Kalidas Mukherjee, J.@mdashThis is an application under Article 226 of the Constitution of India Challenging the impugned show cause notice dated 15.7.2009 in connection with the proceedings vide F.No. 6/209/EO/DO/3522 dated 16.7.2009 issued by the respondent No. 2 under the provisions of Public premises (Eviction of Unauthorised Occupants) Act, 1971, asking the petitioner to show cause as to why order of eviction should not be made.
2. The case of the petitioner, in short, is that it is a firm mainly dealing in manufacture of tyres, rebutton of tyres of the motor vehicles. Pursuant to the invitation of the respondent No. 1, the writ petitioner made an application on 22.9.1999 requesting the respondent to allot a shed at Dollygunj Industrial Estate, with a view to starting the aforesaid business there. The allotment order was passed and the possession was delivered on 8.12.1999 vide letter of the Extension Officer of the Directorate of Industries. After taking over the possession, the petitioner found that the shed in question could not be utilized for running the aforesaid business and in this regard requested the respondent who made the assurance to take every possible step. But nothing has been done in this regard by the respondent No. 1. Thereafter, a notice dated 25.6.2001 was issued to the petitioner by the respondent alleging that the petitioner was defaulter in making payment of rent. Subsequently, the petitioner was served with another letter dated 15.3.2002 by the respondent No. 1 claiming arrears of rent from the petitioner. The respondent No. 2 issued a notice dated 6.1.2004 in connection with the proceedings vide case No. 14 of 2003 under the provision of the Act and the petitioner was directed to appear on 20.1.2004. But the said proceeding could not be given effect to. The respondent No. 2 initiated a proceeding vide No. 11 of 2002 dated 30.10.2003. By the Order No. 247 dated 7.3.2007, the respondent No. 1 informed the petitioner that there was non payment of rent and also contravention of other provisions of the agreement and upon termination of the licence, the petitioner shall be treated as trespasser. The petitioner was again surprised when another notice dated 15.7.2009 was served upon him in connection with the eviction case No. 6 of 2009 started by respondent No. 2 herein. This notice dated 15.7.2009 in eviction case No. 6 of 2009 has been challenged in this writ petition.
3. The respondents have filed the affidavit-in-opposition contending, inter alia, that the writ petitioner is in unauthorized occupation of the shed allotted to him by the Director of Industries, Andaman and Nicobar Administration and the writ petitioner is liable to vacate the said premises as the petitioner did not comply with the requirements which are mandatory under the provisions of law and that the writ petitioner was a defaulter in payment of monthly rent in respect of the shed in question. It has further been contended that the petitioner did not execute the agreement with the authority and kept the shed under lock and key since the year 1999 and the authority finding no other alternative was compelled to approach the respondent No. 2 under the provisions of Public Premises (Eviction of unauthorized occupants) Act, 1971 for getting back the possession of the said shed from the writ petitioner, so that the same can be allotted to some other person and/or firm. It has been stated in the affidavit-in-opposition that that Estate Officer, South Andaman served show cause notice upon the writ petitioner, but, the writ petitioner did not turn up.
4. The learned Counsel appearing for the petitioner submits that the first case bearing No. 11 of 2002 was started and in that case, no adverse order was passed against the petitioner. It is submitted that the second show cause notice in connection with Case No. 6 of 2009 is bad in law, in as much as, the first proceedings ended in favour of the petitioner and no adverse step was taken against him. It is submitted that u/s 3 of the Act, the Estate Officer is to be appointed by name by way of notification and there is nothing to show that such appointment was made in accordance with Section 3 of the Act. It is submitted that for a few months the rent was not paid and the shed in question is not the government premises and it was allotted to the petitioner by virtue of an agreement. It is submitted that it is a private dispute between the parties. It is submitted that the respondents could seek remedy in the civil Court if, they are so advised. It is submitted that since the allotment was made by virtue of agreement between the parties, it would not come within the purview of the Public Premises (Eviction of unauthorized occupants) Act, 1971.
5. The learned Counsel appearing for the respondents submits that the shed in question was allotted to the petitioner and the Director of Industries is a recorded tenant of the property. It is submitted that the lands belong to the government and only the structure was allotted to the petitioner on the basis of agreement. The learned Counsel has referred to the order dated 7.11.2007 whereby the licence was terminated under Clause 12 of the Andaman and Nicobar Islands (Industrial Estate) Rules, 1976. It is contended that the writ petitioner has not challenged the termination order and after issuance of the order terminating the licence, the possession of the petitioner has become illegal. It is submitted that the earlier case No. 11 of 2002 was started without issuance of termination order and, under such circumstances, it was not proceeded with. It is submitted that the show cause notice cannot be the subject matter of challenge in this writ petition. It is contended that the proceedings have not yet reached finality and the remedy of the petitioner lies in appeal before the District Judge u/s 9 of the Act. It is submitted that since the order of allotment and taking over possession, the petitioner did not pay any amount of rent for the occupation of the premises in question.
6. It appears from the papers annexed with the affidavit-in-opposition that the land in question belong to the Industries Department and the Director of Industries is the recorded tenant. Admittedly, the petitioner applied for allotment and the respondent No. 1 made the allotment followed by delivery of possession on 8.12.1999 as per Annexure R-5 to the affidavit-in-opposition. From Annexure R-5 to the affidavit-in-opposition it appears that the shed has been allotted on "as is basis" and the initial repairs and further maintenance of the shed was the responsibility of the licensee at their cost. The contention of the writ petitioner in this regard is that after taking over possession, it was found that the premises in question was not fit for running the business and after making requests to the respondent No. 1, no step was taken. But the fact remains that the allotment order was made in favour of the writ petitioner and the possession of premises No. A-12 (1000 sqfts, at Industrial Estate, Dollygunj) was delivered to the writ petitioner.
7. It appears from the letter dated 25.6.2001 as per Annexure P-3 to the writ petition that the show cause notice was issued by the respondent No. 1 to the petitioner stating that on inspection of the Industrial Estate by the Officers of the Directorate of Industries on various occasions it was noticed that the shed was found closed and after lapse of 1 1/2 years the petitioner did not make any effort to shift the unit from the existing place to the allotted shed in violation of Clause 5 of the agreement. It was further alleged therein that an amount of Rs. 6,371/- was outstanding towards the payment of rent in respect of the said premises. The petitioner was asked to explain as to why the allotment of the shed would not be cancelled. By a letter dated 15.3.2002 as per Annexure P-4 to the writ petition, the petitioner was asked to hand over the physical possession of the shed to the department and that the sum of Rs. 13,875/- was due as arrears of rent. Another show cause notice was also issued to the writ petitioner on 30.10.2003 asking the petitioner to make payment of rent. Thereafter, on 7th March, 2007, the order No. 247 was issued by the Director of Industries terminating the licence in exercise of the power under Clause 12 of the A&N Islands (Industrial Estate) Rules, 1976. Thereafter, the impugned notice dated 15th July, 2009 was issued u/s 4(1) of the Act asking the petitioner to show cause as to why the order of eviction should not be made.
8. In this writ petition, it has to be considered whether there was any breach of the provisions of Act by the respondents and/or there is any violation of the principles of natural justice. From the discussion made above, it is clear that several notices were issued to the petitioner asking for payment of arrears of rent. Adequate opportunity was given by the respondents to the petitioner for complying with the requirements of the notice. But there is nothing to show that the rent was paid by the writ petitioner. Having regard to all the papers annexed to the writ petition and the affidavit-in-opposition, I find that there is no violation of the principles of natural justice. The petitioner was given adequate opportunity to make payment of rent and ultimately the licence was terminated by virtue of the provision of Rule 12. Rule 12 provides for termination of licence. It runs as follows:
12. Termination of licence: if the licensee fails to perform the conditions on which the shed is licensed out or commits breach of one or other of the terms of the agreement or of these rules, the Secretary (Industries) may order the termination of the licence. No termination of licence before the expiry of the period of licensee shall be permissible except as mentioned above or by mutual consent of the Secretary (Industries) and the party after one month''s notice is given by either side. The decision of the Secretary (Industries) as to the breach of terms shall be final. The licensee shall dismantle and remove all temporary structures or additional structures and hand over the peaceful possession of the building as it was at the time of occupation on the termination of the licence.
9. The respondents allege that the petitioner has not shifted to the allotted premises and there was continued non payment of rent which were in violation of the terms of the agreement. Rule 12 specifically provides that if the licensee fails to perform the conditions on which the shed is licensed out or commits breach of one or other of the terms of the agreement, in that case the licence can be terminated. It is evident that prior to issuance of the order of termination of licence several notices were issued to the writ petitioner drawing his attention to the breach of the conditions of the agreement. Under such circumstances, I find that there was no violation of the provisions of the Act or Rules. The points which the petitioner has raised in this appeal are not entertainable in this writ petition. The remedy is available in the form of appeal u/s 9 of the Act.
10. Having regard to the materials on record and after giving anxious consideration to the submissions made by the learned Counsels, I find that it is not a fit case for the issuance of the writ of mandamus. In the result, the writ petition fails and the same stands dismissed. There will be no order as to costs.
11. Urgent Photostat certified copy, if applied for, be made over to the parties as early as possible.
