HIGH COURT OF CHHATTISGARH AT BILASPUR w.P. No. 5814(2000 - PETITIONER RESPONDENW Smt Daljeet Kour VERSUS Estate 0$oer and Others P 1. ost for Qronouncement of order on 20(09z20 1 T.P Sharma Judge HIGH COURT OF CHHATTISGARH AT BILASPUR ‘ W.P. No. 5814(2000 PETITIONER Smt. Daljeet Kour ‘aged about 59 years W/o Late Ranvecr Singh R/o 25, Malviva Nagar, Burg (M.P.). ' Tenant- Plot No. sc-fsi Lirik Road, Camp Np. 2, Bhilai Tab 8r. Distt. Durg ' (M.P,.). VERSUS 1. Estate omcer Appointed under The Public Prcmises (Eviction of Un- , Authorised Person) Act 1971. ' Town Administtation Building, First Floor, Indira Place, Civic Cenh‘e, Bhilai Nagar Tah. 8s Distt. Durg (M.P.) . Steel Authoxity of India Limitgd‘ 2. Through: Managing Dimctor [spat Bhawan, Bhilai Steal Plant, Bhilai Nagar, Tah 35 Distt. Durg (M.P.). A.K. Kureshi S/o Late Abdul Sattar, aged about 63 ycam, R/o Shanu' Nagar, Supela, Near Radha Krishna Mandir,‘ Behind Hindustan Marbels, Rajcndra Chowk, Kohkg Road Tah 8n Distt. (M.P.). 3. ‘ ‘t‘f‘ Smash" Bhansali S/ ’Pukhrajo Bhan‘sali aged about 37 years, R/o 205 Ary’a Nagar, Durg (M.P.). Nandlal Soni S/o Nansraj Soni aged about 48 years, R/o Katora Talab, 'Raipur Tah 8r, Distt. Raipur (M.P.). C/o M/s Bhansali Enterpn'ses Ayproach Road, Jalebi Chowk, Camp- I, Bhi1a1‘ Tah 8a Distt. Durg (M.P.). RE$PONDENTS “’“ PETITION UNDER ARTICLE 2261227 OF THE CONSTITUTION OF INDIA. (SB :Hon’ble Mr. T.P.8harma, J.) Present:- Mr. V.G. Tamaskar, Advocate for the petitioner. Mr. VR. Tiwari, Advocate’for the respondent No. 2. None present for respondents No. '3 to 5. ORDER (Passed on 20/09]201 1) 1. y this Fetition under Article 226/ 227 of the Constitution of ndia B I petitioner has challenged the legality and propxietyrof the cider dated 10/812000 passed by First Additional District Judge, Durg in Misc. Civil Appeal No. 9/91 afmming the order passed by Estate Omcer under Public Premises (Evictiou of Unauthorized Occupants) Act, o W... , 1971 (in short ‘the Act’), Bhilai Nagar Dishict Durg in Case No. 10/ 1990 dated 22/3] 1991 Whemby Estat§0$cer has passed the oxder of eviction against the peu‘tioner and other persons relating to. 2. As per case of the petitioner, one plot measuring ‘40 x 60’ was given to petitioner on license for running n'uit shop with en'ect from 1/8/ 1976 thereafter license -Was terminated vide order dated 30[7/ 1986 on the ground of non-payment of dues, partition in the shop, subletting 8n encroachment substann'ally vide dated 26/9] 1989 termination order was withdrawn by the' authority. Present petitioner has applied for permission of RCC slab rooting over the plot] shop vide its application dated 28/9] 1989. Vide. order dated 29/9] 1989 permission for redonstrucn'on of structure of permanent character using of RCC slab of the plot was granted. Vide order dated 5/4] 1990 license was termination on the ground of subletting of shop of third party and violation of proposed building plain ] construction in violation of proposed building plain thereafter eviction proceeding was initiated under the Act and after providing an opportunity of hearing, eviction order was passed, same was challenged before the First Additional District Judge, Durg and First \ Additional District Judge, Durg has dismissed the appeal vide order impugned Mr. V.G. Tamaskar, Advocate for the petitioner and Mr. V.R. 'I‘iwan‘, Advocate for the respondent No. 2 are heard. Learned counsel for the peu'tioner vehemently submits that First Additional District Judge, Durg was not empowered to hear appeal as it was not notihedrunder the provision of thefAct for hearing such appeal. After granting permission for RCC slab and permission for construction of permanent nature alleged license was not remain in force and it converted into lease. For termination of lease, non'ce under Section 106 of ths Transfer of Pmperty Act, 1882 was sine— qua-non and eviction proceeding under the Act was not competent. 5. Learned counsel for the petitioner placed reliance in the matter of EXPRESS NEWSPAPEE PVT. LTD. AND OTHERS v. UNION OF INDIAAND OTHEgsl in which Supreme Court has held that lease granted by authorityin case of any violation of the texms, authon'ty Iequired to file civil suit but Iecomse under the Act cannot be taken of the summaxy eviction of the lessee. Learned counsel for the petitioner further place reliance in the d matter of ’NEW BUS—STAND SHOP OWNERS ASSOCIATION V. CORPORATION OF KOZHIKODE AND ANOTHEW in which Supreme Court has held that agreement of license cannot be converted into lease and intention of the pariies before and after creation of the relationship of license or lease is relevant. On the other hand, learned counsel for the respondent No. 2 opposed the peu'tion and submits that petitioner himself has tiled appeal before the First Addiu'onal District Judge therefore, he is precluded nom taking ground that order passed by First Additional District Judge who has not notified/designated was competent to pass the order impugned. Learned counsel for the respondent No. 2 further submits that intention of the parties was clear at the time of agreement and even after agreement license was granted to appellant, permission for RCC Slab in premises was granted by the authority but instead of making permanent structure as per plan submitted by appellant has made permanent structure in violation of proposed plan, he has Subletted the premises which are in violation of the license therefore, after providing an opportunity under the Act, license granted to appellant A l 2 (1986) 1 sec 133 (2009) 10 scc 455 was terminated themaftcr appellant has not vacated the possession. Eviction pmceeding was initiamd and competent authority has passed the cider of eviction. Leaxned counsel ‘for the respondent No. 2 placed reliance in the matter of K.K. VERMA v. STA’IE OF J. & K AND OTHER33 in which Supreme Court has held that after passing the order of eviction, licensee is got enu'tled to continue in possession. 10. First order of license, termination of license, Withdrawn of termination order, permission obtained for permanent nature in premises and nnal termination of license clearly reveal that inmim'on of the panics to agreement was of license and not of lease. Permission for permanent construction was granted over the premises licensed to the petitioner and not lease out to the petitioner. As held in case of EXPRESS NEWSPAPERS PVT. LTD. AND 0THERS_(Supra) in case of breach of condition of lease remedy available to lessee is to iile civil suit. In the present case, them was not lease therefore, the case EXPRESS NEWPAPERS PVT. LTD. AND O'I‘HERS_l8upra) is distinguishable on the grounds of fact. 11, As held. in case of NEW BUS-STAND SHOP 0WNER8 ASSOCIATION (Supra) intention of the parties before and after creation of the relation of license or lease is relevant. ’In the present case, intention of the parties since its inception terminan'on shows that agleement between parties was for license and not for lease, only by ganting permission for construction of permanent nature does not automatically change in nature of agreement, cone of license into lease. 12. Order passed by competent authority is appealahle under Section 9 of the Act before the District Judge or other Judicial O$cer 3 (2002) 10 soc 406 1 t designated in this behalf. Petitioner himself has flled appeal before the F‘ixst Additional District Judge, he had not shown any material which would show that First Additional District Judge was not designated to hear the appeal even otherwise if for the sake of agreement, F‘ixst Additional District Judge was not designated 'for ‘ healing the appeal then order of eviction passed by competent authority, order is still in force and petitioner“ is not entitled to take a beneht of his own fault in other words, competent authority has not committed any illegality. Eviction order is still in force against the petitioner and after order of eviction as held in case of K.K. VERMA {Supra} petitioner is not entitled to continue in possession over the suit premises, I do not hnd any substance in the petition. Consequently, petition is liable to be dismissed and is hereby dismissed. No order as to costs. 1 , v r ' 5d]- VJ T.P Sharma 3 Judge