Jyotirmay Bhattacharya, J.
1. The legality and/or validity of the show cause notice issued by the Estate Officer, Kolkata Port Trust, under Sub-section 1 of Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 has been challenged by the petitioner in this writ petition. In fact, legality of very initiation of the said eviction proceeding has been challenged by the petitioner on the ground that the Estate Officer has not applied his judicious mind in forming his opinion that the petitioner is an unauthorized occupier of the public premises.
2. Mr. Mitra, learned Senior Counsel, appearing for the petitioner, contended that since formation of such opinion is a condition precedent for initiation of such a proceeding by a quasi judicial authority, the very initiation of such proceeding can be nipped in the bud if judicious mind is not properly applied by the Estate Officer in the process of formation of such opinion.
3. By relying upon a decision of Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. reported in : AIR1999SC22 Mr. Mitra submitted that even quashing of the show cause notice in appropriate cases, is permissible. Mr. Mitra, thus, placed the background of this case under which the said eviction proceeding was initiated and invited this Court to interfere with the said show cause notice, as in his opinion, it is one of such appropriate cases where interference is needed.
4. Short background of this case:
By a registered deed of lease dated 16.3.1992, a long term industrial lease in respect of the land in question in Taratala was granted by the Kolkata Port Trust in favour of the petitioner for a period of 30 years commencing retrospectively from 05.12.1977.
5. During the continuation of the said lease, a notification was issued on 19th September, 1996 prescribing a new schedule of rates for rent. The said notification was challenged in a writ petition being W.P. No. 209 of 1997 and an interim order was passed therein on 11.2.1997 whereby the operation of the said notification was stayed, but in spite thereof rent was demanded from the petitioner at the enhanced rate as per the new schedule in violation of the aforesaid order of stay. Under such circumstances, another writ petition being W.P. No. 8682(W) of 1999 was filed challenging such demand of rent at the enhanced rate.
6. Pending disposal of the said writ petition a notice to quit was served upon the petitioner by the Deputy Land Manager, Kolkata Port Trust as the monthly rent at the enhanced rate, was not paid by the petitioner. Under such circumstances on the prayer of the petitioner, an interim order of injunction was passed in the said writ petition on 10th July, 2000 whereby the Port Trust Authorities were restrained from taking any step against the petitioner unconditionally for a period of four weeks from the date of the order with a rider that if the petitioner deposits the arrear rent, if there be any, with the Port Trust Authority within a period of four weeks and if the monthly rent is paid to the Port Trust Authority for the current period, the interim order will continue. During the continuation of the aforesaid order of injunction the impugned proceeding for eviction was initiated by the Estate Officer on the basis of an application submitted by the Port Trust Authorities on 27th February, 2008 and the impugned show cause notice dated 23rd September, 2008 was served upon the petitioner by the Estate Officer, Kolkata Port Trust. In the said show cause notice the following grounds were specified on which the order of eviction was proposed to be made:
1. Default in payment of rent.
2. Committing breach of covenant by carrying out unauthorized construction on the demised land without having any authority under the law.
7. These are the two grounds on which the said proceeding was initiated by the Estate Officer, after termination of the authorised occupation of the petitioner in the demised land by service of eviction notice dated 23rd December, 1999 upon the petitioner by the Deputy Estate Manager of Kolkata Port Trust.
8. Incidentally, it may be mentioned that in reply to the petitioner's notice whereby threat for initiation of a contempt proceeding against the Port Trust authority was given, the Port Trust authority intimated the petitioner that they will not take any step for initiation of any eviction proceeding against the petitioner. But in spite thereof the Port Trust Authority has not given up the idea of abandoning the said proceeding. On the contrary, they expressed their willingness to proceed with the eviction proceeding by taking additional ground of expiry of lease by efflux of time.
9. Though the petitioner did not concede to such stand of the Port Trust authorities regarding expiry of the lease by efflux of time but, still then, by way of abundant caution, the petitioner approached the Kolkata Port Trust Authority for renewal of its lease. Such request of the petitioner was, however, turned down by the Port Trust Authority.
10. In the said context, the aforesaid writ petition was amended and additional reliefs for quashing of the eviction notice and also for declaration that the lease created under the registered lease dated 16th March, 1992 for thirty years became effective from 16th March, 1992, were claimed.
11. Mr. Mitra submitted that in view of the interim order of injunction passed on 10th July, 2000 as aforesaid, the Estate Officer ought not to have initiated such a proceeding for eviction against the petitioner so long as the said interim order is in operation.
12. Mr. Mitra also contended that since termination of the lease on the ground of breach of covenant for raising construction on the demised premises without obtaining permission from the lessor, was not the foundation of the notice to quit dated 23rd December, 1999, the Estate Officer ought not to have initiated the said proceeding on the ground of such alleged breach of covenant.
13. Mr. Mitra ultimately submitted that since the dispute with regard to the date of commencement of the lease is still at issue in the aforesaid pending writ petition, even no proceeding for eviction on the ground of expiry of the lease by efflux of time should have been initiated, particularly when the said ground was not mentioned in the notice to quit issued to the petitioner.
14. Mr. Mitra, thus, formulated the aforesaid points to substantiate his contention to the effect that the very initiation of the proceeding is bad in law and thus, he submitted that the proceeding itself including the show cause notice should be quashed.
15. Mr. Kapoor, learned Senior Counsel, appearing for the Port Trust Authorities invited the attention of this Court to various provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 to show the elaborate scheme was framed under the said Act for challenging the proposal for such eviction at different stages before the Estate Officer as well as before the Appellate Forum. Mr. Kapoor submitted that formation of opinion by the Estate Officer as contemplated under Section 4 of the said Act is not justiciable inasmuch as, such opinion is not a decision but is merely a personal view which is tentative in nature. According to Mr. Kapoor before issuing notice under Section 4(1) of the said Act, the Estate Officer is required to form a tentative opinion which is different from the order of eviction which can only be passed after following the provisions contained in Section 4(2) read with Section 5 of the said Act which provide for a full-fledged trial of the cause involved in the proceeding. Mr. Kapoor, thus, submitted that the challenge which the petitioner is now seeking to raise in this writ petition can very well be raised by the petitioner in its reply to the show cause notice and in the event such a challenge is raised, the Estate Officer is required to consider the same before passing the ultimate order of eviction. Thus, if the petitioner can establish that the petitioner is not in unauthorized occupation in the premises in question on any ground whatsoever, no order of eviction will be passed by the Estate Officer.
16. Mr. Kapoor, thus submitted that neither formation of opinion is justiciable nor the show cause notice can be challenged in a writ petition, as neither any fundamental right of the petitioner is infringed by issuance of such show cause notice nor could it be said that the authority which issued the said notice was lacking inherent jurisdiction. Following decisions were cited by Mr. Kapoor to support his aforesaid contention:
1. Safari Airways v. the Estate Officers and Ors. reported in : AIR1983Delhi347 .
2. Executive Engineer, Bihar State Housing Board v. Ramesh Kr. Singh and Ors. reported in : AIR1996SC691 .
17. The other decision which was cited by both Mr. Mitra and Mr. Kapoor to show the procedure which is required to be followed by the Estate Officer under various provisions of the said Act before passing an order of eviction in such a proceeding is as follows:
1. New India Assurance Co. Ltd. v. Nusli Neville Wadia and Anr. reported in : AIR2008SC876 .
18. Heard learned Counsel of the parties, considered the materials on record including the citations referred to above.
19. No doubt I agree with the conclusion arrived at by the Hon'ble Delhi High Court in its decision reported in : AIR1983Delhi347 (M/s. Safari Airways v. the Estate Officer and Ors.) to the effect that the formation of opinion for initiation of a proceeding for eviction by the Estate Officer as contemplated under Section 4 of the said Act is different from the ultimate order to be passed in the eviction proceeding and further that since such an opinion is the tentative view of the Estate Officer, no interference should be made with the show cause notice at the very threshold and further that the Estate Officer who issued the said notice is not incompetent to issue such notice, due to lack of jurisdiction, but, still then, this Court finds that here is the case where an eviction proceeding was initiated and a show cause notice was issued in connection therewith by disregarding the order of injunction passed on 10th July, 2000 in W.P. No. 8682(W) of 1999. This Court cannot agree with the submission of Mr. Kapoor that the said injunction order was passed only for securing payment of arrear rent and/or the current rent at the contractual rate. In other words, he wanted to suggest that if the arrear rent and the current rent is paid by the petitioner at the contractual rate, then no step for realization of rent at the enhanced rate as per new schedule, will be taken by the Port Trust Authority during the pendency of the writ petition. Mr. Kapoor, thus, wanted to suggest that the expression 'step' used in the said interim order has nothing to do with any step leading to initiation of any eviction proceeding.
20. Let me now consider as to how far such contention of Mr. Kapoor can be accepted.
21. If the entire order passed on 10th July, 2000 in W.P. No. 8682(W) of 1999 is considered carefully then it will be crystal clear that the said injunction order was passed in the context of issuance of the eviction notice by the Port Trust Authority during the pendency of the said writ petition . This position will be further clarified from the said order itself wherein His Lordship after taking note of the said threat of eviction and after recording the said threat in the order, passed an injunction order restraining the authority from taking any step against the petitioner subject to compliance of the direction regarding deposit of arrear rent if any and the monthly current rent by the petitioner. As such, this Court has no hesitation to hold that 'any step' means and includes not only the step for realization of arrear rent at the enhanced rate as per revised schedule, but also the step for eviction of the petitioner subject however to the compliance of the conditions as laid down therein by the petitioner. Accordingly, this Court holds that without ascertaining as to whether the said injunction order is still in force or alternatively as to whether the said interim order of injunction stood vacated on the petitioner's failure to comply with any of the conditions as mentioned in the said order or not, the Estate Officer ought not to have issued the impugned show cause notice even though he formed an opinion tentatively that the petitioner is in unauthorized occupation in the premises in question as the petitioner's lawful occupation in the said premises was terminated by notice to quit dated 23rd December, 1999.
22. It is rightly pointed out by Mr. Kapoor that notwithstanding the notice to quit dated 23.12.1999 served upon the petitioner, an eviction proceeding can be initiated against the petitioner after expiry of the lease by efflux of time, without service of any notice upon the petitioner, but still then, I hold that no opinion can be formed at this stage even tentatively that the lease has expired by efflux of time before disposal of the earlier writ petition being W.P No. 8682(W) of 1999 wherein the very issue regarding the date of commencement of the lease is involved. Unless the date of commencement of the lease is fixed, the date of expiry of the lease cannot be determined.
23. It is, of course true that such an issue can also be resolved by the Estate Officer in the eviction proceeding, but since similar issue is involved in the writ petition as aforesaid, adjudication of the said dispute regarding the date of commencement of the lease ought not to have been preempted by the Estate Officer. That apart, for avoiding conflict of decision, the Estate Officer should stay his hands from making such exercise, until determination of such dispute by this Hon'ble Court.
24. Before concluding I must mention that since the breach of covenant for raising unauthorized construction without the permission of the lessor, is not the foundation of the notice to quit, the Estate Officer ought not to have formed an opinion that the petitioner is in unauthorized occupation as the petitioner raised such unauthorized construction on the leasehold land in breach of covenant of the lease.
25. Under such circumstances, this Court holds that ordinarily and/or normally the basis for formation of opinion is not justiciable as elaborate safeguards are provided in the Act itself against eviction of any authorized occupier but, still then, in this peculiar facts of this case, this Court cannot refuse to consider the validity of the show cause notice which was issued by the Estate Officer for the solitary reason that such impugned notice was issued by the Estate Officer in utter disregard of the injunction order passed on 10th July, 2000 in the aforesaid writ petition being W.P. No. 8682(W) of 1999. Submission of an application by the Port Trust Authority before the Estate Officer, inviting him to initiate such a proceeding, in my view, is a step towards eviction of the petitioner. Similarly issuance of show cause notice under Section 4 of the said Act by the Estate Officer, is another step towards eviction. As such, initiation of such proceeding, in my view, was made, in utter disregard of the order of injunction as aforesaid.
26. This Court cannot approve the overenthusiasm of the Estate Officer in issuing the show cause notice, with full knowledge of the injunction order as aforesaid.
27. Accordingly, the impugned show cause notice stands quashed. This order, however, will not preclude the Estate Officer from issuing further show cause notice under the said Act in accordance with law, if occasion so arises after the disposal of the aforesaid writ petition.
28. The writ petition, thus, stand disposed of with the aforesaid observation. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities.