(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By this intra court appeal, under Clause 15 of Letters Patent, the appellant – original petitioner has challenged the common oral judgment dated 10.4.2012 passed by learned Single Judge in Special Civil Application No.1687 of 2012 (against which the present appeal is filed) with another Special Civil Application No.1808 of 2012, by which the learned Single Judge has partly allowed the petition filed by present appellant holding that the decision dated 04.10.2011 of the Estate Officer deciding the damages etc., which is confirmed the judgment dated 22.12.2011 passed by the learned Principal District Judge in Regular Civil Appeal No.100 of 2011 was quashed and set aside, however confirmed the order passed by the Estate Officer as well as the learned Principal District Judge directing the appellant to vacate the public premises and hand over the possession to the Corporation within 15 days, under the provisions of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
2. The brief facts arising from the case are as under:
2.1 That the appellant is a company registered under the Companies Act and is engaged in the business of purchasing and selling of cars of Maruti Suzuki Company and is also carrying on the business of car repairing and service centre in the subject premises. One warehouse situated at Central Warehouse Surat-II was given to the appellant/petitioner as show-room and service station bearing No.1A and B for use under the agreement entered into by the third respondent, viz., Central Warehousing Corporation (hereinafter referred to as “CWC”) vide a memorandum of agreement dated 1st July, 2005. Under clause (1) of the said memorandum of agreement, the petitioner is permitted to utilise the storage space of 1340 square metres on reservation basis for a period of minimum seven years with effect from 1st July, 2005. The arrangement can be terminated by either party by giving six months' advance notice or charges in lieu thereof. Vide notice dated 14th February, 2011, the petitioner was informed that the premises should be vacated on or before 7th March, 2011. The petitioner, therefore, approached the civil court by filing Regular Civil Suit No.85/2011 inter alia seeking a declaration to the effect that the third respondent - CWC cannot take possession of the suit premises and the notice dated 14th February, 2011 is illegal and against the memorandum of agreement dated 1st July, 2005. The petitioner also made an application at Exh.5, inter alia, praying that the third respondent may not take possession of the suit premises without following due process of law. By an order dated 13th May, 2011, the learned Principal Senior Civil Judge, Surat allowed the injunction application and directed the third respondent not to take possession of the suit premises without following due procedure of law. The trial court while passing the said order observed that by virtue of clause (1) of the memorandum of agreement, the petitioner is entitled to be in possession of the premises for a minimum period of seven years, that is, till 1st July, 2012 and that the notice dated 14th February, 2011 is premature. It is the case of the petitioner that the said order has become final since the same has not been challenged by the third respondent.
2.2 The estate officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as 'the PPE Act') issued a notice dated 23rd June, 2011 under section 4(1) of the PPE Act inter alia requiring the petitioner to show cause as to why the petitioner should not vacate the premises unauthorisedly held by it. It appears that the petitioner also made an application before this court on 30th September, 2011 under section 11 of the Arbitration Act which came to be withdrawn. Thereafter, the petitioner vide notice dated 30th September, 2011 requested the third respondent to appoint an Arbitrator for resolving the dispute about permission to continue the petitioner in the subject godown. Vide letter dated 25th October, 2011, the third respondent informed the petitioner that since proceedings have been initiated under the PPE Act, the request for appointment of an Arbitrator cannot be considered. Pursuant to the notice dated 23rd June, 2011, the estate officer after hearing the petitioner vide order dated 4th October, 2011 held that the petitioner is an unauthorised occupant of the premises and ordered the petitioner to vacate the premises within fifteen days of the order and further ordered the petitioner to pay damages of Rs.30,09,819/-, restoration charges of Rs.3,49,227/-, legal expenses of Rs.20,000/- and interest at the rate of 18%. Being aggrieved, the petitioner went in appeal before the appellate officer, that is, the Principal District Judge, Surat in Regular Civil Appeal No.100/2011. The appellate officer by the impugned judgment and order dated 22nd December, 2011 dismissed the appeal and confirmed the order passed by the first respondent, viz., the estate officer. However, sixty days' time was granted for vacating the premises. The appellate officer while dismissing the appeal also directed that a copy of the judgment be sent to the Ministry of Agriculture, Food, Consumer Affairs and Public Distribution, Government of India, New Delhi to decide 'whether warehouses of CWC can be allotted to an individual for activities other than activity of storage and to put him in exclusive possession thereof, also to allow the individual to alter/convert the godown for use as business premises and workshop when there is no express provision made in law, nor any resolution passed by the Board of Directors in this behalf?' If the answer is 'no', then to hold inquiry into the matter and to determine the loss occurred, amount not recovered from allottee on account of such unauthorised action on the part of the concerned and to recover the loss from him. Subsequently, the petitioner received a notice dated 11th January, 2012 from the Manager of the third respondent, inter alia, requiring the petitioner to pay Rs.46,82,177/- as per the order passed by the authority under the PPE Act within a period of three days. Being aggrieved, the petitioner has filed the present petition under Article 227 of the Constitution of India challenging the order dated 22nd December, 2011 passed by the learned Principal District Judge, Surat in Regular Civil Appeal No.100/2011, order dated 4th October, 2011 passed by the estate officer, Central Warehousing Corporation, Regional Office, Ahmedabad as well as demand notice dated 11th January, 2012 issued by the third respondent.
3. The Estate Officer who has been appointed under Section 3 of the PPE Act by his order dated 4.10.2011 after raising certain legal points for determination, came to the conclusion that the opponent was in an unauthorised occupation of the premises with effect from 8.3.2011 and further directed the opponent to vacate the premises and hand over the possession to the Corporation within a period of 15 days. By additional direction the Estate Officer has determined several charges under several heads like storage charges, restoration charges, cost and interest etc. The said decision was challenged by the appellant by way of Regular Civil Appeal provided under Section 9 of the PPE Act before the learned Principal District Judge at Surat. The said Regular Civil Appeal No.100 of 2011 was dismissed by a well reasoned order dated 22.12.2011.
4. Both these orders were challenged by the appellant by way of captioned petition. Pursuant to the notice issued in the petition, the respondent No.3 i.e. Central Warehousing Corporation, whose warehouse was permitted to be used on certain conditions, by memorandum of agreement dated 1.7.2005, opposed the petition by way of filing affidavit-in- reply. The learned Single Judge, after hearing the learned advocates at length, came to the conclusion that the appellant was in an unauthorised occupation of the disputed premises and confirmed the order passed by Estate Officer as well as the judgment passed by the learned Principal District Judge. However, the learned Single Judge has partly allowed the petition and held that the officer has not followed the procedure prescribed under Section 7 of the PPE Act, by which the damages can be decided. It has been held by the learned Single Judge that, in absence of notice under Section 7(3) of the PPE Act, the officer ought not to have determined the compensation under different heads. However, the learned Single Judge has observed that the Estate Officer can issue a fresh notice under Section 7(3) of the PPE Act, and pass a fresh order after following due procedure in accordance with law.
5. Being aggrieved and dissatisfied with the judgment passed by the learned Single Judge, the appellant has challenged the same on several grounds.
6. The first ground raised by learned advocate Ms.Sangeeta Pahwa for the appellant is with regard to the powers of Estate Officer in issuing the notice when the civil court by its order dated 13.5.2011 has restrained the Central Warehousing Corporation from taking the possession of the warehouse which was passed below Exh.5 (application for interim relief during the pendency of civil suit) in Regular Civil Suit No.85 of 2011.
6.1 The another contention raised by the learned advocate for the appellant is that the Estate Officer cannot interpret one of the condition of the agreement when the competent civil court has already pronounced his order interpreting the same clause in favour of the appellant.
6.2 The last argument raised by learned advocate for the appellant is with regard to the direction of the learned Single Judge by which the Estate Officer is permitted to issue fresh notice since the same was not the question under consideration before the learned Single Judge.
7. On the other hand, learned advocate Mr.D.K.Puj appearing for the respondent No.3 – Central Warehousing Corporation has supported the orders passed by the authority and judgment passed by learned Principal District Judge as well as the learned Single Judge. In support of his submission, he has relied upon an unreported decision of this Court dated 27.02.2012 passed in Letters Patent Appeal No.267 of 2012 and allied matters, in case of Silicon Cars Pvt. Ltd. through its Director Mukesh G.Jain and others vs. Central Warehousing Corporation, through Regional Manager and another (Coram: V.M.Sahai & A.J.Desai, JJ.), and submitted that, similar clause was interpreted by the Division Bench of this Court, and has held that the agreement provides that by an advance notice of six months any of the parties to the agreement can ask to vacate the warehouse before expiration of seven years which is mentioned in the first clause of the agreement.
8. We have heard learned advocates for the parties. It is an undisputed fact that the appellant entered into an agreement on first day of July 2005 with the respondent No.3 by which the respondent No.3 provided a warehouse at Central Warehouse, Surat, to the appellant for show room of car and service station etc. The first condition of the said agreement is reproduced hereinbelow.
“(1) M/s.KAL will utilize the storage space of 1340 sq.mtrs on reservation basis for a period of minimum 7 years w.e.f. 01/07/2005. The arrangement can be terminated by either party by giving 6 months advance notice, or charges in lieu thereof.”
9. It appears from the affidavit filed by respondent No.3 in the writ petition that the Secretary, Food, Civil Supplies & Consumer Affairs Department by his letter dated 6.5.2010 and 2.2.2011 requested the Managing Director of Central Warehousing Corporation at New Delhi to provide warehouses as many as were available, for storage of food grains etc. Pursuant to the first letter, the Central Warehousing Corporation by notice dated 8/10-9-2010 call upon the appellant to vacate the premises and hand over the possession of the warehouse in question. By the said notice it was made clear to the appellant that, as per clause 1 of the agreement, the notice is given and six months time was granted by notice dated 8/10-9-2010. The said notice 8/10-9-2010 is produced along with the affidavit-in-reply at page 100 of the paper book. Pursuant to second letter dated 2.2.2011, the Central Warehousing Corporation again issued notice dated 14.2.2011 to the appellant and call upon to vacate it before 7.3.2011.
10. Instead of handing over the possession as demanded by the respondent No.3, the Central Warehousing Corporation present appellant filed a Regular Civil Suit in the Court of learned Principal Senior Civil Judge at Surat against the present respondent No.3 and challenged the notice dated 14.2.2011 and prayed that the respondent No.3 shall be restrained from disturbing the possession of the disputed warehouse on the premise that the appellant/plaintiff was entitled to retain the possession for seven years as per clause 1 of the agreement. The appellant/plaintiff also prayed that during the pendency of the suit the respondent No.3 Corporation shall be restrained from dispossessing the plaintiff. The appellant has produced a copy of plaint as well as copy of application filed under Order 39 of Civil Procedure Code. The prayer made in the said application reads as under:
“Therefore, we the plaintiffs hereby pray that, 1. Your Honour may be pleased to pass such an order of interim injunction against the defendants of this suit, until the final disposal of the suit so that the defendants of this suit themselves or through their assistants, agents or power of attorney holders or accomplices and officers may not take or get anybody to take the possession of the suit property or any portion of it situated at Central Warehousing Corporation, Go- down No.1 (A) and (B), Central Warehousing Go-down, Varachha Road, District- Surat, Sub- District-Surat City, in the Varachha area of Surat City forcefully, by giving threats and pressurizing, without following the procedure as per law and they may not enter or get anybody to enter in our legal possession and they may not act or get anybody to act in such a manner which may create hindrance, obstacle or restrain us from doing the business on the suit property.
(Though the application is in vernacular language, i.e. Gujarati, the same is translated through Competent Officer of High Court of Gujarat).”
11. After hearing the parties, the learned Principal Civil Judge at Surat by his order dated 13.5.2011 allowed the application and granted injunction as prayed in para 8(1) of the application which is reproduced hereinabove. The learned Principal Civil Judge has interpreted the clause 1 of the agreement that the Corporation had no right to ask the appellant/plaintiff to vacate the property before expiration of seven years as per clause 1 of the agreement, and after completion of seven years only either of the party can exercise the right of giving notice of six months for vacating the suit premises. It is an undisputed fact that the Central Warehousing Corporation has not challenged the order passed by learned Principal Senior Civil Judge before any other higher forum and has become final.
12. The Estate Officer of Central Warehousing Corporation which is a Government of India Undertaking, initiated proceedings under the PPE Act by way of issuing a notice dated 23.6.2011 prescribed under the Act, as per Form – A prescribed under Section 4 of the PPE Act. The grounds for issuing notice reads as under:
“(1) Whereas an agreement dated 01.07.2005 was executed between M/s.Kataria Automobile Ltd., Surat and Central Warehousing Corporation.
As per Clause 1 of the Agreement, storage space of 1340 sq.mtr at Central Warehouse, SuratII, was alllotted for utilization by M/s.Kataria Automobile Ltd. For 7 years w.e.f. 01.07.2005 with provision to terminate the said arrangement by giving six months advance Notice by either party.
M/s.Kataria Automobile Ltd., also utilized 22 SQM open space as per Clause 2 of the agreement dated 01.07.2005.
(2) Whereas M/s.Kataria Automobile Ltd., have been issued a six months advance Notice dated 08.09.2010 by CWC under clause 1 of the agreement to vacate the above space on or before 07.03.2011 and handover the vacant possession of said space to Warehouse Manager, CW, SuratII after bringing the godown/premises in the same original condition in which it was before commencement of Agreement as per Clause 12 of Agreement.
(3) Whereas the above space is required for storage of foodgrain for distribution under P.D.S. and other notified commodities such as pulses, fertilizer, cement etc.
(4) Whereas subsequent Notices/Reminders have also been issued to M/s.Kataria Automobile Ltd. to vacate the above premises vide Notice/communication bearing No.11414 dated 14.02.2011 and No.11956 dated 28.02.2011.
(5) Whereas, despite above referred Notices and reminders M/s.Kataria Automobile Ltd., have not yet vacated the above premises. Thus M/s.Kataria Automobile Ltd., are in unauthorized occupation of 1340 SQM space of Godown No.1A & B + 22 SQM Open Space of Central Warehouse, SuratII Kapadra, Near GEB Office, Varachha Road, Surat – 395006, without permission of the Competent Authority.”
13. The matter was heard by the Estate Officer, and as stated hereinabove, the order was passed against the appellant, which is partly confirmed by the learned Single Judge.
14. In our view, the proceedings initiated by the Estate Officer, who is appointed under Section 3 of the PPE Act, is empowered to initiate proceedings as provided under the PPE Act as well as under the rules. Section 4 of the PPE Act reads as under:
“Sec.4 Issue of notice to show cause against order of eviction :- (1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public peremises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
(2) The notice shall -
(a) specify the grounds on which the order of eviction is proposed to be made; and [(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises, -
(i) to show cause, if any, against the propsoed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof; and
(ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.]
(3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.”
15. As per Section 4 of the PPE Act, he has to specify the ground on which the order of eviction is proposed to be made. As stated hereinabove, he has specifically narrated the grounds for proposed eviction order. It is an undisputed fact that the Estate Officer was not a party in the suit proceedings. He being an authorised officer, prima facie found that there are sufficient reasons to evict the person from a public premises. It is true that he has to opine that a person is an unauthorised occupation of a public premises or not, and thereafter if he comes to conclusion that the person is unauthorizedly occupying the premises, such person can be evicted. In the present case, the Estate Officer by reasoned order came to the conclusion that the Central Warehousing Corporation was in need of the warehouse and the appellant has not handed over the possession of the warehouse to the respondent No.3 though the Corporation has proceeded in accordance with clause 1 of the agreement. He has further held that the appellant was an unauthorised occupant since the Corporation had by it's notice/letter dated 8/10-9-2010, called upon the appellant to vacate the premises.
16. As far as the observations made by the learned Civil Judge is concerned, we are of the opinion that the learned Civil Judge has granted relief in favour of the appellant, however, it was made clear that the possession can be taken over by the party after following the procedure in accordance with law. The learned Single Judge has dealt with the same aspect in paras 31 and 32 of the judgment which reads as under:
“31. On a perusal of the reliefs claimed in the suits, strictly speaking, it cannot be said that the same were without jurisdiction as the reliefs claimed in the suit did not pertain to any proceeding under the PPE Act. Nonetheless, if the interim order of the trial court is read to preclude the estate officer from initiating proceedings under section 4 of the PPE Act pursuant to the notices issued by the CWC, the order would squarely fall within the ambit of section 10 of the Act, viz. injunction from taking action under the PPE Act.
32. The said situation has, however, been taken care of by the trial court which has observed that the injunction shall not come in the way of the respondents in taking action in accordance with law. Indubitably, the premises in question are public premises. Under the circumstances, it cannot be gainsaid that action in accordance with law would mean action taken under the provisions of the PPE Act. It has been emphatically argued on behalf of the petitioners that the respondents having not challenged the order of the trial court, the same has become final and as such, the estate officer and the appellate officer were not justified in ignoring the said order. However, considering the fact that the trial court while restraining the defendant from forcibly taking possession of the subject premises has given a liberty to the defendant to take possession by following procedure in accordance with law, the respondents had no reason to feel aggrieved by the said order and, therefore, had no reason to challenge the same. Insofar as the observations regarding the notices issued by the CWC are concerned, they are merely observations for the purpose of grant of interim relief in favour of the petitioners – plaintiffs.
17. We are also in agreement with the observations made by learned Single Judge in para 33 that once the proceedings are initiated under the provisions of PPE Act, the civil court looses its jurisdiction in deciding the dispute with regard to the public premises.
“33. Thus, the third respondent instead of challenging the order of the trial court took recourse to the liberty reserved to it and resorted to the provisions of the PPE Act. Therefore, as rightly held by both the authorities below, once proceedings under the PPE Act came to be initiated, the proceedings before the trial court were rendered otiose as the trial court has no jurisdiction to entertain a suit in respect of proceedings for eviction under the PPE Act. Thus, though at the time when the suit came to be entertained, the trial court may be said to have jurisdiction to entertain the same, as the dispute at the said stage arose out of the memorandum of agreement entered into between the parties, however, once proceedings under the Act came to be initiated, the trial court would lose jurisdiction to deal with the suit as the notices issued by the CWC have now culminated into proceedings under the PPE Act. It is then for the estate officer to decide as to whether or not the notices issued by CWC for eviction of the subject premises are in consonance with the memorandum of agreement as a consequence of which the petitioners can be said to be in unauthorised occupation of the subject premises. Thus, once the proceedings are initiated under the Act, if the civil court proceeds further with the suit, it would amount to entrenching upon the jurisdiction of the estate officer and the bar of jurisdiction would come into operation.”
18. In our opinion, the procedure adopted by the Corporation to evict the unauthorised persons i.e. appellant, through the competent officer under the provisions of PPE Act is a legal and appropriate one. The learned Civil Judge has restrained the Corporation which was the only defendant in the suit proceedings from taking forceful possession of the disputed warehouse from the appellant which was obeyed by the Corporation. However, the Corporation thought it fit to take recourse under provisions of the PPE Act. As far as the observations interpreting Clause 1 of the agreement, made by the Civil Judge is concerned, we would like to observe that this Court in case of Silicon Cars Pvt. Ltd. (Supra) has held that the agreement can be terminated by either party by giving six months advance notice or charges in lieu thereof. The condition No.1 in the present case is similar to the condition in the case of Silicon Cars Pvt. Ltd. (supra). The Estate Officer has taken a view in his capacity as an independent officer which in our view is permissible since he was not party in suit proceedings. The reasons assigned by learned Civil Judge, while interpreting the clause 1 of the agreement are not binding to us but we are bound to follow our own judgment passed in case of Silicon Cars Pvt. Ltd. (supra). While exercising extraordinary powers under Articles 226 and 227 of Constitution of India, the High Court would certainly have wide powers to interpret the disputed clause/s, even if the same is interpreted by a trial court in civil or other proceedings. In the instant case, the writ petition was filed under Articles 226 and 227 of the Constitution of India challenging the orders and judgment passed by the lower quasi-judicial and judicial officers for proceedings initiated under the PPE Act and not from suit proceedings.
19. As far as the arguments advanced by the learned advocate for the appellant about permitting the Estate Officer to issue fresh notice under Section 7 of the PPE Act is concerned, we are of the opinion that when the learned Single Judge as well as this Bench has come to the conclusion that the appellant was in unauthorised occupation of the public premises, the same is not required to be interfered with.
20. In view of the above, we are of the opinion that there is no infirmity in the impugned judgment passed by the learned Single Judge which would call for interference by this Court. The appeal is, therefore, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
21. Consequently, Civil Application No.6007 of 2012 does not survive and accordingly stands dismissed with no order as to costs.
22. Learned advocate Ms.Sangeeta Pahwa appearing for the appellant requested that the interim relief granted at the initial stage by the learned Single Judge may be continued for a period of six weeks to enable the appellant to approach the higher forum. We are of the opinion that since we have held that the appellant is an unauthorised occupant, the prayer made by the learned advocate cannot be accepted and therefore the same is rejected.
( V.M. SAHAI, J. ) ( A.J. DESAI, J. ) syed/