In both these petitions, two petitioners have approached this court challenging the similar orders of eviction passed by the competent authority of respondent Corporation in exercise of powers under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as 'the act' for short) and the order passed by the Appellate Authority confirming those orders. Hence, both these petitions were heard together and are being disposed of by this common order.
The petitioners have approached this Court under Article 226 and also under Article 227 of the Constitution of India challenging the order dated 07.10.2011 passed by the Estate Officer of respondent Corporation and order dated 22.12.2011 passed by the Principal District Judge, Surat in Regular Civil Appeal No. 103 of 2011 and 104 of 2011 respectively for the reasons stated in the memo of petition.
Facts in short, as they culled out from the memo of petitions deserve to be set out as under for appreciating the controversy:
The petitioners were alloted storage space by respondent by executing an agreement. The petitioner of Special Civil Application No. 2269 of 2012 entered into an agreement with respondent Corporation, which was executed on 24.01.2005 and petitioner of Special Civil Application No. 2270 of 2012 executed an agreement with respondent Corporation on 01.04.2006. In both these agreements, the first clause contained that petitioner would utilize the storage space for a minimum period of 7 years and in that very clause, the option is given to both the sides, executing the agreement to terminate the agreement by issuing 6 months notice or payment in lieu thereof. In the case of the petitioner of Special Civil Application No. 2269 of 2012, the notice of eviction came to be issued on 08.09.2010, whereas, in case of petitioner of Special Civil Application No. 2270 of 2012, the notice was issued on 08.09.2010 also. The petitioners have replied to said notice but said reply is not placed on record. The Corporation issued reminders on 12.02.2011 and 14.12.2011 but those reminders were of no avail and hence, ultimately, the eviction proceedings as envisaged and provided under the Act were initiated. The Competent Authority issued notice on 23.06/07.2011 to both the petitioners under Section 4 of the Act and therein, he also informed the petitioners to show cause as to why the damage and rent for remaining unauthorized occupant of the premises may not be recovered. These notices are replied and both the petitioners have approached the Civil Court by filing Regular Civil Suit Nos. 106 of 2011 and 107 of 2011 respectively. In both the aforesaid Regular Civil Suits, an application for interim injunction was made and same is pending for its hearing.
During the pendency of said application, the period of 6 months was over, hence notice under the Act were issued. The petitioners had approached the court on the premise that interpretation of clause 1 of the agreement did not permit the Corporation to issue notice before expiry of 7 years period, which is an obligation cast upon the petitioners to occupy the premises for minimum period of 7 years and therefore, the petitioners as a matter of right were justified in continuing in occupation till 7 years period is over. The 7 years period so far as petitioner of Special Civil Application No. 2269 of 2011 is concerned was getting over on 01.02.2012 and for petitioner of Special Civil Application No. 2270 of 2012 is getting over on 01.04.2013.
It is pertinent to note that, the first notice of eviction invoking the clause of eviction under agreement came to be issued by the Corporation on 08.09.2010 and 6 months thereafter were getting over by 07.03.2011. In other words, the Corporation initiated eviction proceedings as there was non compliance of notice of eviction issued on 08.09.2010. During the hearing before the Competent authority under the Act, an application came to be filed on behalf of the Corporation under Section 12 of the Act bringing to the notice of the authority that the petitioners have inducted third party namely M/s. Silicon Cars Pvt. Ltd. The Estate Officer granted time to learned advocate appearing for the petitioners to file appropriate reply and submission thereof but on account of no instruction, the advocate could not file reply and that has been noted by the Estate Officer in his order impugned before this Court. The Estate Officer after framing issues including issue qua petitioners' liability to pay damage, passed an order on 07.10.2011 ordering eviction as well as making the petitioner liable to pay damage as ordered. This order of Estate Officer, competent authority under the Act, was assailed by the petitioners by preferring Civil Misc. Appeal No. 103 of 2011 and 104 of 2011 before the District Court, Surat, the designated authority under the Act, to decide the appeal under the Act. The said authority also, after elaborate discussion on the ground held that the order dated 07.10.2011 was just and proper and did not call for any interference and dismissed those appeals vide order dated 22.12.2011. Being aggrieved and dissatisfied with these two orders, the petitioners have preferred these two petitions under Articles 226 and 227 of the Constitution of India as stated hereinabove.
Learned advocate for the petitioners has contended that the petitioners were entitled to be in possession of the premises for a period of 7 years from the mentioned date in MOA as the plain and simply interpretation of that clause in agreement is capable of only one and simply interpretation that the petitioners were not to be called upon to evict the premises as they were obliged to occupy the same for minimum period of 7 years. This submission is sought to be supported on account of fact that the entire MOA does not contain any specific date for occupation by the petitioners. Therefore, in this clause and 6 months period is to be read as if the same is entitling either party to act thereupon only after the period of 7 years is over. In view of this, the petitioners were constrained to file appropriate proceedings in the nature of civil suits and filed an application Exh. 5 for interim injunction. During pendency thereof and when the civil courts was to decide about the interpretation of clause -1, it was not open to the respondent to issue eviction notices invoking the provisions of the Act, as if, their interpretation was the only correct interpretation. In fact, it was bounden duty cast upon them to respect the civil court proceedings and they should have awaited till the appropriate verdict, as in one of the similar cases, the civil court has granted interim injunction. The Civil Court has recorded its prima-facie finding that the plaintiff therein on interpretation of the identical terms, had allowed to occupy the premises for 7 years and any notice issued prior thereto for eviction is a premature notice. The petitioners were thus, before the civil court for identical relief and when the Exh. 5 application was itself not decided, the authority could not have acted on the specious premise that 6 months time was over and therefore, the petitioners were rendered unauthorized occupants.
Apropos the submission with regard to submission of suppression of facts in respect of allotment of this premises to one M/s. Silicon Cars Pvt. Ltd., it is submitted that said allegation of suppression is not required to be entertained as non mentioning of M/s. Silicon Cars Pvt. Ltd. in the petition cannot be termed to be a suppression, as the petitioners have nowhere admitted before the Estate Officer or the Appellate Authority that there were induction of Silicon Cars Pvt. Ltd. in the premises as alleged. Learned advocate for the petitioners further contended that even the reading of order of eviction by the Estate Officer, it can be said that when the Estate Officer has not taken that ground, to be ground for eviction, as rightly so, the notice for eviction also did not contain the ground of induction of Silicon Cars Pvt. Ltd. as unauthorized induction.
Learned advocate for the petitioners further contended that the allegation of suppression is ill-founded as consistently the Corporation, the authority have not taken that ground to be ground for eviction and therefore, petitioners were under no obligation to refer or mention or clarify the said allegation in respect of M/s. Silicon Cars Pvt. Ltd.
Learned advocate for the petitioners also submitted that the petitioners have averred in para-3(L) on page-13 that the petitioners crave leave of this Court to refer and rely upon the grounds and other averments and submissions made in the Appeal memo before the Appellate Court as the ground in this petition also. The petitioners advocate thereafter invited this court's attention to the averments made and grounds taken in the memo of appeal filed before the concerned authority and attention of this court was focused on the averments made in para-7 on internal page 5, running page 40 of the compilation, which go to show that the order of damage is assailed to be illegal. The court's attention was also invited to para-19 on internal page 12 of running page-47, wherein, it is mentioned that the Estate Officer has wrongly passed order of damage, restoration charges and recovering thereof and petitioners are not liable to pay the same. Based upon this submission, it was contended that the contention of the advocate of respondent Corporation that there exists no ground for or pleading for challenging the jurisdiction in Estate Officer to pass an order of damage is unsustainable.
Learned advocate for the petitioners further submitted that the learned advocate has in fact once this ground was taken on behalf of the respondent advocate, immediately, requested the court, amidst the hearing that leave to amend be granted so as to bring on record the precise ground and pleading indicating that there exists no jurisdiction in the Estate Officer to pass order of damage as there was no notice under Section 7 of the Act. In support of this ground, learned advocate for the petitioner has relied upon the decision of this Court in case of Fulaji Okhaji Thakore Vs. Union of India, reported in 1985 (1) GLR 434, and submitted that the concerned competent authority while passing the order of damage is under an obligation to issue specific notice under Section 7 of the Act. The case cited, though is arising out the provisions of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, in the instant case also, there exists similar provisions in form of Section 7, which clearly lays down that notice for recovering damage is required to be issued against unauthorized occupants, failing which, the order of damage would not be sustainable.
Learned counsel appearing for the respondent Corporation has invited this court's attention to the notice dated 08.09.2010 and contended that interpretation of clause 1 of MOA cannot be construed to be entitling to remain in occupation at least for a period of 7 years, dehors and contrary to very option incorporated in that very clause that either party have a right to issue 6 months notice for eviction and/or terminating the MOA. Therefore, petitioners moving Civil Court would be of no avail to the petitioners as the petitioners could not obtain any injunction or prohibitory orders from the civil court and the petitioners are not disputed at all that respondent Corporation is governed by the provisions of the Act. Therefore, interpretation sought to be canvassed on behalf of the petitioners so as to continue their stay in the premises at least for a period of 7 years, rendering the notice dated 08.09.2010 to be premature, is untenable, as otherwise also, it would be in violation to the very language of the clause of MOA.
Learned counsel appearing for the respondent Corporation, thereafter submitted that the authorities after issuing notice on 08.09.2010 sent two reminders on 12.02.2011 and 15.02.2011, but those reminders were also of no avail and petitioners did not act in compliance with notice and thus, rendered themselves to be liable to be evicted under the procedure of the Act and hence, the Estate Officer has rightly issued notice on 23.07.2010.
Learned counsel appearing for the respondent Corporation has invited this court's attention to the wording of the notice dated 23.06/07.2011 and submitted that though the notice in itself in initial part refers that the petitioners are liable to be evicted under Section 4 but subsequent part of the notice would go to show that the petitioners were called upon precisely to show cause as to why the damage as mentioned therein may not be recovered from them. Thus, it is submitted that the Estate Officer has also issued notice invoking Section 7 of the Act also, though section 7 in terms has not been referred to in the notice in question.
Learned counsel appearing for the respondent Corporation thereafter, invited this court's attention to the reply filed to the show cause notice before the Estate Officer i.e. competent authority, with specific attention to page-96 of the compilation on record tendered during the course of hearing and contended that the entire reply is conspicuously silent qua issuance of recovering damage from the petitioners. In fact, the Estate Officer has narrated points for determination in which the point no. 5 is the point in respect of determining liability of the petitioners to pay the damages and hence, when the petitioners themselves have without any protest or demur participated in the notice proceedings, in which, they were put to specific notice with regard to showing cause at all, their liability to pay the damage then they are now not permitted to turn around and say that the notice dated 23.06/07.2011 was incompetent so far as section 7 proceedings of recovering damage are concerned.
Learned counsel appearing for respondent Corporation has invited this court's attention to the memo of appeal and order of appellate authority and contended that even in the memo of Appeal also, there exists no ground whatsoever which is qua section 7 jurisdiction, which is not sought to be canvassed for first time relying upon the decision of this Court in case of Fulaji Okhaji Thakore (Supra).
Learned counsel appearing for the respondent Corporation has submitted that the ground qua no notice under Section 7 is now not available to the petitioners as the petitioners have not even made any pleading to that effect in the memo of petition. The ground of no notice under Section 7 cannot be said to be a pure ground of law only as facts and circumstances of the case and requirement of notice, go to show that the petitioners were having prior knowledge and therefore, they were participating in the proceedings resisting their liability to pay damage on merits but without taking ground that the Estate Officer lacked authority in assessing the damage for want of notice under Section 7 of the Act.
Learned counsel appearing for respondent Corporation has also submitted that suppression of material facts in respect of induction of third part in the premises and the very fact that third party is in the premises, is so gross as to persuade this court to dismiss the matter with costs. The suppression is so gross as to render the petitioner to be person, who has claimed to the court with stained hands and has suppressed the material facts before the Estate Officer i.e. Competent Authority under the Act, though the advocate for the petitioners was given amply opportunity to respond and clarify the allegation and averments made by the Corporation under application made under Section 12 of the Act, in respect of induction of M/s. Silicon Cars Pvt. Ltd., but despite enough opportunity, the petitioners could not issue any instruction to their advocate, which could be placed on record explaining the allegations and averments in respect of induction of M/s. Silicon Cars Pvt. Ltd. unauthorizedly. These facts glaring stair on the face of the petitioners and petitioners are therefore under greater obligation to explain their own and justify their challenge to the orders impugned. At this stage, learned counsel for respondent Corporation places on record the decision of this Court (Coram: S.R. Brahmbhatt, J.) rendered on 15.2.2012 in Special Civil Application No. 1960 of 2012, wherein, the said M/s. Silicon Cars Pvt. Ltd. had approached this court in respect of these very premises for seeking appropriate prayers, which were turned down by this court and therefore, it cannot be said that presence of M/s. Silicon Cars Pvt. Ltd. shall not in the premises or allegation thereof, was not required to be explained by the petitioners, who has approached this court also under Article 226 of the Constitution of India. This suppression of facts and non-verifying the situation even during the arguments, would indicate that the petitioners have not come out with all clear facts so as to invoke equitable jurisdiction of this court under Article 226 of the Constitution of India and therefore, on this count also, the petition is required to be dismissed in limine.
This court has heard learned advocate for the petitioners and learned counsel for respondent Corporation.
The court proposes to set out hereinbelow few indisputable aspect emerged from the rival contentions and records, so as to appreciate the contentions in light thereof, namely :-
There exists two MOAs between the parties. According to one MOA, i.e petitioner of Special Civil Application No. 2269 of 2012, the period of 7 years is over and in respect of other, i.e petitioner of Special Civil Application No. 2270 of 2012, the said period of 7 years is not over.
Both MOAs are identically worded and therefore, reference of any one of them would be sufficient for appreciating the controversy and contentions in the petition.
The clause 1 contains that the petitioners will have an obligation to occupy the space for minimum the period of 7 years and in that very clause, it is also recorded that both the sides will have an option to terminate the MOA and ask the other side for eviction within 6 months notice or the charges in lieu thereof.
This clause is sought to be interpreted by petitioners as if the petitioners entitlement to be in the occupation of the premises and restrictions upon Corporation in seeking eviction of the petitioners prior thereto.
The Corporation has interpreted the said clause to be clause entitling the Corporation to have the petitioners evicted and petitioners obligation to evict the premises on receipt of 6 months notice as envisaged in clause 1.
In case of the petitioner of Special Civil Application No. 2269 of 2012, the 7 years period is getting over on 01.02.2012 and in case of petitioner of Special Civil Application No. 2270 of 2012, the 7 years period is getting over on 01.04.2013.
Both the petitioners have approached the civil court for appropriate relief and civil court has not granted any prohibitory order in terms of temporary injunction against their eviction.
The notice for eviction was issue on 08.09.2010 invoking clause 1 by the Corporation to both the petitioners. Thus, 6 months time was getting over on 7.03.2011.
The petitioners have not evicted the premises nor were they protected by any prohibitory order from any authority including civil courts.
The Estate Officer, designated and competent authority under the Act, issued notice on 23.6/7.2011 invoking section 4 of the Act and notice did not contain in its captioned that notices are also issued under Section 7 of the Act.
However, in the operative part of the notices, the Estate Officer i.e. Competent Authority has in term called upon the petitioners to show cause as to why they may not have to pay the damages and why the same shall not be recovered from them.
The proceedings before the Estate Officer without any demur qua lack of jurisdiction for assessing damage at the end of competent authority as there was no notice under Section 7.
The petitioners have nowhere in their reply filed before the Estate Officer taken up contention that the Estate Officer did not have jurisdiction to assess and levy damage from the petitioner as he had not issued any notice under Section 7 of the Act.
The petitioners have in fact resisted the assessment of damage on merits but it cannot be said that the resisting of damage on merits, was resistance of assessment on merits on account of lack of jurisdiction for want of notice under section 7 of the Act.
Learned advocate for the petitioners has invited this courts attention to the averments made in the petition, appeal memo and ground to support the contention that there was an objection to assessment of damage.
The damage is assessed and order is composite order passed against the petitioners ordering eviction as well as imposing damage that they are called upon to pay 3 times the rent otherwise payable.
The appellate authority has taken into consideration the interpretation of clause 1 and held that Corporation's perception for purporting of clause 1 was correct and once the notices were issued for eviction invoking clause 1, then, petitioners were liable to be evicted the premises and on their failure to evict the premises, rendered them unauthorized occupants.
In addition to aforesaid discussion and holding, the Appellate Authority has in fact gone into the aspect of Corporation's capacity and justification of allotting the space and the way it has allotted the space in respect of present petitioners. This aspect, namely, appellate authority's elaborate discussion for respondent's capacity to allot, has been sought to be held to be a ground for declaring the order vitiated on that count by the advocate of the petitioners.
The appellate authority has upheld the order of Estate Officer in its totality.
The 3rd party called M/s. Silicon Cars Pvt. Ltd. has in fact approached this court by way of Special Civil Application No. 1960 of 2012 and this court has dismissed the said matter on 15.02.2012.
The petitioners have not made any averments whatsoever in respect of allegations of induction of 3rd party in the premises.
Against the aforesaid factual backdrops, this court is of the considered view that the petitions are required to be dismissed for the following reasons:
The petitioners have not come out before this Court with clean hands. The petitioners have not absolved of their preliminary duty to place all facts on record without suppressing any material facts when the petitioners were approaching this court under Article 226 of the Constitution of India. In the instant case, the petitioners have not referred to M/s. Silicon Cars Pvt. Ltd. in any manner in the entire memo of petition, nor have the petitioners attempted to explain the non-mentioning of M/s. Silicon Cars Pvt. Ltd. in any manner. The learned advocate for the petitioners was not correct in submitting that the petitioners were not required to refer to M/s. Silicon Cars Pvt. Ltd. at all, as the reference of M/s. Silicon Cars Pvt. Ltd, is not a reference, which has been taken up for the first time or made for the first time before the Court by the respondent Corporation, in fact, the respondent Corporation has taken care to bring additional facts to the knowledge of the competent authority by way of invoking provisions of Section 12 of the Act, which reproduce as under:
"Section 12:Power to obtain information: If the estate officer has reason to believe that any persons are in authorized occupation of any public premises, the estate officer or any other officer authorized by him in this behalf may require those persons or any other persons to furnish information relating to the names and other particulars of the persons in occupation of the public premises and every person so required shall be bound to furnish the information in his possession"
Thus, the application made under Section 12 and petitioners inertia thereon in not forwarding any explanation or there inaction in refuting allegations would render persuade a reasonable man to say that factum of induction of 3rd part is not incorrect. When such is the conduct of the petitioners is established from the record, then, it was all the more incumbent upon the petitioners to at least made an attempt to explain by appropriate averments on oath before this court as to how M/s Silicon Cars Pvt. Ltd. is in the premises and how it could have filed petition, which came to be rejected by this court. At this stage, it would be also more relevant to refer to the communications between M/s. Silicon Cars Pvt. Ltd, respondent Corporation and petitioners. The said documents are referred to at page nos. 69 to 73 in the compilation which was submitted during the course of hearing, on behalf of the petitioners. These documents also strongly lead to one and only conclusion that M/s. Silicon Cars Pvt. Ltd. is in existing in the premises and if that is accepted to be correct, then, that itself is sufficient to non-suit the present petitioners for entertaining this petition under Article 226 of the Constitution of India. The petitioners have thus, suppressed the material facts on record and therefore, these petitions need not be entertained and they are required to be dismissed in limine on this ground alone.
Assuming for the sake of examination without diluting in any manner the aforesaid discussion, if the court undertakes to examine the other contentions, then also, the court is satisfied that the petitioners have no case for seeking any relief from this court. The petitioners have participated in the proceeding before the concerned authority and petitioners have joined the issue qua the assessment of damage, therefore, the fact with regard to lack of notice under Section 7 would not be available to the petitioners. The court hastened to add here that the court need not elaborate delve much upon this argument, as the petitioners themselves submitted to the jurisdiction of the authority and address the authority resisting the claim on merits. The judgment cited at bar, though it is in respect of Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, is the provision pari-materia of the act in question, and hence the judgment cited and ratio of case cited could not be applicable in the present facts and circumstances of the present case. This court made it clear that this court is not pronouncing that notice under section 7 is not needed for assessment and levy as per the judgment and as per the requirement of law, but this court is in complete agreement with the ratio laid down by this court that the authority before issuing the order of levy damage is under an obligation to issue notice under Section 7 of the Act, as observed by this court in case of Fulaji Okhaji Thakore (Supra). But the question arises, as to whether the court in this case considered it to be a case of no notice under Section 7 of the Act. Technically speaking one can say that there was no notice under Section 7 of the Act as envisaged. Section 7 notice is necessary but looking to peculiar facts and circumstances of the present case, dissuade this court from interfering with the order on the ground that the petitioners have dis-entitled themselves from seeking any relief on the technical ground as they themselves are not in a possession of the land in question and they have not cared to establish their possession in any manner, which would have some semblance of justification for maintaining this petition.
Learned advocate for the petitioner was also not correct in arguing and submitting that the Appellate Court has gone beyond its jurisdiction and therefore, the order of the Appellate Court is vitiated. In fact, this is the case, wherein, there is two competent authorities have consistently held and recorded finding qua the petitioners being unauthorized occupants and thus liable to be evicted and pay damages, then, in such a case, this court, unless and until the case is made out of greater injustice, would not interfere with the orders in question.
The petitioners have all the more no justification to maintain this petition as the space in question was never intended to be utilized for the purpose for it was originally allotted to the petitioners. The court is constrained to observe herein in this paragraph this fact, as learned District Judge was not wholly incorrect in observing that Corporation ought not to have allotted this space for the purpose for which it was originally allotted to the petitioners. The ground for seeking eviction namely giving storage space for PDS distribution and grains. Therefore, in my view, the petitions being hopelessly meritless, deserve to be rejected and is accordingly rejected with costs.
At this stage, learned advocate for the petitioners requested for staying of this order. As there was no stay order granted earlier and in view of the fact that M/s. Silicon Cars Pvt. Ltd., who has approached this court for some indulgence with some prayers, which is said to have been of the same plot, has received order of rejection of this court, in view of this, the request of staying of the order even if it is accepted, would be of no avail to the petitioners. Hence, request is rejected.
(S.R.BRAHMBHATT, J.) pallav Top