Whether Reporters of Local Papers may be allowed to see the judgment ?
NO 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge?
NO ========================================================= VITTHALBHAI BAPUBHAI PURABIYA - Petitioner(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance :
MR JAYANT P BHATT for Petitioner(s) : 1, MR RAKESH PATEL, AGP for Respondent(s) : 1 - 2, MS PAURAMI B SHETH for Respondent(s) :
3, ========================================================= CORAM :
HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 13/03/2012 CAV JUDGMENT
1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of the order passed by respondent No.1 dated 21.8.2010 in Eviction Case No.3 of 2010 and the judgment and order dated 18.8.2011 passed by the Principal Judge, City Civil Court, Ahmedabad in Regular Civil Appeal No.4 of 2011.
2. The facts emerging out of this petition are that the petitioner was Class IV employee and was working as Sweeper in the office of District Education and Training Center under respondent No.2 since 15.10.1956. In capacity as employee of respondent No.2, the petitioner was allotted rent free quarter at M.R. Hostel Compound at Shahibaug being quarter No.2 in the year 1958. The petitioner retired from service on attaining superannuation with effect from 31.1.1998. It is the case of the petitioner that the petitioner is occupying the said premises and is living with his family consisting of 5 members since 53 years. It appears from the record that there are 22 such one room quarters in the M.R. Hostel Compound. The said building was used as a student hostel for the students studying in R.C. High School, Shahibaug, Ahmedabad. However, thereafter various Government institutions such as Government State Text Book Board, Gujarat Examination Board, NCC and other offices are there.
3. It reveals from the record that by resolution dated 11.4.1977, the entire area comprising of 26810 sq. mtrs. was allotted to the Principal, Kendriya Vidhyalaya Sangathan - a school run by the Central Government by the competent authority namely Collector, Ahmedabad for which a Sanad has been issued in the name of respondent No.3 herein in Form No.D under the relevant provisions of the Land Revenue Rules. It further transpires from the record that after the said allotment was made by the District Collector, Ahmedabad, the other Government offices situated in the said compound were shifted to other places. Respondent No.3 thereafter on such an allotment having been made by the Government started construction in the remaining area and have established a school being Kendriya Vidhyalay School No.1, Shahibaug.
4. It is the case of the petitioner that right from 1958, the petitioner along with other similarly situated persons is occupying his quarter being quarter No.2 and no steps were taken by respondent No.3 to evict them till the eviction suit was filed before respondent No.1 for eviction of the petitioner from the said premises by an application dated 9.2.2010. It has been mentioned in the said application dated 9.2.2010 that the allotment of the land admeasuring 26810 sq. mtrs. was handed over to respondent No.3 wherein a condition was stipulated whereby the offices and the outhouses occupied by the persons shall be vacated as soon as the alternative arrangement is made. It has been specifically pointed out by respondent No.3 in the said application that the outhouses are in possession of Class IV employees of the Education Department who have retired from the Government service. Still, however, the same are not vacated and therefore, appropriate action needs to be taken.
5. It is the case of the petitioner that pursuant to the said application made by respondent No.3, respondent No.1 issued a notice dated 31.3.2010 as contemplated under Section 4(1) of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as "the Act") to the petitioner asking the petitioner to show cause and the same came to be registered as Eviction Case No.3 of 2010.
6. The petitioner thereafter filed a detailed reply to the said show cause notice and also submitted list of documentary evidence vide reply dated 25.5.2010. It is the case of the petitioner that without considering the reply to the show cause notice and framing issues for determination and without considering the submissions advanced before it, the competent authority vide order dated 21.8.2010 passed an order of eviction as contemplated under Section 5 of the Act.
7. The petitioner thereafter filed an appeal as contemplated under Section 9 of the Act before Principal Judge, City Civil Court, Ahmedabad wherein the said appeal came to be registered as Regular Civil Appeal No.4 of 2011. The said appeal, after hearing both the parties, came to be dismissed vide order dated 18.8.2011 by Principal Judge, City Civil Court, Ahmedabad confirming the order of eviction passed by the authority. Being aggrieved by the said orders, the present petition is filed under Article 226 and/or 227 of the Constitution of India.
8. Heard Mr. Bhatt, learned advocate for the petitioner, Mr. Rakesh Patel, learned AGP for respondent Nos.1 and 2 on advance copy served and Ms. Paurami B. Sheth, learned advocate for respondent No.3 on caveat.
9. Mr.
Bhatt, learned advocate for the petitioner has taken this Court through both the orders impugned. It is submitted that the petitioner was given rent free quarter way back in the year 1958 and since then, the petitioner is occupying the said quarter along with other family members. It is submitted that in view of the definition of word "unauthorized occupation" as contemplated under Section 2(h) of the Act, the petitioner cannot be labelled as "unauthorized occupant". It is submitted that the premises in question cannot be termed as "public premises" as the same is allotted to respondent No.3 which is a society registered under the Societies Registration Act and is managed by Human Resources Department of the Union of India and therefore, the premises in question occupied by the petitioner cannot be termed as public premises as it does not belong to the State Government or any of the authorities as defined under Section 2(f) of the Act. It is submitted that the proceedings initiated by the respondent authority lack jurisdiction as it is not an authority duly appointed as competent authority as contemplated under Section 3 of the Act and therefore, the very initiation of the proceedings lacks jurisdiction. It is submitted that the defect of jurisdiction cannot be cured and the very initiation of the proceedings is without any jurisdiction. It is submitted that the provisions of the Act are not applicable in the present case and the petitioner cannot be evicted without due process of law. It is submitted that even though the point of jurisdiction is not raised before the authorities below, it being question of law, it can be raised even before this Court in this petition. Mr. Bhatt, in order to buttress his argument, relied upon the judgment reported in the case of N.M. Engineer and others Vs. Narendra Singh Virdi and another, reported in AIR 1995 SC 448 as well as the decision in the case of State of Gujarat and Another Vs. Engineers, Contractors and Consultant, reported in 2006 (1) GLH 438. It is submitted that they are occupying the land in question about 50 years and they earn their livelihood by occupying the same. It is submitted that the Principal Judge as well as the authority have erred in passing the orders of eviction and therefore, the petition deserves to be allowed.
10. Mr.
Rakesh Patel, learned AGP for respondent Nos.1 and 2 as well as Ms. Paurami B. Sheth, learned advocate for respondent No.3 have supported the orders impugned in the present petition.
11. On considering the record of the petition, it transpires that the quarter in question was allotted to the petitioner in the course of his employment in the State Government and as recorded by the first authority, the father in law of the petitioner retired way back on 31.1.1998.
From the order passed by the first authority dated 21.8.2010, it transpires that the petitioner had filed written submissions before the first authority which have been considered by the authority below.
12. It is an admitted position that the said quarter was allotted to the petitioner in course of his employment which he would have been entitled to occupy only till the date of superannuation i.e. 31.1.1998.
It further transpires from the record that in fact the petitioner who was allotted the said quarter No.2 as a staff quarter cannot be permitted to continue in occupation. The first authority as well as the lower Appellate Court have rightly come to the conclusion that the employees who have retired and not in service cannot be permitted to continue in unauthorised occupation of the said premises. The present petitioner is, thus, not in legal occupation of the premises in question and is, therefore, an unauthorized occupant and a trespasser.
13. It may be noted that the contention that the competent authority - City Deputy Collector and the competent authority who issued the show cause notice and initiated the eviction proceedings is not authorised to do so, is not raised by the petitioner before the first authority as well as in the appeal and as such the same cannot be permitted to be raised in this petition. However, on consideration of the facts of the petition, the petitioner was working under respondent No.2, as aforesaid, and was given the premises in question as a staff quarter. Even though the State Government has allotted the land comprising of 26810 sq. mtrs., the Government is not in a position to give possession of the same because of unauthorized occupant of the petitioner and the State Government is required to give possession of the land upon which the premises in question is situated. It is an admitted position that the premises in question is situated within the jurisdiction of respondent No.1 and the City and Deputy Collector is the competent authority to initiate proceedings under the Act and therefore, the contention raised by the petitioner that respondent No.1 is not the competent authority is dehors the provisions of the Act. Even though respondent No.3 has been allotted the land, unless and until the possession is handed over, the premises in question remains under the jurisdiction of respondent No.2 herein. Therefore, the contention raised by Mr. Bhatt that the premises in question is not a "public premises" as defined under clause 2(e) and the contention that the petitioner cannot be termed as "unauthorised occupant" is baseless. Similarly, it is the case of the petitioner himself that he was allotted quarter No.2 in the course of his service in the State Government and therefore, as aforesaid, the petitioner is not authorised to occupy the same under any order of the Government and therefore, the contentions raised by Mr. Bhatt are meritless. On the contrary, on reading of the order passed in the appeal, it transpires that the petitioner had relied upon the Government Resolution dated 29.1.1966 which has been dealt with by the Appellate Court in the judgment impugned.
14. It, therefore, transpires from the record that the petitioner has been given due notice as contemplated under Section 4 of the Act and the respondent authority has followed due process of law before the order of eviction is passed.
15. In the case of State of Gujarat and another Vs. Engineers, Contractors and Consultant (supra), the Division Bench of this Court has decided, in facts of the said case before it, that in view of the provisions of Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992, the Civil Court had no jurisdiction and it was a coram non judice and because of the bar contained under the said Act, it had no authority to decide the question. With respect, the ratio laid down by the Division Bench of this Court in the case of State of Gujarat and another Vs. Engineers, Contractors and Consultant (supra) is not applicable to the present case. Similarly, in the case of N.M. Engineer and others Vs. Narendra Singh Virdi and another (supra), on facts, even if the question of jurisdiction is permitted to be raised, there is no material on record to show that the premises in question is not a public premises and the petitioner is in lawful occupation of the said premises. The order passed by the Appellate Court clearly indicates that no further contention was raised or ground has been raised by the present petitioner.
16. At this juncture, it would be appropriate to refer to the judgment in the case of Mangrol Taluka Panchayat Vs. Ranabhai @ Gagubhai Gigabhai & Ors., reported in 2008 (2) GLR 1109, wherein similar provisions have been interpreted.
"22. For deciding the rival contentions and controversy, it is relevant to take into consideration the relevant provisions. The relevant provisions under the Act are Section 2(d), 2(f),2(h), Section 4, Section 5(1). The said provisions read as under;
2. Definitions__In this Act, unless the context otherwise requires,__
(d) "premises"
means any land or any building or part of a building and includes___
(i) the garden, grounds and outhouses, if any, appertaining to such building or part of a building; and
(ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;
(f) " public premises" means any premises belonging to or taken on lease or requisitioned by, or on behalf of, the State Government, and includes any premises belonging to, or taken on lease by, or on behalf of__
(i) ------------
(ii) a panchayat constituted under the Gujarat Panchayats Ac, 1961, (Guj.VI of 1962);
(iii)-----------
(iv) -----------
(h) "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."
5. Eviction of unauthorised occupants.___ (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and...... the competent officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises; and there upon the order shall be deemed to have been duly served on all the persons concerned." (emphasis supplied).
23. From the conjoint reading of Section 2(d) and 2(f), it becomes clear that the premises in question is 'public premises' as contemplated under the said Act. Therefore, the provisions under the Act would be applicable and attracted in respect of the premises in question. This brings into picture the definition of the term "unauthorised occupation", which is provided under Section 2(h). As per the said provision, any person who occupies public premises, without authority, for such occupation, then he is in unauthorised occupation. The said term also includes continuance of occupation of the public premises by any person, even after the authority under which he was allowed to occupy the premises, expires or gets determined for any reason whatsoever.
24. The aforesaid definition makes it clear that, even in cases where a person is lawfully inducted in the premises i.e., a person gets occupation of the premises with permission of the authority for such occupation, yet he will be said to be in unauthorised occupation of the said premises as soon as the permission/authority under which he was allowed to occupy the premises expires or is determined for any reason whatsoever. The authority permitting the occupation of the public premises may get determined and come to an end on account of diverse eventualities e.g., retirement, death, termination of employment, person demitting the office, resignation or the competent officer cancelling the authority to occupy the premises. The list is only illustrative and not exhaustive. Hence, the authority to occupy the public premises may come to an end for diverse reasons and as soon as the authority gets determined, then immediately the occupation of the public premises would turn into "unauthorised occupation"."
17. In the facts of the case, it transpires that the petitioner was allotted the quarter, as aforesaid, in course of his service and therefore, the petitioner has no authority to occupy the same. Secondly, the premises in question has been allotted to respondent No.3 which is a Vidhyalay established under the Ministry of Human Resources Development, Union of India. Moreover, the premises in question, though allotted to respondent No.3, possession of the same has not been handed over to respondent No.3 which has resulted into initiation of these proceedings and till the possession is given, the same remains with the State Government and therefore, the proceedings initiated by both the authorities below under the Act are legal and proper. The petitioner who is trespasser has no right to continue in possession of the premises in question i.e. staff quarter No.2 which was allotted to the petitioner as he was working under respondent No.2.
18. The petition is, therefore, devoid of any merits and the same is hereby summarily rejected with no order as to costs.
[R.M.CHHAYA, J.] Mr.
Bhatt, learned advocate for the petitioner seeks stay of the judgment and order pronounced today for a period of eight weeks.
It may be noted that vide order dated 18.8.2011 passed in Regular Civil Appeal No.4 of 2011, the Principal Judge while dismissing the appeal had granted stay for a period of one month i.e. from 19.8.2011 to 18.9.2011. Thereafter, no ad-interim relief is either extended or granted by this Court. Hence, the request made by the learned advocate for the petitioner is rejected.
[R.M.CHHAYA, J.] mrpandya Top