion arrived at by the appellate authority and consequently the contention of the petitioner that subsequent rent received by the corporation would amounts to waiver is rejected.
8. The appellate authority, taking into consideration the factual as well as legal aspects has categorically given a finding and accepted the order passed by the original authority to evict the petitioner after characterising the petitioner as a wilful defaulter and an unauthorised occupant as per the definition contemplated under Section 2 (g) of the Act. Therefore, in the facts and circumstances of the case, the petitioner cannot take the last straw after having lost her claim before the original authority as well as the appellate authority and both the authorities have categorically found that the petitioner has committed default in payment of rent and invited the eviction. Under those circumstances, the petitioner cannot be permitted to harp upon the public premises to agitate her right, which was not in existence and it is nothing but a measure taken by the petitioner/unauthorised occupant to squat over the property.
9. The petitioner made a last attempt stating that she has been running the business for more than two decades and that her whole livelihood will be lost. On earlier two occasion, after issuance of termination notice, the original authority pardoned the petitioner and shown leniency on the assurance that she is prepared to pay higher rent and the consequential proceedings were dropped. Thereafter also, the petitioner again committed default and she was ranked as an unauthorised occupant. When once the petitioner was ranked as an unauthorised occupant, merely because she is running the business for a long time, it cannot be a reason to enure the petitioner with a largesse. The termination notice has been issued declaring the petitioner as an unauthorised occupant and the original authority has followed all the mandatory Rules and Regulations before issuing the notice of termination, which was also rightly upheld by the appellate authority. I do not find any reason to interfere with the well considered decision of the original authority as well as the appellate authority.
10. In the result, the writ petition is dismissed. No costs. The petitioner is given two months time to vacate the premises subject to the condition that she files an affidavit of undertaking before this Court within ten days from today that she would vacate and handover vacant possession of the premises to the respondents 1 and 2 within sixty days. If such an affidavit of undertaking is not filed within the time stipulated, the respondents 1 and 2 are at liberty to proceed against the petitioner in accordance with law notwithstanding the time granted to the petitioner. Consequently connected miscellaneous petition is closed.
rsh
To
1. The L.I.C. of India
Southern Zonal Office and the
Estate Officer
L.I.C. of India
Chennai 600 002
2. The Estate Officer
L.I.C. of India
LIC Building
No.102, Anna Salai
Chennai 600 002
3. The Appellate Authority
Principal Judge
City Civil Court
Chennai 600 104