(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 All these three Appeals, arising out of two different orders which were passed on different dates, are taken up for hearing since the dispute involved in the matters is with regard to the possession of two godowns No. 4A and 4B, situated at Central Warehousing Compound, Varachha Road, Surat, owned by respondent - Central Warehousing Corporation.
2 Brief facts of the case of the appellants in Appeals No.
501 of 2012 and 502 of 2012 are as under:
2.1 The appellants/petitioners were alloted storage space by respondent by executing an agreement. The appellant/petitioner – M/s Bhakti Auto (Dhruv Cars Pvt. Ltd) of Letters Patent Appeal No. 502 of 2012 in Special Civil Application No. 2269 of 2012 entered into an agreement with respondent Corporation, which was executed on 24.01.2005 and appellant/petitioner – M/s Bhavna Cars Pvt Limited of Letters Patent Appeal No. 501 of 2012 in Special Civil Application No. 2270 of 2012 executed an agreement with respondent Corporation on 01.04.2006. In both these agreements, the first condition of said Memorandum of Agreement contains that the concerned appellants/petitioners would utilize the storage space i.e. godowns No. 4A & 4B respectively for a minimum period of 7 years and in that very clause, the option is given to both the sides, that the agreement can be terminated by either party by issuing 6 months notice or payment in lieu thereof. In both the cases, the notices were issued on 08.09.2010. The appellants/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 appellants/petitioners under Section 4 of the Act and therein, he also informed them 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 appellants/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.
2.2 During the pendency of said application, the period of 6 months was over, hence, notice under the Act were issued. The appellants/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 appellants/petitioners to occupy the premises for minimum period of 7 years and therefore, the appellants/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 the appellant/ petitioner of Letters Patent Appeal No. 502 of 2012 in Special Civil Application No. 2269 of 2011 is concerned was getting over on 01.02.2012 and the appellant/petitioner of Letters Patent Appeal No. 501 of 2012in 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 appellants/petitioners have inducted third party namely M/s. Silicon Cars Pvt. Ltd. The Estate Officer granted time to learned Advocate appearing for the appellants/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, appellants/petitioners' liability to pay damage, passed an order on 07.10.2011 ordering eviction as well as making the appellants/petitioners 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 appellants/petitioners preferred two petitions being Special Civil Application No. 2269 of 2012 and 2270 of 2012 under Articles 226 and 227 of the Constitution of India.
3 Brief facts so far as the appellant in Letters Patent Appeal No. 267 of 2012 are as under:
3.1 The appellant/petitioner is an automobile dealer occupying space known as '4-A' & '4-B' in the space of Central Warehousing Corporation in anticipation that the Central Warehousing Corporation, i.e. respondent no.1 would execute document, where under the said premises would be allotted to them on clearing of the amount outstanding from the two car dealers i.e. M/s Bhakti Auto and M/s. Bhavna Cars Pvt. Ltd., in whose favour the premises was allotted earlier.
3.2 M/s.Bhakti Auto (Dhruv Cars Pvt Limited) and M/s Bhavna Cars Pvt. Ltd., were visited with proceedings and orders under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and those proceedings culminated into the order being passed on 7/10/2011. These orders were assailed in appeal as provided under the said Act, being Appeal No.103 of 2011 and Appeal No.104 of 2011 which came to be dismissed vide order dated 22/12/2011, and the appellate authority granted 60 days time to them to vacate the premises. Being aggrieved and dissatisfied with said order, the appellant/petitioners preferred two petitions being Special Civil Application No.1960 of 2012 under Article 226 of the Constitution of India.
4. The learned Single Judge after hearing the parties, dismissed the petitions and confirmed the Order dated 7.10.2011 passed by the Estate Officer of the respondent No.1 Corporation and the judgment and order dated 22.12.2011 passed learned Principal District Judge, Surat, whereby dismissed the appeals being Regular Civil Appeals No. 103 of 2011 and 104 of 2011 filed by the appellants under Section 9(3) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the “Act” for short) filed by the appellants.
5. The appellants of Letters Patent Appeal No. 267 of 2012 were not parties in the eviction proceedings undertaken by the authority under the Eviction Act and, therefore, they did not file any appeal before the learned Principal District Judge, Surat and had directly challenged the communication issued by the respondent – Central Warehousing Corporation dated 29.11.2011, by which, the Central Warehousing Corporation has directed the appellants to hand over vacant and peaceful possession of Godown Nos. 4A and 4B situated at Central Warehousing Compound, Varachha Road, Surat, within a period of three days.
6 The appellant i.e. Silicon Cars Pvt Limited of Letters Patent Appeal No. 267 of 2012 had entered into a Memorandum Of Understanding dated 7.12.2010 with the appellants of Letters Patent Appeals Nos. 501 of 2012 and 502 of 2012 i.e. M/s Bhavna Cars Pvt Limited and M/s Bhakti Auto (Dhruv Cars Pvt Limited) to carry on business of selling cars at Godown Nos. 4A and 4B situated at Central Warehousing Compound, Varachha Road, Surat, which was originally allotted to M/s Bhavna Cars Pvt Limited and M/s Bhakti Auto (Dhruv Cars Pvt Limited).
7 We have heard learned Advocate Mr. Sanjay D. Suthar, for the appellants – M/s Silicon Cars Pvt Limited, who is in possession of the godowns pursuant to the Memorandum of Understanding dated 7.4.2010. Mr. Suthar, learned Advocate for the appellants could not convince the court that there is legal right in favour of the appellant to continue with the possession of the Godowns No. 4-A and 4-B in absence of any agreement with the respondent – Central Warehousing Corporation who is the owner of the said two godowns. Though the Memorandum Of Agreements have been entered into between the original allottees and the appellant, no legal right would be created in favour of the appellant in absence of any valid agreement. It is pertinent to note that, as per the Memorandum Of Agreement entered between the Central Warehousing Corporation and M/s Bhavna Cars Pvt Limited and M/s Bhakti Auto (Dhruv Cars Pvt Limited) dated 1.4.2006 and 24.1.2005, though the possession of the godowns were handed over to said M/s Bhavna Cars Pvt Limited and M/s Bhakti Auto (Dhruv Cars Pvt Limited) on the condition that the party to agreement itself shall use the warehouse which was given to them. It was argued that, in the said Memorandum of Agreement, there is no condition that lesee will not sub-lease the godowns to any other party and, therefore, the appellant is entitled to continue with the possession. This argument is not acceptable to us since the Memorandum Of Agreement between the Central Warehousing Corporation and the original allottees deals with usage of the godowns only by the original allottees and not by any other person/s.
8 The learned Advocate appearing for the appellants in Letters Patent Appeal No. 501 of 2012 and 502 of 2012 Ms.Kruti M. Shah submitted that the learned Single Judge has dismissed the petitions on the ground that the appellants/ petitioners have suppressed the material fact about handing over the possession of godown Nos. 4A and 4B to M/s Silicon Cars Pvt Limited and relying upon the same, the learned Single Judge has wrongly confirmed the order passed by the Estate Officer of the respondent – Corporation as well as the judgment and order passed by the learned Principal District Judge, Surat, in the appeals preferred under the provisions of the Public Premises Eviction Act.
9 We have also heard learned Senior Counsel Mr. Mihir Joshi, assisted by Mr. D.K. Puj for the respondent - Central Warehousing Corporation.
10 We have perused the judgment and documentary evidence relied upon by the Advocates for the appellants in these three appeals. As far as the appeal filed by M/s Silicon Cars Pvt Limited is concerned, the learned Judge has rightly observed in paragraph 6 which reads as under :
“6. This Court is unable to agree with the submissions canvased on behalf of the petitioner. This petition being bereft of merits it deserves rejection for the following reasons, namely;
a) The petition is misconceived and could not have been maintained under Article 226 of the Constitution, as no right of fundamental nature much less any statutory right is said to have been abridged on the part of the action of the respondent no.1.
b) The respondent has carried out its process against the original allottees, namely M/s Bhavna Cars Pvt Ltd and M/s Bhakti Auto, and those proceedings have been culminated into ultimate order of rejection of appeals, then, when there is no nexus of any kind between present petitioner and the respondent no.1, petitioner could not have maintained this petition. At this stage, it is brought to the notice of the Court that said two companies, viz. M/s Bhavna Cars Pvt Ltd and M/S Bhakti Auto have also preferred Special Civil Applications, which have been requested to be circulated. Therefore, this Court, without making any observation qua challenge to the orders of the competent authority, preferred by M/s Bhavna Cars Pvt. Ltd and M/s Bhakti Auto, while examining the prayers in this petition and on the basis of averments mentioned in this petition, this Court is of the view that this petition is hopelessly merit less and it deserves an outright rejection as no iota of right is established in favour of present petitioner so as to invoke jurisdiction of this Court. The very existence of the petitioner on the premises was not authorised. The letter pressed into service indicating by the officer of the Warehousing Corporation is that on clearance of outstanding the request will be considered, cannot be said to be a letter of promise which has goaded or persuaded or compelled the petitioner to act their upon. The petitioner's acting there upon cannot be said to be an act which is based upon the promise held out against the petitioner or to the petitioner so as to encourage the petitioner to incur expenses on the basis of such promise. Assuming for the sake of arguments, that was a promise, then also, the promise which is not enforcible under law cannot be said to be subject matter of petition under Article 226 of the Constitution of India.”
11 We are in complete agreement with the above referred observations of the learned Single Judge and we hold that the appellants/petitioners of Letters Patent Appeal No. 267 of 2012 had no legal right over the property.
12 As far as the appellants of Letters Patent Appeals No.
501 of 2012 and 502 of 2012 are concerned, the submission made by the learned Advocate for the appellants is about interpreting the Clause (1)/Condition (1) of the Memorandum Of Agreements dated 24.1.2005 and 1st April, 2006. The same reads as under:
“Memorandum of Agreement dated 24.1.2005 - M/s BA will utilize the storage space of 700 Sq. Mts on reservation basis for a period of minimum 7 years w.e.f. 1/2/2005, the agreement can be terminated by either party by giving 6 months advance notice or charges in lieu thereof.”
“Memorandum of Agreement dated 1.42006 - M/s BCPL will utilize the storage space of 700 Sq. Mts on reservation basis for a period of minimum 7 years w.e.f. 01/04/2006, the agreement can be terminated by either party by giving 6 months advance notice or charges in lieu thereof.”
13 The submission made by the learned Advocate for the appellants that the appellants should not have been evicted before the period of 7 years is not acceptable since the Clause (1) of the Memorandum Of Agreements itself suggests that the agreement can be terminated by either party by giving six months advance notice or charges in lieu thereof. It is an undisputed position that the notices were given as per the Agreements and thereafter the eviction orders were passed by the authorities.
14 At this stage, we would like to note that, though, the learned Single Judge has not dismissed the petitions only on the ground of suppression of fact that the godowns were transferred to third party by the appellants but number of reasons are assigned by the learned Single Judge for dismissing the petitions which are mentioned in paragraph 18 of the judgment passed in Special Civil Application Nos.2269 of 2012 and Special Civil Application No. 2270 of 2012 are reproduced hereunder.
“18..........
(I) 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.
(II) 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.
(III) 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.
(IV) 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 merit less, deserve to be rejected and is accordingly rejected with costs.”
15 We are in agreement with the reasons assigned by the learned Single Judge while dismissing the petitions. We are of the opinion that the appellants had lost interest in using the godowns since April, 2010 when they entered into Memorandum of Agreement with M/s Silicon Cars Pvt Limited. They had handed over the possession of the godowns to third party i.e. Silicon Cars Pvt Limited (appellant of Letters Patent Appeal No. 267 of 2012). The Order of the Estate Officer of the Central Warehousing Corporation, confirmed by the learned Principal District Judge, Surat, while dismissing the appeals filed by the appellants, the learned Single Judge after elaborate reasonings has also confirmed the orders passed by the Estate Officer of the Central Warehousing Corporation as well as the Principal District Judge, Surat. Though, the scope of appeal under Clause-15 of the Letters Patent is very limited, we have thoroughly gone through the case and we are of the opinion that the conduct of the appellants of Appeal Nos. 501 of 2012 and 502 of 2012 are required to be deprecated. On the one hand, they are parting with the possession of godowns to the third party in breach of agreement which was entered into between the Central Warehousing Corporation and the appellants and on the other hand are insisting that they shall not be penalized for continuing with indirect possession of the godowns for which the eviction notices were issued.
16 In view of the above factual aspects of the matter, we do not see any merits in the appeals. However, the appellant of Letters Patent Appeal No.267 of 2012 i.e. Silicon Cars Pvt Limited who had entered into a Memorandum Of Understanding on 7th April, 2010 with the original allottees can be permitted to continue its business for two months as requested but on condition that the appellant–Silicon Cars Pvt Limited shall pay up the entire outstanding dues of the respondent Corporation within a period of one week from today.
17 If the appellant–Silicon Cars Pvt Limited pays the entire dues of the respondent– Corporation either from the original allottees or from Silicon Cars Pvt Limited itself, the respondent – Corporation shall permit the Silicon Cars Pvt Limited to continue its business s upto 30th April, 2012.
18 With the aforesaid directions, all the three appeals are dismissed. No order as to costs.
19 In view of the order passed in the main appeals, Civil Application No. 2137 of 2012, Civil Applications No. 2515 of 2012 and 2416 of 2012 do not survive and are dismissed accordingly.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair