Feeling aggrieved and dissatisfied by the judgment and order dated December 31,1996 rendered by the learned Extra Assistant Judge, Jamnagar, in Civil Regular Appeal no.15/93 which was filed under section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act,1971 ("the Act" for short), the petitioner has filed present petition under Article 226 of the Constitution.
2.The petitioner was serving as Office Assistant (Clerk) in P.& T. Department. Quarter No.C-5, P & T Colony, Jamnagar was allotted to the petitioner when he was serving as Office Assistant at Jamnagar. The petitioner was compulsorily retired from service vide order dated September 13,1988 passed by the Senior Superintendent of Post Office, Jamnagar with effect from December 15,1988. As the petitioner was compulsorily retired from service, he was called upon to vacate the quarter allotted to him after a period of four months from December 15,1988. The petitioner failed to hand over vacant possession of premises to the respondent. Therefore, proceedings for eviction were initiated against the petitioner under the provisions of the Act before Estate Officer, Jamnagar, who is competent authority under the Act. The petitioner appeared and contested the proceedings which were pending before the competent authority. In the eviction proceedings, Estate Officer recorded finding that the petitioner was an unauthorised occupant, as he was compulsorily retired from service. In view of the said conclusion, the competent authority cancelled the allotment order of quarter made in favour of the petitioner vide order dated May 21,1990 and directed the petitioner to vacate the quarter allotted to him. Against the said order, the petitioner preferred Regular Civil Appeal no. 59/90 which was allowed by the learned Assistant Judge vide judgment and order dated October 8,1992 and the matter was remanded to the Estate Officer with a direction to decide the same after holding fresh proceedings as provided under sections 4 & 5 of the Act. After remand, the Estate Officer served the petitioner with a notice dated December 17,1992 and called upon the petitioner to show cause as to why order of eviction should not be passed against him. The petitioner again contested the proceedings before the Estate Officer. The Estate Officer by order dated March 1,1993 concluded that the petitioner was in unauthorised occupation of the quarter allotted to him. Under the circumstances, the Estate Officer in exercise of powers conferred on him by sub-section (1) of Section 5 of the Act ordered the petitioner to vacate the premises within 15 days from publication of the said order. Aggrieved by the said order,the petitioner preferred Regular Civil Appeal no.15/93 in the Court of learned District Judge, Jamnagar. The learned Extra Assistant Judge, Jamnagar,who heard the appeal,has dismissed the same by judgment and order dated December 31,1996, giving rise to the present petition.
3.Mr. S.M.Shah, learned Counsel appearing on behalf of the petitioner made following submissions: (i) In view of Section 9 of the Act, appeal could not have been disposed of by learned Assistant Judge, but only learned District Judge is entitled to act as an appellate officer, as he is Persona Designata and not Court and, therefore, as the impugned order is without jurisdiction, the petition should be entertained. (ii) There was no designation by the learned District Judge in favour of the learned Assistant Judge within the meaning of Section 9 of the Act and, therefore, the learned Assistant Judge had no jurisdiction to dispose of the appeal filed by the petitioner. (3) The judgment rendered in the case of KUMAR GANGARAM v. ESTATE OFFICER, GUJARAT HOUSEING BOARD, RAJKOT, XXXI (2) G.L.R. 1006 does not lay down law correctly and, therefore, the present petition should be admitted and referred to Larger Bench for reconsideration of decision rendered in case of KUMAR GANGARAM.In support of his submissions, learned Counsel has placed reliance on the decision rendered in the case of RATHOD BHOJAJI SHANTUJI v. PATHAN NASIRKHAN KESHARKHAN & ORS. III G.L.R. 803.
4.Mr.Ketan Dave, learned Standing Counsel for Central Government pleaded that appellate officer under section 9 of the Act is not Persona Designata, but a Court and, therefore, the impugned decision should not be interfered with by the Court in the petition, which is instituted under Article 226 of the Constitution.It was submitted that Section 9(1) of the Act specifically empowers the District Judge to designate any other judicial officer in that District of not less than 10 years' standing to decide the appeal under section 9 of the Act and, therefore, the decision rendered by the learned Assistant Judge cannot be construed as one having been passed without jurisdiction. What is emphasised is that even otherwise the petitioner had attained age of superannuation in the month of December,1992 i.e. during the pendency of proceedings initiated by the Estate Officer under the Act and as the quarter in question is needed for being allotted to other employees of P & T Department, Court should dismiss the petition in limine. In support of his submissions, learned Counsel has placed reliance on the decisions rendered in the cases of (1) KAPADWANJ NAGARPALIKA v. BHARAT PERTROLEUM CORPORATION LTD. XXVII(2) G.L.R. 1410, and (2) KUMAR GANGARAM (Supra).
5.The fact that the petitioner was compulsorily retired from service vide order dated September 13,1988 with effect from December 15,1988 is not in dispute. Similarly, it is not in dispute that during the pendency of proceedings before the Estate Officer under the provisions of the Act,the petitioner had attained age of superannuation in the month of December,1992. It is not brought to the notice of the Court that order retiring the petitioner compulsorily from service was set aside by any competent authority. The expression "Unauthorised Occupation" is defined in Section 2(g) of the Act, which reads as under :-
"(g) '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 or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
From the definition of expression "unauthorised occupant" there is no manner of doubt that the petitioner was in unauthorised occupation of quarter allotted to him from April 15,1989. The petitioner has failed to produce any evidence before the Court that after April 15,1989 he was in possession of the premises pursuant to any authority. Therefore, the finding recorded by the Estate Officer as confirmed by the Appellate Officer that the petitioner is an unauthorised occupant is eminently just and not liable to be inferered with in the present petition, which is filed under Article 226 of the Costitution.
6.Before appreciating the submissions advanced by the learned Counsel for the petitioner it would be advantageous to refer to the provisions of Section 9 of the Act. Section 9 of the Act reads as under :-
"9. Appeals- (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under section 5 of section 5B of section 5C or section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the district judge may designate in this behalf. (2) An appeal under sub-section (1) shall be preferred-
(a) in the case of an appeal from an order under section 5, within twelve days from the date of publication of the order under sub-section (1) of that section.
(b) in the case of an appeal from an order under section 5B or section 7,within twelve days from the date on which the order is communicated to the appellant: Provided that the appellate officer may entertain the appeal after the expiry of the said period if he is satisfied thatthe appellant was prevented by sufficient cause from filing the appeal in time and
(c) in the case of an appeal from an order under section 5C within twelve days from the date of such order.
(3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit.
Provided that where the construction or erection of any building or other structure or fixture or executin of any other work was not completed on the day on which an order was made under section 5B forthe demolition or removal of such building or other structure or fixture,the appellate officer shall not make any order for the stay of enforcement of such order, unless such security, as may be sufficient in the opinion of the appellate officer,has been given by the appellate for not proceeding with such construction, erection or work pending the disposal of the appeal.
(4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible.
(5) The costs of any appeal under this section shall be in the discretion of the appellate officer.
(6) For the purposes of this section, a presidency-town shall be deemed to be a district and the chief judge or the principal judge of the city civil court therein shall be deemed to the district judge of the district."
From a bare reading of Section 9(1) of the Act, it is evident that an appeal instituted under section 9 of the Act can be heard by District Judge or by such other judicial officer in that district of not less than ten years' standing as may be designated in that behalf by the District Judge. Sub-section (1) of Section 9 in terms provides that other judicial officers are also entitled to decide the appeal subject to certain conditions. When the learned Assistant Judge decided the appeal filed by the petitioner, it has to be presumed that the learned District Judge specifically directed the learned Assistant Judge to decide the appeal and the learned District Judge had designated the learned Assistant Judge to hear the appeal as contemplated by sub-section (1) of section 9 of the Act. Therefore,it cannot be said that the impugned order passed by the learned Assistant Judge is without jurisdiction.
7.At this stage, it would be relevant to notice two decisions of this Court. In the case of KUMAR GANGARAM (supra) order passed by Joint District Judge, Rajkot under section 9(1) of the Act was challenged in a petition filed under Article 227 of the Constitution. It was pleaded that the Joint District Judge had no jurisdiction to decide the appeal under section 9 of the Act. Rejecting the said plea, Court has held as under in Para-11 of the judgment :-
"This Section specifically provides that appeal can be decided by the District Judge of the District in which the public premises are situated. It could also be decided by such other Judicial Officer in that District,who has for atleast ten years held a Judicial Office in the State as the District Judge may designate in this behalf. Therefore, if the District Judge has specifically directed that the appeal shall be heard and decided by the Joint District Judge,then it can be said that the District Judge has designated the Joint District Judge to hear the appeal. Therefore, it cannot be said that the Joint District Judge had no jurisdiction to dispose of the appeal."
The contention that provisions of Sections 16 & 17 of the Bombay Civil Courts Act,1869 are not considered by the Court while deciding the case of KUMAR GANGARAM (supra) and, therefore, the matter should be referred to Division Bench for reconsideration of decision rendered in said case, cannot be accepted. Sections 12 & 13 of the Bombay Civil Courts Act,1869 are referred to in the said decision because in that case the appeal was heard by a Joint District Judge. However, reading the said judgment it is evident that what is emphasised by the Court therein is power of District Judge to designate other judicial officer in that District of not less than ten years' standing for the purpose of deciding appeal which may be filed under section 9 of the Act. Before rendering decision in the case of KUMAR GANGARAM (supra), the Court has taken into consideration relevant provisions of the Act. In my humble opinion, the view expressed by the Court therein is well-founded, and I am in respectful agreement withthe same. Under the circumstances, the plea that decision rendered in the case of KUMAR GANGARAM (Supra) should be referred to Division Bench for reconsideration cannot be accepted.
8.In the case of KAPADWANJ NAGARPALIKA (Supra), Burmah Shell Oil Storage & Distribution Company of India Limited was found to be in unauthorised occupation of premises belonging to Kapadwanj Nagarpalika. Proceedings were initiated against the Company under the provisions of Gujarat Public Premises (Eviction of Unauthorised Occupants) Act,1972. The competent authority had passed order of eviction against the Company which was challenged before appellate officer. The appeal was disposed of by the learned Assistant Judge, Kheda at Nadiad. In a petition instituted under Article 227 of the Constitution it was pleaded that the phrase "District Judge" in Section 9 of the said Act is synonymous with persona designata and, therefore, the judgment having been rendered without jurisdiction, was liable to be set aside. While negativing the said contention it is held as under:-
"At the fag end, Mr.Gupta tried to save the wreckage of the issue. He referred to the text of sec.9 and urged that only the District Judge could hear the appeal, and not the Assistant Judge. The term 'District Judge' includes the Assistant Judge also, even as per Constitution. This contention was not raised at any time before the District Judge. So, I do not permit it to be raised and if it is raised I do not entertain it, finding little merit in it. One judgment of the Delhi High Court reported in ILR 1979 (1) Delhi at page 159 was brought to my notice by Mr.Gupta,which held that an appellate officer under sec.9 is not a court,but a persona designata, and, therefore, petition under Article 227 against order of such appellate officer is not maintainable as it is not an order of a court. Even if the District Judge exercises appellate power as a persona designata I would say that he exercises powers of a quasi-judicial Tribunal at any rate and, therefore, Article 227 is surely attracted. So, with profound respect I would differ from the Division Bench of the Delhi High Court."
9.From the above observations made by the Court, it is evident that the term District Judge is not synonymous with persona designata and includes even an Assistant Judge and an Assistant Judge would be competent to hear an appeal under section 9 of the Act. Even if it is assumed for the sake of argument that the phrase "District Judge" in Section 9 is synonymous with persona designata, the impugned order is not liable to be set aside because as indicated earlier, section 9(1) of the Act contemplates designation by the District Judge in favour of any other judicial officer in that district of not less than ten years' standing and designation made by the learned District Judge in the present case in favour of learned Assistdant Judge is not subject matter of dispute in the present petition. Even the point,namely, that there was no designation in favour of the learned Assistant Judge,who decided the appeal and, therefore, he was not competent to hear the appeal filed by the petitioner, was never agitated before the learned Assistant Judge. In the case of RATHOD BHOJAJI SHANTUJI (Supra), the Court has construed Section 15 of the Bombay Village Panchayats Act,1958 and held that order which was passed by the learned Civil Judge (S.D.),Mehsana was erroneous, as election petition could not have been decided by the learned Civil Judge (SD) when learned Civil Judge (JD) was available. In my view, the provisions of Section 15 of the Bombay Village Panchayats Act,1958 are quite different than the provisions of Section 9 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act,1971. Therefore, decision in case of RATHOD BHOJAJI does not furnish guide for the purpose of interpreting Section 9 of the said Act. Under the circumstances, the decision rendered in the case of RATHOD BHOJAJI SHANTUJI (Supra) is of no avail to the petitioner.
10.From the impugned order it is evident that sufficient opportunity of hearing was accorded to the petitioner by the Estate Officer before passing order of eviction under the provisions of the Act. It is not even suggested that principles of natural justice were in any manner violated by the Estate Officer. As the decision rendered by the learned Assistant Judge is in conformity with the provisions of the Act, the petition cannot be entertained and is liable to be dismissed.
For the foregoing reasons, the petition fails and is dismissed. Notice is discharged with no order as to costs. Ad-interim relief granted earlier is hereby vacated.
11.At this stage, learned Counsel for the petitioner prays that ad-interim relief granted earlier be continued for a period of two weeks to enable the petitioner to approach higher forum. The prayer made by the learned Counsel for the petitioner is opposed by Mr. Ketan Dave, learned Standing Counsel appearing for the respondent. There is no manner of doubt that the petitioner is in unauthorised occupation of the premises since long. Need to allot Quarter to other employees of Department can hardly be ignored. Having regard to the facts and circumstances of the case, I am of the opinion that interest of justice would be served if ad-interim relief granted earlier is directed to continue for a period of one week from today to enable the petitioner to approach higher forum. Therefore, ad-interim relief granted earlier is directed to continue for a period of one week from today.
February 13,1997( J.M.Panchal,J.)