1. As both the matters are interconnected and common questions may be required to be considered, they are being heard simultaneously.
2. The short facts are that the proceedings for eviction were initiated by the issuance of the notice dated 10.06.1975 for the property in question. Since the property was not vacated, the Municipality approached to the competent authority under Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as the “PP Act” for the sake of convenience). Thereafter, the proceedings were initiated and the competent authority passed the order for dismissing the application of the municipality. The matter was carried in appeal by the municipality before the District Court and vide judgment dated 30.04.1980, the appeal was allowed and the matter was remanded to the Deputy Collector for fresh proceedings. The Deputy Collector thereafter, initiated the proceedings and ultimately, on 25.01.1983, passed the order for eviction under section 5(1) of the PP Act. The petitioner preferred an appeal before the District Court being Civil Misc. Appeal No. 12/83 against the order of the Deputy Collector under the PP Act. As per the petitioner, pending the appeal, he applied to the municipality for transfer of tenancy by way of regularisation and by way of premium and the said application was granted by the municipality. It appears that against the said decision of the municipality, the legal heirs of the original tenant approached before the Deputy Collector under section 258 of the Gujarat Municipalities Act (hereinafter referred to as the “ Act” for short) and the District Collector, vide order dated 13.07.1993, set aside the decision of the Municipality, but he further directed the municipality to allot shop to the applicants before him. The petitioners carried the matter before the State Government in revision and the State Government vide order dated 10.01.1997, set aside the order of the District Collector. In the meantime, the appeal pending before the District Judge came to be decided vide judgment dated 30.10.1996 and the learned District Judge dismissed the appeal under the PP Act. The petitioner preferred review application and the said application was also dismissed on 31.01.1997. Under the circumstances, the petitioner of Special Civil Application No.1262/97 has approached to this Court with the prayer inter alia to set aside judgment of the District Judge in appeal for eviction under the PP Act.
3. It appears that the legal heirs of the original tenant have preferred Special Civil Application No.2518/97 for challenging the legality and validity of the order passed by the State Government and it is prayed that the respondent municipality be directed to give effect to the order of the Collector, Banaskantha, which of course was set aside by the State Government.
4. I have heard Mr. Ashish Shah for Mr. Raval for the petitioners of Special Civil Application No.1262/97 who are the original respondents in Special Civil Application No.2518/97. I have also heard Mr.Joshi for the petitioners of Special Civil Application No. 2518/97 who are the original respondents in Special Civil Application No. 1262/97. I have heard Mr. Jayswal, learned AGP for the State authorities in Special Civil Application No.2518/97.
5. As such, once the subtenancy was regularised by the municipality, the proceedings for eviction under PP Act at the instance of the municipality would no more survive. Consequently, the order of the competent authority for eviction and its confirmation thereof by the learned District Judge would also not survive.
6. However, the aspect would remain as to whether the authority has rightly regularised the sub tenancy of the petitioners or not. The Executive Committee of the Municipality had regularised the subtenancy on payment of the premium. As stated by the learned counsel for the petitioners, after payment of the premium, and after regularisation of subtenancy, now the site is also changed inasmuch as in lieu of the old cabin/shop, another shop has been allotted by the municipality. Therefore, the aspect of exercise of the power by the municipality or its executive committee for regularisation of subtenancy would remain. The application was made by the legal heirs of the original tenant before the District Collector under section 258 of the Act but he had also exceeded his jurisdiction inasmuch as he should have rested after finding the legality and validity of the decision of the executive committee of the municipality, but it appears that he has further exceeded his jurisdiction by giving the direction to the municipality to handover the shop/cabin to the legal heirs of the original tenant who are applicant before him. The State Government in exercise of the revisional power found that the resolution was already implemented and appeal was pending before the District Court and therefore, the Collector ought not to have exercised the power under section 258 of the Act and therefore, has set aside the order of the Collector.
7. There are subsequent developments of the matter, viz., that the proceedings under the PP Act would no more survive since the subtenancy was regularised and further in exchange of the old shop another shop has been allotted by the municipality. The additional aspect would be that whether the Collector in exercise of the power under section 258 of the Act would be in a position to pass the mandatory order to the municipality for handing over of the possession of the shop to the original tenant and subtenant or not. So far as the order of the State Government is concerned, it appears that the State Government has also not examined the aspects as to whether the District Collector could exercise the power under section 258 of the Act keeping in view the aforesaid fact situation. Hence, it appears that the matter should be relegated to the District Collector for examining the application made by the petitioners of Special Civil Application No.2518/97 afresh and after considering the aforesaid development of the matter, he should be at the liberty to pass appropriate orders.
8. It is only after the decision of the District Collector that the cause if any remains to the municipality, for eviction under PP Act, fresh proceedings would be required to be undertaken since in any case, the site of the property or the premises is changed.
9. In view of the aforesaid observations and discussions, it is observed and declared that the proceedings under the PP Act for eviction shall abate and the order of eviction shall not survive but with the observation that in the event the municipality has any right in law for eviction of the new premises, it will be open to the municipality to initiate proceedings in accordance with law but the same shall be only after the decision of the District Collector as may be directed hereinafter.
10. The impugned order passed by the State Government as well as the order passed by the District Collector are set aside with the further observation that the proceedings under section 258 of the Act being Application No.1/96 shall stand restored to the District Collector. The District Collector shall examine the matter after giving opportunity of hearing to all parties shall pass appropriate orders on the aspect as to whether the decision of the municipality for regularising the subtenancy is valid or not and thereafter, he will be at the liberty to pass appropriate orders in accordance with law. It is observed that rights and contentions of both the sides shall remain open in the proceedings before the District Collector under section 258 of the Act.
11. The petitions are allowed to the aforesaid extent. Rule made absolute accordingly. Considering the fact and circumstances of the case, no order as to costs.
BIJOY (JAYANT PATEL, J.)