Gujarat High Court
Kataria vs Estate
Author: Harsha Devani
Bench: Harsha Devani
SCA/1687/2012 52/ 52 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No.1687 of 2012
With
SPECIAL
CIVIL APPLICATION No.1808 of 2012
For
Approval and Signature:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment?
2
To
be referred to the Reporter or not?
3
Whether
their Lordships wish to see the fair copy of the judgment?
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?
5
Whether
it is to be circulated to the civil judge?
=========================================
KATARIA
AUTOMOBILES LTD THRO DIRECTOR RAJENDRAKUMAR S - Petitioner(s)
Versus
ESTATE
OFFICER & 2 - Respondent(s)
=========================================
Appearance:
Special
Civil Application No.1687/2012
MRS
SANGEETA N PAHWA for
Petitioner(s): 1,
None for Respondent(s): 1 - 2.
MR RK MISHRA
for Respondent(s): 3,
MR MIHIR JOSHI, SR. ADVOCATE with MR DK PUJ
for Respondent(s): 3,
Special
Civil Application No.1808/2012
MR
SUDHIR NANAVATI, SR. ADVOCATE with MRS VD NANAVATI for Petitioner(s):
1,
MR RK MISHRA for Respondent(s): 1, 3,
None for
Respondent(s): 2,
MR HARIN RAVAL, SR. ADVOCATE with MR DK PUJ for
Respondent(s): 3,
=========================================
CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
Date
: 10/04/2012
COMMON
ORAL JUDGMENT
1. Since both these petitions raise similar questions of fact and law, they were taken up for hearing together and are disposed of by this common judgment.
Special Civil Application No.1687/2012
2. The facts as appearing in the petition stated briefly are that the petitioner 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. The subject premises were given to the petitioner as Godown 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.
3. 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.
Special Civil Application No.1808/2012
4. The facts as appearing in the petition are that the petitioner is a private limited company engaged in the business of selling cars in the local market and for that purpose, the petitioner company has entered into an agreement with Hyundai Motor India Ltd. for dealership of sales and service of Hyundai cars for the district of Surat. The petitioner entered into an agreement dated 5th October, 2006 with Hyundai Motor India Ltd. pursuant to which the petitioner also entered into an agreement dated 29th January, 2004 with the third respondent- Central Warehousing Corporation. Under clause (1) of the said agreement, the petitioner was required to utilise the storage space of 1100 square metres on reservation basis for a period of minimum seven years with effect from 1st February, 2004. The arrangement could be terminated by either party by giving six months' advance notice or charges in lieu thereof.
5. It appears that prior to the execution of the memorandum of agreement, the third respondent had, vide letter dated 17th November, 2003, invited the petitioner to submit a concrete proposal for its showroom. Vide letter dated 16th December, 2003, the Deputy Manager of CWC informed the petitioner that their proposal dated 15th September, 2003 was approved by the competent authority for allotment of 1340 square metres storage space in godown No.1A and 1B at CWC, Surat-II for the purpose of operating Hyundai showroom and service station on seven years' reservation basis.
6. It is the case of the petitioner that it had invested a sum of Rs.70 to 80 lakhs and installed various plants and machineries required to do its business and that though the minimum period of seven years was given and there is no provision prescribed for extension of period beyond seven years, the petitioner made an application for extension of reservation period vide its letter dated 26th March, 2010 addressed to the third respondent.
7. However, vide notice dated 8th September, 2010, the third respondent informed the petitioner that the validity of the agreement dated 29th January, 2004 was going to expire on 31st January, 2011 hence, the petitioner should vacate the premises in question alongwith the open space being utilised by the petitioner on or before 31st January, 2011 and to hand over vacant possession thereof to the third respondent. On 15th December, 2011, the petitioner once again requested the third respondent to renew/extend the arrangement. However, the third respondent did not accept the request and again reminded the petitioner to hand over vacant possession of the premises in question after bringing down the godown/premises in the same original condition in which it was before commencement of the agreement as per clause 13 of the agreement on or before 31st January, 2011. Thereafter, on 23rd June, 2011, the first respondent gave final eviction notice to the petitioner mentioning that the petitioner is in unauthorised occupation of the public premises and should vacate the same failing which appropriate order for eviction and damages for unauthorised occupation and interest would be passed. The petitioner upon receipt of the said notice immediately gave its reply on 9th July, 2011 and also submitted written arguments before the authority on 2nd August, 2011. The first respondent - estate officer passed the impugned order dated 22nd September, 2011 holding that the petitioner is an unauthorised occupant of the premises and, therefore, should vacate the premises and hand over the possession on or before 22nd February, 2012 and further holding that the petitioner is liable to pay the amount of damages, restoration charges, cost and interest.
8. In the meantime, the petitioner had filed Regular Civil Suit No.38/2011 in the court of the Principal Senior Civil Judge, Surat for declaration and injunction that the third respondent, their agents and servants may not disturb the lawful possession of the petitioner with regard to the subject premises without following due process of law and further to restrain the third respondent from interfering with the lawful business being carried out by the petitioner on the subject premises. The petitioner also moved an application seeking temporary injunction which came to be allowed by an order dated 13th May, 2011 in terms of paragraph 8(1) of the injunction application.
9. Being aggrieved by the order dated 22nd September, 2011 passed by the estate officer, the petitioner filed an appeal under section 9 of the PPE Act before the appellate officer, viz., the Principal District Judge, Surat being Regular Civil Appeal No.98/2011. The appellate officer, by the impugned order dated 22nd December, 2011, dismissed the appeal and confirmed the order passed by the estate officer. Being aggrieved, the petitioner has filed the present petition under Article 227 of the Constitution of India.
10. The challenge to the impugned order passed by the appellate officer is in two parts. Firstly, to the order of eviction passed under section 5 of the PPE Act and secondly, to the order assessing damages under section 7 of the said Act. In the facts and circumstances of the case, and considering the view that the court is inclined to take in the matters, each part is dealt with separately.
11. Reference may, therefore, firstly be made to the submissions advanced by the learned advocates on the first part of the order viz., the order of eviction.
12. Vehemently assailing the impugned order, Mrs. Sangeeta Pahwa, learned advocate appearing on behalf of the petitioner in Special Civil Application No.1687/2012 invited attention to clause (1) of the memorandum of agreement dated 1st July, 2005 to submit that under clause (1) of the said agreement, the petitioner is to utilise the storage space on reservation basis for a minimum period of seven years with effect from 1st July, 2005. Under the circumstances, the decision of the authority that the petitioner is occupying the premises unauthorisedly is illegal and arbitrary. It was pointed out that pursuant to the notice dated 14th February, 2011 issued by the third respondent for vacating the premises in question, the petitioner had instituted a civil suit being Regular Civil Suit No.85/2011 in the court of the learned Principal Senior Civil Judge, Surat wherein on the application for interim injunction filed by the petitioner, the civil court had granted interim injunction restraining the defendant, that is the third respondent and their agents and servants from forcibly dispossessing the petitioner and without following due procedure in accordance with law. Attention was invited to the order passed by the civil court on the injunction application to demonstrate that the civil court has specifically held that the notices dated 8th September, 2011 and 14th February, 2011 issued by the defendant are premature. The attention of the court was also drawn to the notice issued by the first respondent under section 4 of the PPE Act to point out that the same was based upon the notices dated 8th September, 2010 and 14th February, 2011 which the civil court had held to be premature. It was submitted that the notice under section 4 has been issued on the basis that pursuant to the notices dated 8th September, 2010 and 14th February, 2011, the occupation of the petitioner of the suit premises had become unauthorised with effect from 7th March, 2011. According to the learned counsel once the civil court had held that the notices are premature, it was not permissible for the estate officer to place reliance upon the said notices for issuing the notice under section 4 of the PPE Act, on the ground that the petitioner is an unauthorised occupant. Referring to the provisions of section 4 of the PPE Act, it was submitted that the authority can take proceedings under the said section only if the party is in unauthorised occupation. Referring to the definition of 'unauthorised occupation' as defined in clause (g) of section 2 of the PPE Act, it was pointed out that a person can be said to be in unauthorised occupation of any public premises if he is in occupation of the said premises without authority for such occupation and includes the continuance of occupation by any person of the public premises after the authority under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. It was submitted that in the facts of the present case, the minimum period of reservation was seven years hence, it cannot be said that the authority under which the petitioner was permitted to occupy the premises had expired and in view of the fact that the notices dated 8th September, 2010 and 14th February, 2011 had been held to be premature by the civil court, it cannot be said that the authority had been determined. In the circumstances, when the petitioner is not in unauthorised occupation of the premises in question, the initiation of the proceedings by the competent authority itself was bad. In support of her submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of State of Punjab and others v. Gurdev Singh and Ashok Kumar, AIR 1992 SC 111 wherein it has been held that if an action is void or ultra vires it is enough for the court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs. But nonetheless the impugned order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or court.
12.1 It was submitted that in the facts of the present case, the civil court had passed an order holding that the notices dated 8th September, 2010 and 14th February, 2011 are premature which order has not been challenged by the third respondent and has become final. Under the circumstances, unless the said order has been challenged, the same cannot be ignored. It was submitted that both the authorities below namely, the estate officer as well as the appellate officer have recorded findings to the effect that the order passed by the civil court has become infructuous, which finding is bad in law. It was, accordingly, submitted that the impugned order holding that the petitioner is an unauthorised occupant of the subject premises is, therefore, bad in law and as such, deserves to be quashed and set aside.
13. Mr. S.I. Nanavati, learned Senior Advocate for the petitioner in Special Civil Application No.1808/2012 assailed the impugned order submitting that under clause (1) of the memorandum of agreement, the petitioner is entitled to utilise the subject premises for a minimum period of seven years and that the six months' advance notice comes into play after seven years are over. Referring to the notice dated 8th September, 2010, it was pointed out that the same had been given during the lifetime of the agreement. It was submitted that pursuant to the notice dated 14th February, 2011, the petitioner had instituted a suit being Regular civil Suit No.38/2011 seeking a permanent injunction against the original defendant - Central Warehousing Corporation, the third respondent herein, from forcibly dispossessing the petitioner and from taking over possession of the subject premises without following due procedure in accordance with law. By an order dated 13th May, 2011, the civil court had allowed the petitioner's injunction application in terms of paragraph 8(1) thereof till the final disposal of the suit. The civil court while granting temporary injunction had observed that the notice dated 14th February, 2011 issued by the third respondent is premature. It was submitted that the order of injunction had been made after hearing both the parties and that there was no challenge to the said order by the third respondent. It was urged that at the time of issuance of the notice dated 23rd June, 2011 under section 4 of the PPE Act, the estate officer may not be aware of the order passed by the civil court. However, the fact regarding the pendency of the suit and the temporary injunction which continues till date was brought to the notice of the estate officer by the petitioner in its reply filed in the said proceedings. From July, 2011, the estate officer was informed that the interim injunction had been granted. However, the estate officer has brushed aside the order passed by the civil court by observing that the civil court had restrained CWC from taking possession of the suit property forcibly without following the procedure of law and that, therefore, the interim injunction does not preclude him from passing appropriate orders for eviction of unauthorised occupants ignoring the fact that the initiation of the proceedings was based upon the notice dated 14th February, 2011 and 8th September, 2010 which had been held to be premature by the civil court. Referring to the impugned order passed by the appellate court, it was pointed out that the appellate officer has held that once proceedings under the relevant clause are initiated, the order passed by the civil court does not remain in force and becomes infructuous. It was submitted that thus, the appellate officer was aware of the fact that in the light of the order passed by the civil court, proceedings under the PPE Act could not have been initiated. Hence, with a view to bring the impugned order passed by the estate officer out of the order passed by the civil court, the appellate officer had observed that the order passed by the civil court had become infructuous.
13.1 Reliance was placed upon the decision of the Supreme court in the case of Krishnadevi Malchand Kamathia and others vs. Bombay Environmental Action Group and others, (2011) 3 SCC 363 to contend that it is a settled legal position that even if an order is void it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion, the order is void. Whether the order is valid or void cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. It was submitted that in the light of the fact that the civil court had granted interim injunction in favour of the petitioner by holding that the notices dated 8th September, 2010 and 14th February, 2011 are premature, the estate officer as well as the appellate officer were not justified in holding that the said order has become infructuous without the same having been challenged before the appropriate forum.
13.2 Insofar as the last part of the order passed by the appellate officer is concerned, both the learned counsel submitted that the appellate officer has no authority to pass the order directing that if it is found that the allotment was not in accordance with the provisions of law, then to hold inquiry into the matter and to determine loss occurred, amount not recovered from allottee on account of such unauthorised action on the part of the concern and to recover the loss from him. The learned counsel submitted that in case there is any default on the part of the officers of the Corporation in allotting the godowns to the petitioners, the petitioners cannot be penalized and no amount can be recovered from them. Hence, the order passed by the appellate officer to that extent is also bad in law.
13.3 It may be noted that in Special Civil Application No.1687 of 2012, initially, Mr. R.K. Mishra, learned advocate had appeared on behalf of the third respondent. Subsequently, Mr. Mihir Joshi, Senior Advocate appeared with Mr. D.K. Puj on behalf of the third respondent and made submissions. Mr. Mishra had submitted that under section 15 of the PPE Act, there is a bar against the civil court entertaining suits or proceedings in respect of eviction of any person who is in unauthorised occupation of any public premises. Hence, the civil court had no jurisdiction to entertain the suit. Moreover, once proceedings under the PPE Act are taken, the civil court loses jurisdiction to continue with the suit. It was submitted that the moment the estate officer exercised powers under section 4 of the PPE Act, the order of the trial court ceased to be operative and that the moment the CWC reported to the civil court as regards the initiation of proceedings under section 4 of the Act, the order of the civil court became infructuous and hence, the earlier notices could be acted upon. It was submitted that since six months' advance notice for vacating the premises in question had been issued vide notice dated 8th September, 2010, there was no requirement for issuing any further six months' notice. Upon lapse of six months from the notice dated 8th September, 2010, the occupation of the petitioner of the subject premises became unauthorised. Under the circumstances, it was permissible for the respondent-CWC to take recourse to appointment of estate officer, who had issued a fresh notice for hearing. Inviting attention to the affidavit-in-reply filed on behalf of the third respondent, it was pointed out that under acute necessity for preservation/storage of food grains, the premises were needed and accordingly notice of termination came to be issued so that the premises could be used for stocking the food grains to be distributed under the Public Distribution System to be made available in pursuit to the scheme of the Government of India coupled with the State Government. It was submitted that thus, the premises in question are required to meet with the requirements of stocking the food grains hence, in the larger public interest, it was necessary for the third respondent to get the premises vacated. It was submitted that the petitioners had not challenged the issuance of notice by the estate officer before the trial court and as such, they have acquiesced with the procedure adopted by the estate officer. It was submitted that the estate officer has not been told that he cannot act upon the notices issued earlier. It was argued that the six months' period envisaged in clause (1) of the memorandum of agreement was over on 7th March, 2011 and the estate officer issued notice under section 4 of the PPE Act on 23rd June, 2011 and passed the order on 4th October, 2011. The order passed by the estate officer is in consonance with the provisions of section 4 and 5 of the PPE Act. Under the circumstances, in the absence of any jurisdictional error being pointed out, there is no warrant for exercise of powers under Article 227 of the Constitution of India. It was submitted that even if there is an error, if the object sought to be achieved is good, in the interest of justice, no relief should be granted so as to save the public premises.
14. Mr. Mihir Joshi, learned senior advocate invited attention to the order passed by the civil court to point out that the civil court had held that the defendant also has a right to get possession of the suit premises by adopting due process of law and this right of the defendant will not be deprived even after injunction is granted in favour of the plaintiff. It was contended that what the civil court has said is that the respondent should not take possession forcefully. However, the right to take legal proceedings and to get the rights adjudicated has not been barred. Inviting attention to the relief granted by the civil court, it was pointed out that temporary injunction had been granted to the effect that the respondent should not forcibly dispossess the petitioner or take possession of the subject premises without following procedure in accordance with law. It was further submitted that as to whether a person is in unauthorised occupation of public premises is a matter which has to be decided by the estate officer under section 5 of the PPE Act and that it is the satisfaction of the estate officer which is relevant on the question as to whether the public premises are in unauthorised occupation. In the facts of the present case, the petitioners have invoked section 9 of the Code of Civil Procedure contending that the notice pursuant to which the civil suit was instituted is prior to initiation of proceedings under section 4 of the Act and, therefore, adjudication by the civil court is permissible. This very contention is to be examined by the estate officer namely as to whether the petitioner is in unauthorised occupation of the suit premises. Under the circumstances, there cannot be overlapping of jurisdiction and that section 9 of the Code must give way to section 10 and 15 of the PPE Act. It was submitted that the relief prayed for in the suit clearly falls within the ambit of section 5 of the PPE Act and as such, the civil court had no jurisdiction to entertain the suit in question. It was further submitted that on an interpretation of the provisions of section 10 of the PPE Act, it is apparent that the court cannot grant any interim injunction in respect of any action taken or to be taken pursuant to any power conferred by or under the Act. It was, accordingly, urged that the impugned order passed by both the authorities are in consonance with the provisions of the PPE Act and as such, there is no warrant for any interference by this court.
15. Mr. Harin Raval, learned senior advocate appearing on behalf of the third respondent in Special Civil Application No.1808/2012 submitted that it is an undisputed position that the Central Warehousing Corporation is a statutory authority governed by the Warehousing Corporations Act. The petitioner had made an application for storage facility for Hyundai showroom and service station and that parties had entered into an agreement dated 29th January, 2004 for a period of seven years. The case of the CWC is that the period of seven years has expired and the right whether or not to grant extension is that of the respondents. Vide notice dated 8th September, 2010, the petitioner was called upon to deliver possession on expiry of the period however, since the petitioner did not comply with the same, requisite notice came to be issued under section 4 of the PPE Act. It was submitted that the petitioner had approached the civil court seeking declaration and permanent injunction against the notice dated 14th February, 2011 issued by the third respondent. Referring to the nature of the suit and the relief claimed therein, it was pointed out that there is no prayer seeking declaration that the action of the defendants of not extending the period of reservation is bad. Likewise, there is no prayer that the plaintiff is entitled to a direction to extend the reservation. It was submitted that clause (1) of the memorandum of agreement does not mean that even if the reservation is not renewed, the same would continue. Referring to the communication dated 21st January, 2011 of the petitioner addressed to the third respondent, it was pointed out that even the petitioner has understood that the reservation is for a period of seven years and has, therefore, sought renewal of the contract for another seven years after the completion of the contract in question. According to the learned counsel, the order passed by the civil court granting temporary injunction in favour of the petitioner has to be read as a whole, inasmuch as, even after granting injunction, the court has kept the right to take possession under the statute intact. It was submitted that the injunction granted by the civil court does not restrict the right of the defendant to resort to legal remedies and that the trial court was conscious of the fact that the nature of the injunction was only to restrain the defendant from forcefully dispossessing the plaintiff.
15.1 It was further pointed out that the period of reservation under the memorandum of agreement was for seven years from 1st February, 2004 which came to an end on 31st January, 2011 and as such, after 31st January, 2011, there is no authorisation to continue hence, the petitioner's occupation of the subject premises is unauthorised. Referring to section 2(g) of the PPE Act, it was pointed out that the period under which the petitioner was allowed to occupy the premises has expired and as such, the occupation by the petitioner has become unauthorised. It was submitted that section 10 of the PPE Act postulates that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act and as such, the injunction of the civil court cannot be said to be read as counter to section 10 of the Act. It was further submitted that under section 15 of the Act, there is a bar against the civil court entertaining any suit or proceeding in respect of eviction of a person who is in unauthorised occupation and hence, the civil court does not have the jurisdiction to decide whether or not a person is in unauthorised occupation of any public premises. It was, accordingly, urged that the orders passed by the authorities below are just, proper and legal and do not call for any intervention by this court.
16. In rejoinder, Mrs. Sangeeta Pahwa, learned counsel for the petitioner invited attention to the order passed by the civil court on the application for temporary injunction made by the petitioner wherein it has been observed that "the defendant has contended that it gave notices to the plaintiff dated 8th September, 2010 and 14th February, 2011, but when there is a condition in the agreement that the plaintiff shall utilise the suit property for minimum period of seven years from the date of agreement i.e. 1st July, 2005, it means seven years will complete on 1st July, 2012 and, therefore, according to the terms and conditions of the agreement, the defendant has no right to ask the plaintiff to vacate the suit property before that date. It was submitted that under section 2(g) of the PPE Act, the estate officer cannot go into the issue as to whether the lease was validly terminated and, therefore, section 15 and section 10 of the Act would not be attracted in the facts of the present case. It was contended that in exercise of powers under section 4 and 5 of the PPE Act, the estate officer cannot interpret clause (1) of the memorandum of agreement and hold contrary to the observations made by the civil court. As regards the contention that the civil court could not have granted injunction in view of the provisions of section 10 of the Act, it was submitted that section 10 will come into play when section 4 notice is issued and not before that. Referring to the provisions of section 15 of the Act, it was submitted that what is barred under the said section, is entertainment of a suit or proceeding in respect of eviction of any person who is in unauthorised occupation of any public premises. Thus, section 15 would operate after proceedings are initiated under section 4 of the PPE Act and that there is a bar against the civil court entertaining any suit or proceeding in respect of any proceedings initiated under the provisions of the said Act. The bar of jurisdiction, however, would not be attracted in the facts of the present case where the subject matter of challenge was notices issued by CWC, and not notices issued by the estate officer under the provisions of the PPE Act. It was further submitted that the contention regarding bar of jurisdiction having not been raised before the civil court, it is not permissible for the petitioners to raise the same before this court for the first time. In support of the said submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Ramniklal Devchand and others vs. Board of Trustees of the Port of Bombay, 1994 Suppl. (1) SCC 506, wherein it was urged that the point regarding bar under section 15 of the Act had not been agitated before the trial court, and the Supreme Court upheld the order passed by the High Court not permitting the said question to be raised before it. It was, accordingly, submitted that the question of jurisdiction of the trial court to entertain the suit could not have for the first time been raised before the estate officer or the appellate officer without the same having been raised before the trial court.
17. In rejoinder, Mr. S.I. Nanavati, learned counsel for the petitioner submitted that though it has been contended by the respondents that in view of section 15 of the Act, there is a bar of jurisdiction against the civil court entertaining the suit, however, there is no pleading in the written statement as regards bar of section 15 of the Act. What is subject matter of challenge in the suit pertains to a contractual relation and the notice issued under section 4 of PPE Act was not subject matter of challenge before the civil court and as such, there was no bar against the civil court entertaining the suit.
18. The undisputed facts of the present cases are that in both the cases, memorandum of agreements came to be executed between the petitioners and the Central Warehousing Corporation, whereby under clause (1) thereof, the petitioners were to utilise the storage space on reservation basis for a minimum period of seven years. The said clause further provided that the arrangement can be terminated by either party by giving six months' advance notice, or charges in lieu thereof. However, the petitioners had made individual applications for extension of the period of reservation to the CWC seeking further extension of the period of reservation. Subsequently, before the expiry of the minimum period of seven years, CWC vide individual notices dated 8th September, 2010 called upon the petitioners to vacate the suit premises. The petitioner in Special Civil Application No.1687/2012, that is, Kataria Automobiles Ltd. was called upon to vacate the suit premises on or before 7th March, 2011, that is, before the expiry of the period of seven years. Insofar as the petitioner in Special Civil Application No.1808/2012, that is, M/s Navjivan Motors Pvt. Ltd. is concerned, by the notice dated 8th September, 2010, the said petitioner was called upon to vacate the premises on or before 31st January, 2011, that is, upon expiry of the period of reservation under the memorandum of agreement. At the relevant time, neither of the petitioners took any action in respect of the said notice. Subsequently, CWC issued notices dated 14th February, 2011 to each of the petitioners calling upon them to vacate the suit premises within the period specified under the earlier notice dated 8th September, 2010. At this stage, both the petitioners instituted civil suits in the court of the learned Principal Senior Civil Judge at Surat seeking permanent injunction against the defendant -CWC from forcibly dispossessing the petitioners or taking over possession of the suit premises without following due procedure in accordance with law. On the interim injunction application made by the petitioners seeking similar relief, the trial court granted temporary injunction in their favour. While doing so, the trial court observed thus:
"[7] ... ... ... there is a possibility that if defendant is not restrained then defendant will take possession of the suit property from the plaintiff without due process of law. Therefore, this fact proves that plaintiff has right and cause of action to file present suit for protection of its possession. According to agreement, defendant is not entitled to put an end agreement before completion of 7 years from the date of agreement. Thus, agreement entered into by the parties to the suit is in force and under this agreement, plaintiff is entitled to remain in possession. Similarly, defendant has also right to get possession of the suit property by adopting due process of law, and this right of the defendant will not be deprived even after injunction is granted in favour of the plaintiff. So called notices issued by the defendant to the plaintiff are not statutory notices according to terms and conditions of the agreement, and the same are premature, and therefore, they are not valid. ... ... ... It is true that defendant has right to get possession of the suit property, but for that, it requires to adopt due process of law. Defendant has remedy to file a suit against the plaintiff to get proper and adequate reliefs against the plaintiff in respect of the suit property and defendant has not shown any where that it has initiated legal proceeding against the plaintiff for the same.
[8] ... ... ... Against this fact, if injunction is passed against the defendant as prayed for, no irreparable injury will cause to the defendant because defendant's right to initiate legal proceeding against the plaintiff to get possession of the suit property will be intact even after injunction is granted in favour of the plaintiff."
After the passing of the aforesaid order dated 13th May, 2011, CWC invoked the provisions of section 4 of the PPE Act pursuant to which, the estate officer vide notice dated 23rd June, 2011 called upon the petitioners to show cause as to why an order of eviction and damages for unauthorised occupation and interest on it should not be made against them. In response to the said notice, the petitioners filed their replies inviting the attention of the estate officer to the interim injunction granted by the civil court contending that in the light of the said order, their occupation of the suit premises was not unauthorised.
19. The estate officer after hearing the petitioners, observed that in view of the decision of the Supreme Court in the case of B. Sharma Rao H. Ganeshmal and another vs. Head Quarters Asst. and Others, (1998) 9 SCC 577, in the matter of eviction of unauthorised occupants and damages etc., the jurisdiction of the civil court to decide such question is barred and vests exclusively in the estate officer and held that he had the jurisdiction to decide the question of eviction of unauthorised occupation of the petitioners during the pendency of the civil suit filed by the petitioners. The estate officer further held that the civil court had restrained the CWC from taking possession of the suit property forcefully without following process of law and that the order passed under the PPE Act for eviction of unauthorised occupant is definitely, a due process of law as prescribed under the said Act and as such, the interim injunction order does not preclude the estate officer from passing appropriate orders for eviction of unauthorised occupants under the PPE Act. In the case of Kataria Automobiles Ltd., the estate officer further observed that the CWC had issued notices under clause (1) of the memorandum of agreement for vacating the premises after expiry of six months' notice period, that is, on or before 7th March, 2011 making it explicitly clear that the six month notice period under clause (1) of the agreement would be expiring on 7th March, 2011 and that the opposite party was required to vacate the godown on or before 7th March, 2011. That in view of the six months' notice issued on 8th September, 2010 followed by notices dated 14th February, 2011, 28th February, 2011 and 14th June, 2011, it was abundantly clear that the agreement dated 1st July, 2005 had been legally and validly terminated by the CWC. In the case of M/s Navjivan Motors Pvt. Ltd., the estate officer observed that for vacation of the premises after expiry of the agreement, that is, 31st January, 2011, notice dated 8th September, 2010 was issued by CWC, which was acknowledged by M/s Navjivan Motors Pvt. Ltd. The said notice was followed by notice/communication/reminder dated 14th December, 2010, 15th January, 2011, 31st January, 2011 and 7th February, 2011 etc. making it explicitly clear that the under clause (1), the agreement would be expiring on 31st January, 2011 and that the petitioner is required to vacate the godown on or before 31st January, 2011. The estate officer further observed that the records showed that the Government of Gujarat has issued letter dated 20th May, 2010 to CWC specifying that the premise and object for which the land in question was allocated to CWC was for construction of godown for the purpose of storage of food grains etc. and that the notice dated 14th February, 2011 was issued by the CWC to the petitioner for immediately vacating the subject premises and hand over peaceful possession of the premises on the ground that the space is required for the storage of food grains for distribution under PDS scheme of Government of India and other notified commodities. In view of the requirement of storage space for the purpose of storage of food grains and more particularly storage under PDS, the estate officer found that the eviction of the public premises would sub-serve the public purpose and hence the plea of the petitioners that the premises are being vacated for commercial consideration was devoid of merit. The estate officer held that in the light of the notices issued by the Central Warehousing Corporation, the agreement dated 1st July, 2005 had been legally and validly terminated and as such, the occupation of the petitioners of the public premises becomes unauthorised with effect from 8th March, 2011 and 1st February, 2011 respectively.
20. The appellate officer, in the impugned orders, has referred to the provisions of the Warehousing Corporations Act, 1962 as well as the general terms and conditions and has observed that under section 11(b) of the Warehousing Corporations Act read with the general terms and conditions (GTC) of storage, the main function of CWC is to run warehouses for the storage of agricultural produce and notified commodities. The present case relates to notified commodity mentioned as Rs. No.85 of Annexure I attached to General Terms and Conditions of storage. Hence, as per provisions of section 11(b), CWC may accept motor cars for storage in case offered by individuals. CWC may also reserve storage space in order to ascertain the availability of storage space to depositors in terms of packages or area for certain period as provided in clause 15 of the GTC. After considering the provisions of clause 11(b), 15, 27, 28, 49 and 58 of the GTC, the appellate officer came to the conclusion that the present case falls under reservation of storage space as provided under clause 15 of the GTC which can be curtailed or cancelled by giving notice under clause 28 of the GTC. According to the appellate officer, the petitioner was issued notice dated 8th September, 2010 to vacate the premises on or before 7th March, 2011 which was followed by subsequent reminders and that sufficient time was given to the petitioner for alternative arrangement. In respect of Regular Civil Suit No.85/2011 and Regular Civil Suit No.38 of 2001 filed by the petitioners respectively, and the interim relief granted therein, the appellate officer observed that once proceedings under the relevant law is initiated, the order passed by civil court does not remain in force and becomes infructuous. The appellate office was further of the view that apart from the aforesaid, even otherwise, when the transfer of the premises itself was against the provisions of law, rules and regulations, the terms and conditions have no force in law. The appellate officer found that the estate officer had followed the principles of natural justice and given full opportunity to the petitioners; he had formulated points for decision and had passed a reasoned order point wise. The appellate officer in the peculiar facts of the present case, considered the provisions of the Warehousing Corporation Act and observed that having gone through the provisions, in fact power to 'create infrastructure and arrange facility' are given for storage of notified commodities and not to run showroom and workshop which is completely a commercial activity of individual. Similarly the term 'services' mentioned in the rules is related to the warehousing services and not related to service station of notified commodity by establishing workshop. He further found that neither had the Board of Directors passed any resolution nor had the Central Government granted any permission to the local office to change the use of godown and to permit individuals to do business and to run workshops in the godown of CWC. According to the appellate officer, the action on the part of the local office was completely without authority which was against the interest of public at large and affected the supply of food to families covered under the BPL under the Government scheme. It was further observed that under the provisions of reservation made in the General Terms and Conditions of Storage read under section 11(b) of the Warehousing Corporations Act, the warehouse/godown/storage space which is reserved for individual remains in full control of CWC, and that the persons/institutions for whose benefit space is reserved have only the right to deposit goods/notified commodities in reserved place. He is only depositor of goods and cannot be put in exclusive possession and control of premises. Similarly, warehouse/godown/storage space can only be used for storage of goods and cannot be used for business purpose to run showroom or workshop of any notified commodity. However, the petitioners knowing fully well requested for space for establishing Maruti showroom and service station/Hyundai showroom and service station, respectively, and under the pretext of storage space the exclusive possession of the premises was handed over to the petitioners whereby the petitioners have started doing activities other than the activity of storage for which CWC is not authorised under the law, rules and regulations. The appellate officer after perusing the record was also of the opinion that the inaction on the part of the CWC clearly shows that the CWC was not ready to get possession of the public premises which was allotted without authority. In the light of the aforesaid observations, the appellate officer observed that the estate officer had rightly formed the opinion that the petitioners were in unauthorised occupation of the public premises, even if it were to be believed that the premises were transferred by way of grant to the petitioners by the CWC.
21. From the findings recorded by the authorities below as well as from the rival submissions advanced by the parties, evidently, the main ground for challenging the impugned orders passed by the authorities below as well as the very initiation of the proceedings under section 4 of the PPE Act, is that the civil court having passed an order of temporary injunction by observing that the notices dated 8th September, 2010 and 14th February, 2011 are premature, it was not permissible for the authorities to ignore the said order and pass an order contrary thereto. In this regard, it may be noted that the case of the petitioners in Special Civil Application No.1687/2012 was that all of a sudden, vide notice dated 14th February, 2011, the petitioner was called upon to vacate the suit premises on or before 7th March, 2011 and the case of the petitioner in Special Civil Application No.1808/2012 was that all of a sudden, vide notice dated 15th January, 2011, the said petitioner had been called upon to vacate the subject premises on or before 31st January, 2011. Neither of the petitioners have made any reference to the earlier notice dated 8th September, 2010 calling upon the petitioners to vacate the suit premises within a period of six months in case of the petitioner of Special Civil Application No.1687/2012 and by 31st January, 2011, that is, the date of expiry of the period of reservation in the case of the petitioner in Special Civil Application No.1808/2012. The said fact was brought to the notice of the trial court through the written statement submitted by the defendant CWC. Thus, the said notices dated 8th September, 2010 were never subject matter of challenge before the civil court. The civil court in the interim injunction order, observed that both the notices dated 8th September, 2010 as well as 14th February, 2011 were premature and that no action could have been taken before the expiry of a period of seven years from the date of memorandum of agreement.
22. The question that arises for consideration is whether in the light of the interim injunction order passed by the trial court, it was permissible for the estate officer to initiate proceedings under section 4 of the PPE Act and to take a view contrary to the view taken by the trial court.
23. On behalf of the petitioners, reliance had been placed upon the decision of the Supreme Court in the case of State of Punjab vs. Gurdev Singh (supra) as well as in the case of Krishnadevi Malchand Kamathia vs. Bombay Environmental Action Group (supra) for the purpose of contending that it is a settled legal proposition that even if an order is void, it requires to be so declared by the competent forum and it is not permissible for any person to ignore the same merely because in his opinion, the order is void. Whether any order is valid or void, cannot be determined by the party. For setting aside such an order, even if void, the party has to approach the appropriate forum. In this regard it may be apposite to refer to the decision of the Supreme Court in the case of Balwant N. Viswamitra and other vs. Yadav Sadashiv Mule (Dead) through Lrs, and others, (2004) 8 SCC 706, wherein it has been held that the distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non-est and void ab initio. The defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or to make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. In Sarup Singh and another vs. Union of India and another, (2011) 11 SCC 198, the Supreme Court has held that if decree is found to be a nullity, the same can be challenged and interfered with at any subsequent stage say, at the execution stage or even in a collateral proceeding. This is in view of the fact that if a particular court lacks inherent jurisdiction in passing a decree or making an order, a decree or an order passed by such court would be without jurisdiction and the same is non-est and void ab initio. The aforesaid position is well settled and not open for any dispute as the defect of jurisdiction strikes at the very root and authority of the court to pass a decree which cannot be cured by consent or waiver of the parties.
24. In the light of the above referred decisions of the Supreme Court, it can be culled out that whether an order is valid or void cannot be determined by the parties. However, in case of a void and non-est order, the same can be challenged at any stage even in execution or collateral proceedings.
25. The question that then arises for consideration is whether the civil court lacked the jurisdiction to entertain the suits in question and to pass the interim injunction orders. On behalf of the respondents, reliance had been placed upon the provisions of section 10 and section 15 of the PPE Act for contending that the civil court had no jurisdiction to entertain the suit and that in any case once the proceedings under the PPE Act are initiated the civil court would lose jurisdiction to proceed with the suit. Reference may, therefore, be made to the provisions of section 10 and 15 of the PPE Act.
26. Section 10 of the PPE Act makes provision for "Finality of orders"
and lays down that save as otherwise expressly provided in the Act, every order made by an estate officer or appellate officer under the Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
27. On a plain reading of section 10 of the Act, it is apparent that the same is in two parts. The first part provides for the finality of the orders passed by the estate officer or appellate officer and lays down that every order passed by the estate officer or appellate officer shall be final and shall not be called in question in any original suit, application or execution proceeding. The second part postulates that no injunction shall be granted by any court or other authority in respect of (i) any action taken or (ii) any action to be taken in pursuance of any power conferred by or under the Act. Thus, under the second part of section 10, there is a bar against the civil court passing any injunction which will result into granting of an injunction against taking any action in pursuance of any power conferred by or under the Act.
28. At this juncture, it may be germane to refer to the provisions of section 2(g) of the PPE Act which defines 'unauthorised occupation', in relation to any public premises, to mean 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.
29. Section 4 of the PPE Act makes provision for "Issue of notice to show cause against order of eviction". Under section 5 of the PPE Act which makes provision for "Eviction of unauthorised occupants", the estate officer is empowered to make an order of eviction if after considering the cause, if any, shown by any person in pursuance of a notice under section 4, he is satisfied that the public premises are in unauthorised occupation. Thus, under section 5 of the Act, it is the estate officer who has to be satisfied that the public premises are in unauthorised occupation. The contention raised on behalf of the petitioners that unless the occupation is unauthorised, the estate officer cannot initiate proceedings under section 4 is, therefore, misconceived and flies in the face of the provisions of section 5 of the Act. Once the notice of the estate officer is brought to the fact that any person is in unauthorised occupation, the authorised officer after issuance of notice under section 4 and considering the cause shown by the party has to first form an opinion as to whether the occupation by such person is authorised or unauthorised. It is only when he forms the opinion that such person is in unauthorised occupation that the estate officer would make an order directing that the public premises shall be vacated.
30. Section 9 of the Code of Civil Procedure, 1908 says that subject to the provisions contained therein, the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 15 of the PPE Act postulates that no court shall have jurisdiction inter alia to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises. Thus, section 15 of the PPE Act bars the jurisdiction of the civil court to entertain the suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises.
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.
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.
34. If the contention of the petitioners that once the trial court has observed that the notices dated 8th September, 2010 and 14th February, 2011 are premature the same could not have been acted upon by the respondents for the purpose of initiating proceedings under the PPE Act were to be accepted, the order of the trial court would fly in the face of the provisions of section 10 as well as section 15 of the PPE Act. The injunction would then have to be construed as an injunction against taking any action under the provisions of the Act and the same would fall within the ambit of the second part of section 10 of the Act. The order of the trial court would then amount to indirectly exercising jurisdiction in respect of proceedings for eviction of the petitioners who would have become unauthorised occupants on 7th March, 2011 and 31st January, 2011 respectively. In other words, if the observations made by the trial court that the notices in question are premature have to be read as precluding the respondents from taking action under the provisions of the PPE Act, then the said observations would amount to entrenching upon the jurisdiction of the estate officer to decide whether or not on the basis of the said notices, the occupation of the petitioners is unauthorised. In that case, the suits instituted by the petitioners would fall within the exception carved out under section 9 of the Code and as such, the trial court would have no jurisdiction to entertain the same and grant any relief thereon. Any order passed in the said proceedings would, therefore, be non-est and void and could be challenged in collateral proceedings.
35. However, in the light of the liberty granted by the trial court to the respondents to take action for dispossessing the petitioners in accordance with law, the order passed by the trial court can be reconciled with the provisions of section 10 of the PPE Act as discussed hereinabove. The trial court has thus given a lee way to the respondents for taking action in accordance with law. Accordingly, the respondents have resorted to the provisions of the PPE Act and the petitioners have participated in the said proceedings which resulted into passing of the orders of eviction by the estate officer. The appellate officer after appreciating the evidence on record has concurred with the findings recorded by the estate officer and has further on the basis of the provisions of the Warehousing Corporations Act come to the conclusion that the very allotment of the subject premises was without authority of law and as such, unauthorised.
36. In the opinion of this court, the scope of the proceedings before the trial court as well as the estate officer is different. Before the trial court, the petitioners had sought protection from forcible dispossession of the subject premises without taking action in accordance with law whereas proceedings before the estate officer were proceedings under the PPE Act for unauthorised occupation of the subject premises. It is true that the cause of action for instituting the suit were notices dated 14th February, 2011 calling upon the petitioner to vacate the subject premises on or before 7th March, 2011 and 31st January, 2011, respectively. However, the relief claimed is for a permanent injunction restraining the defendants from forcibly dispossessing the petitioners and from taking over possession except in accordance with law. The trial court while granting interim injunction has observed that the apprehension of the petitioners that they may be forcibly evicted appears to be justified and it is in these circumstances that the trial court has granted temporary injunction pending the suit, while reserving liberty to the respondents to take possession in accordance with law. Possession in accordance with law, as observed hereinabove in respect of public premises would be under the provisions of PPE Act, hence, it cannot be said that the initiation of proceedings under the PPE Act are in conflict with or in violation of the order of the trial court.
37. In the light of the aforesaid discussion, this court is of the opinion that the view taken by the appellate officer confirming the order of the estate officer is a plausible view in the facts and circumstances of the case. On facts, both the estate officer and the appellate officer have assigned sufficient and cogent reasons in support of their orders. From the findings recorded by the authorities below, it is not possible to state that there is any substantial failure of justice or that the orders contain any error apparent on the face of the record warranting interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
38. That takes us to the second part of the order, namely, the order imposing damages. Mrs. Sangeeta Pahwa, learned advocate for the petitioner has assailed the impugned order whereby damages have been assessed contending that no notice as contemplated under section 7 of the PPE Act has ever been issued to the petitioners and as such, any order assessing damages under the said provision is bad in law. Inviting attention to the notice dated 23rd June, 2011, it was pointed out that the same is essentially a notice under sub-section (1) of section 4 of the PPE Act and that the same does not contain even a reference to section 7 of the PPE Act. Inviting attention to the provisions of rule 8 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 (hereinafter referred to as 'the Rules') it was pointed out that the assessment of damages for unauthorised use and occupation of any public premises is required to be made in terms of the said rule. Referring to the order passed by the estate officer, it was submitted that the estate officer has accepted whatever was suggested by the CWC and has not given any specific reasons for levying damages at three times the storage charges, supervision charges and service tax. It was submitted that under the circumstances, the impugned order does not meet with the requirements of rule 8 of the Rules. Reference was also made to Form 'F' which is the format of notice under sub-section (3) of section 7 of the PPE Act to submit that there is a specific format provided for issuance of notice under sub-section (3) of section 7 of the PPE Act and that in the facts of the present case, no such notice has been issued. It was urged that while assessing the damages, the estate officer has to take into consideration the rent that would have been realised if the premises would have been let to a private person whereas in the present case the petitioner has already paid the rent and, therefore, the damages could be only the dues of rent, if any, which would have been realised by the respondent while letting the premises to a private person during the said period. However, contrary to the rules, in the present case, the damages have been calculated on the basis of the income that the petitioner may have earned whereas, the damages on the basis of which loss has incurred to the third respondent is because of the occupation of the premises by the petitioner. It was further submitted that the appellate officer has also not independently applied his mind on the question of damages and has merely confirmed the order passed by the estate officer. Under the circumstances, the order assessing damages had been made without following due procedure in accordance with law and as such, is in breach of the principles of natural justice and requires to be set aside. In support of her submissions, the learned counsel placed reliance upon the decision of this High Court in the case of Fulaji Okhaji Thakore v. Union of India and another, 1985 GLH 254 wherein the court had held that a mere look at sub-section (3) of section 7 shows that no order for damages under sub-section (2) could have been passed without issuing notice to the petitioner calling upon him to show cause why such order should not have been passed against him. In the facts of the said case, since the notice issued against the petitioner therein was a notice calling upon him to show cause as to why he should not be evicted from the land in question as he was in unauthorised occupation, the court held that the order fixing damages must necessarily fall through on this ground alone. The court has further observed that rule 8 was totally observed in breach by the competent authority while assessing in an ad hoc manner the damages payable by the petitioner. Reliance was also placed upon the decision of this High Court in the case of Bhavnagar Municipal Corporation vs. Babubhai P. Patel, 2001 (2) GLR 1500, wherein the court had set aside the order assessing damages under section 7 of the Act on the ground that no notice had been issued under the said section and the quantification of arrears of the lease amount had not been affected by following the due procedure under section 7 of the Act.
39. Mr. Sudhir Nanavati, learned senior advocate, appearing on behalf of the petitioner in Special Civil Application No.1808/2012 reiterated the above referred submissions made by Mrs. Pahwa. According to the learned counsel when the statute provides for a particular mode for exercise of powers, the same is required to be strictly followed. It was submitted that in the facts of the present case, sub-section (3) of section 7 read with rule 8 of the Rules and Form 'F' lay down a specific procedure and manner in which damages are required to be assessed. Under the circumstances, if there is any departure from the mandatory procedure laid down under the PPE Act and the Rules, the entire procedure stands vitiated. Referring to the provisions of section 7 of the PPE Act, it was submitted that the same provides for assessment of damages in respect of unauthorised occupation of any public premises. Under the circumstances, unless a person is held to be in unauthorised occupation, the question of assessing damages would not arise. It was submitted that sub-section (2) further provides that such damages have to be assessed having regard to such principles as may be prescribed and that the damages have to be assessed on account of the use and occupation of such premises.
Referring to sub-section (3) of section 7, it was submitted that the same postulates that no order under sub-section (1) or sub-section (2) shall be made against any person until after issuance of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made. It was contended that the language of the provision is mandatory in nature inasmuch as the same mandates that no order shall be made against any person unless a notice in writing has been issued. Whereas in the instant case factually no notice under section 7(3) of the PPE Act has been issued and as such, there is no question of resorting to provisions of rule 8 of the Rules inasmuch as assessment of damages should be preceded by a notice under sub-section (3) of section 7. Referring to the order of the estate officer, it was submitted that in the present case, whatever was stated by the respondent CWC has been accepted by the estate officer and accordingly, assessment of damages at three times the amount suggested by the CWC has been accepted. It was pointed out that while assessing the damages, the purpose and the period for which the public premises were under unauthorised occupation has not been taken into consideration. Referring to clause (c) of rule 8, it was submitted that while assessing damages, the estate officer is required to take into consideration the rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation to a private person whereas, in the facts of the present case, no such exercise has been made to find out the existing rate of rent nor has any valuation report etc. been taken into consideration. It was, accordingly, urged that there is total non-application of mind on the question of assessment of damages by the estate officer and as such, the order insofar as the same assesses damages stands vitiated on account of non-compliance with the provisions of the statute.
40. Mr. Mihir Joshi, learned senior, advocate appearing on behalf of the respondent CWC in Special Civil Application No.1687/2012 invited attention to the notice dated 23rd June, 2011 to submit that the petitioners had been put to notice about the damages. Inviting attention to the submissions made by the CWC before the estate officer, it was pointed out that a detailed breakup of the damages had been set out therein and the estimate of restoration had also been separately submitted. Under the circumstances, the entire breakup and the manner in which the damages have been assessed by the CWC have been furnished to the petitioner and it is not as if the petitioner was caught unaware. Referring to the affidavit-in-reply filed before the estate officer and more particularly to paragraph 18 thereof, it was submitted that the petitioners had adequate opportunity to reply on the question of assessment of damages and as such, it cannot be said that there is any breach of the principles of natural justice so as to warrant interference in exercise of powers under Article 227 of the Constitution.
41. Mr. Harin Raval, learned senior advocate appearing on behalf of the third respondent in Special Civil Application No.1808 0f 2012, invited attention to the notice dated 23rd June, 2011 to submit that though the same is titled as a notice under sub-section (1) and clause (b)(ii) of sub-section (2) of section 4 of the PPE Act, the petitioner has been specifically called upon to show cause as to why an order of eviction and damage for unauthorised occupation and interest on it should not be made. According to the learned counsel, merely non-mentioning of a provision of law would not vitiate the notice inasmuch as the said notice specifically states that it is also a notice for assessment of damages for unauthorised occupation. It was submitted that during the proceedings before the estate officer, a copy of the claim statement made by the respondent CWC had been furnished to the petitioner wherein the entire breakup of the damages, compensation towards restoration and interest etc. have been specifically set out. Under the circumstances, the petitioners had due notice of the manner in which the assessment had been made and as such, it cannot be said that the petitioners were not granted any opportunity of hearing in respect of the assessment of damages. It was urged that non-mentioning of a statutory provision would not affect the validity of the proceeding and that the test is whether the petitioner was put to notice. It was emphatically argued that the petitioner is required to show as to how he has suffered any prejudice on account of non-mentioning of section 7(3) in the notice. It was submitted that apart from the fact that the notice itself mentions that it was a notice both in respect of eviction as well as damages for unauthorised occupation, during the course of proceedings before the estate officer, the petitioners were well aware of the manner in which the damages have been assessed etc. Under the circumstances, it cannot be said that the petitioners have suffered any prejudice on account of non-issuance of a separate notice under sub-section (3) of section 7 of the PPE Act. It was submitted that the court would not go into the sufficiency of the evidence and that it is for the petitioner to show that some prejudice had been caused to it on account of non-mentioning of section 7(3) in the notice issued by the respondent estate officer. Reliance was placed upon an unreported decision of this court in the case of Bhakti Auto (Dhruv Cars Pvt. Ltd) v. Central Warehousing Corporation rendered on 23rd February, 2012 in Special Civil Application No.2269 of 2012 with Special Civil Application No.2270 of 2012 wherein similar contentions had been raised by the petitioners therein but, the petitions came to be dismissed. The attention of the court was also invited to the judgment and order dated 27th February, 2012 passed by a Division Bench of this court in Letters Patent Appeals No.267 of 2012 and 501 of 2012 whereby the appeals preferred against the said order, came to be dismissed.
42. In the backdrop of the facts and contentions noted hereinabove, it may be germane to refer to the provisions of section 7 of the PPE Act which makes provision for "Power to require payment of rent or damages in respect of public premises". Sub-section (2) of section 7 provides that where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order. Thus, sub-section (2) of section 7 envisages that firstly a person should be in unauthorised occupation; secondly, that the estate officer should assess damages having regard to the principles as may be prescribed and such assessment of damages should be on account of use and occupation of such premises. Rule 8 of the Rules prescribe for the manner in which damages are required to be assessed. The same lays down that in assessing damages for unauthorised use and occupation of any public premises, the estate officer shall take into consideration the following matters namely
(a) the purpose and the period for which the public premises were in unauthorised occupation; (b) the nature, size and standard of the accommodation available in such premises; (c) the rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation to a private person; (d) any damage done to the premises during the period of unauthorised occupation; and (e) any other matter relevant for the purpose of assessing the damages. Sub-section (3) of section 7 provides that no order shall be made under sub-section (1) or sub-section (2) against any person until after the issue of notice in writing to the person calling upon him as to show cause within such time as may be specified in the notice, why such order should not be made and until his objections, if any and any evidence he may produce in support of the same, have been considered by the estate officer.
43. The order passed by the estate officer as confirmed by the appellate officer has to be examined in the light of the aforesaid statutory provisions.
44. A perusal of the order passed by the estate officer shows that on the question of damages, the estate officer has merely observed that the petitioner continued to remain in unauthorised occupation from 8th March, 2011 and 31st January, 2011 till the date of the said order. Therefore, CWC was entitled to the damages as claimed at the rate of three times of the storage and supervision charges as per CWC tariff revised with effect from 1st May, 2011. The estate officer has further observed that the petitioner had remained in unauthorised occupation depriving the CWC of making use of the public premises as per the requirement and, therefore, CWC was required to duly compensate by awarding damages. It was further observed that during the unauthorised occupation of the premises, the petitioners were utilising the premises for commercial purpose, that is, for running of showroom, sales repairing etc. and were earning huge profits out of these operations. The estate officer, therefore, deemed it proper to award damages which are quantified at three times or triple the rates of storage charges fixed as per the general tariff of CWC for the period from 8th March, 2011 and 31st January, 2011, respectively, till the vacation and handing over the premises to the applicant Corporation. Insofar as the restoration charges are concerned, the estate officer has granted the amount as stated by the CWC. Interest at the rate of 18% per annum has been granted as that was the agreed rate under the memorandum of agreement.
45. Insofar as the impugned order made by the appellate officer is concerned, on the question of damages, he has merely observed that so far as the payment of amount ordered by the estate officer is concerned, he has gone through the reasoning given by the estate officer under various heads while determining point No.(vi) and does not find any reason to interfere with the same. [Point No.(vi) reads thus: "Whether the Applicant CWC is entitled to the storage charges, damages, litigation expenses etc"].
46. On a plain reading of the order passed by the estate officer, it is apparent that the estate officer has not applied his mind to the factors enumerated in rule 8 of the Rules for assessment of damages and has accepted what has been claimed by the CWC in its claim statement in its entirety. A perusal of the notice dated 23rd June, 2011 shows that there is no reference to sub-section (3) of section 7 in the entire notice. However, the notice has also called upon the petitioners as to why damages for unauthorised occupation and interest on them should not be made. Thus, the said notice can be also said to be a notice under sub-section (3) of section 7 of the PPE Act. However, Form 'F' which is the prescribed form for issuance of notice under sub-section (3) of section 7 of the PPE Act shows that while issuing a notice under sub-section (3) of section 7, while calling upon the unauthorised occupant to show cause as to why the order requiring him to pay damages should not be made, various details as regards the period of the unauthorised occupation, rate at which assessed, amount assessed, amount paid and balance in arrears etc. are required to be reflected. Under the circumstances, even if it is assumed that in view of the reference made in the notice dated 23rd June, 2011 calling upon the petitioner to show cause as to why order of damages for unauthorised occupation should not be made, it is apparent that the requirements as prescribed in Form 'F' of the rules have not been met with. Under the circumstances, the notice dated 23rd June, 2011 evidently does not meet with the requirements of sub-section (3) of section 7 of the PPE Act. Moreover, on a plain reading of the order passed by the estate officer, it is apparent that the estate officer has not applied his mind to the factors enumerated under rule 8 of the Rules and merely accepted what have been claimed by the CWC in its claim statement. It is settled legal position that when a statute prescribes a mode for doing a particular act, it is required to be done in the said manner. Besides, the statute also imposes an obligation upon the estate officer to assess damages in the manner prescribed. The impugned order apparently does not meet with the requirements of rule 8 of the Rules and as such, it is not possible to state that the order of damages made by the estate officer satisfies the requirements of section 7 of the PPE Act read with rule 8 of the Rules and as such, the same cannot be sustained.
47. As regards the judgment and order dated 23rd February, 2012 made in Special Civil Application 2269 of 2012 and cognate matter, on which reliance has been placed on behalf of the respondents, in the facts of the said case the court held thus:
"(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.
Thus, it is apparent that the said petitions came to be dismissed on the ground that the petitioners had disentitled themselves from the grant of any relief for the reasons stated in the concluding part of the aforesaid paragraph. The said decision would not be applicable to the facts of the present case as the validity of the notices has not been examined in the light of the statutory provisions, but the petitions have been dismissed on other grounds.
48. For the foregoing reasons, the petitions partly succeed. The impugned orders passed by the appellate officer to the extent the same uphold the orders passed by the estate officer holding that the petitioners are liable to be evicted from the suit premises as being unauthorised occupants are hereby sustained. However, insofar as the impugned orders of the appellate officer upholding the assessment of damages made by the estate officer are concerned, the same are hereby quashed and set aside. It would be open for the estate officer to issue a fresh notice under section 7(3) of the PPE Act and pass a fresh order under sub-section (2) of section 7 after following due procedure in accordance with law. Rule is made absolute accordingly to the aforesaid extent in each of the petitions.
49. At this stage, Mrs. Sangeeta Pahwa, learned counsel for the petitioner in Special Civil Application No.1687/2012 has requested that the interim relief granted vide order dated 17th February, 2012 be continued for a further period of four weeks from today so as to enable the petitioner to approach the higher forum. Mr. Sanjay Dave, learned advocate for the petitioner in Special Civil Application No.1808/2012 submits that though no stay had been granted in this petition, however, the petitioner is still in possession of the suit property and as such, this order be stayed for a further period of four weeks so as to enable the petitioner to avail of the remedy before the higher forum. The said requests are opposed by Mr. D.K. Puj, learned advocate for the third respondent - CWC.
50. In the facts and circumstances of the case and more particularly having regard to the findings recorded by the appellate officer, the request is declined.
( Harsha Devani, J. ) hki