Gujarat High Court
M R Makwana vs State Of Gujarat on 1 May, 2023
C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17396 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 17426 of 2013
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2014
In R/SPECIAL CIVIL APPLICATION NO. 17426 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 17397 of 2013
To
R/SPECIAL CIVIL APPLICATION NO. 17425 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 17427 of 2013
To
R/SPECIAL CIVIL APPLICATION NO. 17440 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M R MAKWANA & ORS.
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR JAYESH A KOTECHA, ADVOCATE for the Petitioners
MR RT SONGARA, ADVOCATE for the Petitioners
MR CHINTAN DAVE, AGP for the Respondents - State
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/05/2023
ORAL JUDGMENT
1. The present group of petitions is filed by the petitioners challenging the impugned identical but separate judgments and orders passed by the trial Court i.e. City Civil Court, Ahmedabad in respective Regular Civil Appeals, whereby the trial Court has rejected all the appeals of the petitioners. All the said appeals were arising from the judgment and order of eviction passed by the competent Authority and City Deputy Collector (East) under Section 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupant) Act, 1972.
2. The issue involved in this group of petitions is the illegal occupation of the Government quarters by the retired employees and/or by the legal heirs of such employees since long, without paying rent.
3. Since the issue is identical, all the petitions are heard and decided together today by this Court. Since this is Page 2 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 a bunch of petitions, the appeal numbers of the trial Court and the quarter number in which the petitioners are residing, both are separate, but the facts are identical in all the petitions.
4. It is noted that at the request of learned advocate for the petitioners, these matters were not proceeded finally and therefore, adjourned from time to time.
5. On last occasion i.e. on 29.04.2023 also, learned advocate Mr.Jayesh A. Kotecha for the petitioners has argued the matter for some time and seek adjournment. On that day, the following order is passed by this Court :
"1. The Court has, vide earlier orders dated 22.06.2022, 27.04.2023 and 28.04.2023, specifically asked the learned advocates for the petitioners to proceed with the matters and the Court has prima facie not shown his inclination to grant the relief, as prayed for in these petitions, learned advocate Mr.Jayesh A. Kotecha for the petitioners has, on instructions from some of the petitioners who are present before this Court today, who have also permitted to address the Court, submitted that since there are many petitioners in this group of petitions, wherein the issue pertains to the occupation of the government quarters after retirement by themselves or by the legal heirs of some of the Page 3 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 petitioners, as a last chance, some time may be given for taking necessary instructions in the matters.
2. Learned AGP Mr.Chintan Dave for the State Authorities has produced on record the details about the outstanding amount towards rental dues qua each petitioner, which is about Rs.3 lakhs to Rs.10 lakhs.
3. Considering the request made by learned advocate Mr.Kotecha for the petitioners, the matters are adjourned to 01.05.2023, for final disposal.
4. Registry to list all these matters at the top of the board.
5. It is expected that the learned advocate for the petitioners will inform the petitioners appropriately and take necessary instructions about :- (i) time limit for deposit of an amount qua arrears of rent and (ii) time period for vacating the premises."
6. Today, learned advocate Mr.Jayesh A. Kotecha for the petitioners has argued the matter for some time in the first session at 11:00 a.m. and thereafter, he has requested this Court to adjourn the matters in second session at 02:30 p.m., so as to enable him to take necessary instructions from the petitioners as to :- (i) by what time, the petitioners will pay the arrears of rent to the Government and (ii) by what time, the petitioners will vacate the Government quarters, since they are in illegal occupation since long.
7. Considering the same, as a last chance to the Page 4 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 petitioners and for taking appropriate instructions in the matters, all the petitions are kept in second session today for appropriate orders. As such, he has made several submissions on merits today.
8. In second session at 02:30 p.m., when the matters are called out, learned advocate Mr.Jayesh A. Kotecha for the petitioners is not present.
9. Learned advocate Mr.Siddhant Parashar for learned advocate Mr.Kotecha is present in second session and submits that since the petitioners are not responded to Mr.Kotecha, learned advocate, he is not willing to pursue the matters further in capacity of the lawyer of the petitioners.
10. Such conduct of the advocate as well as of the petitioners is highly deprecated. It is nothing but abuse of process of all. Now, in view of this, there is no reason to further prolong the matters, since the learned advocate Mr.Kotecha for the petitioners in first session has made various detailed submissions on merits.
11. Rule. Learned AGP Mr.Chintan Dave waives service of notice of rule for and on behalf of the respondents
- State Authorities.
Page 5 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 12.1 Learned advocate Mr.Jayesh Kotecha has in first session submitted that the Competent Authority and City Deputy Collector (East), Ahmedabad has not properly appreciated that the respondent is not the owner of the lands upon which the residential quarters have been built up inasmuch as till date the name of the Gujarat House Board is shown in the revenue record as an owner of the said land and considering the same, the respondent does not have any ownership rights over the said quarters.
12.2 He has submitted that the respondent has not issued statutory notice in proper format. He has submitted that the Competent Authority has no power and jurisdiction to undertake the procedure for eviction. He has submitted that the premises in question are not the public premises as defined under the Act since there is no evidence on record that the Government has taken the said premises on lease from the Gujarat Housing Board. He has submitted that the trial Court has not properly appreciated the facts of the case as well as the evidence on record and passed the impugned orders.
12.3 He has submitted that the Government has earlier sold the Government quarters to their employees who are Page 6 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 occupying the same. He has submitted that the Government may be directed to sell the quarters in question to the petitioners since they are having occupations since long on the same scheme.
12.4 He has submitted that some of the petitioners -
allottees have been paying the rent, rather the amount of the rent is being deducted from their pension amount.
12.5 He has relied upon the following decisions in support of his submissions :
(i) Phiray Ram versus National Airport
Authority - 1996 (1) GLH 942
(ii) Wire Metting Stores versus Delhi
Development Auhority - 1969 (3) SCC
415
(iii) Gujarat Housing Board versus
Rameshbhai T. Bhatt - 1989 (2) GLR
975
(iv) New India Assurance Co. Ltd. Versus
Nusli Neville Wadia; KLM Engineering
Co. Pvt, Ltd. - (2008) 3 SCC 279
(v) Competent Officer, Gujarat Housing
Board versus K.B. Parmar - 1992 (1)
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GLR 79.
12.6 He has submitted that these petitions may be
allowed.
13.1 Heard learned Assistant Government Pleader
Mr.Chintan Dave for the respondents - State Authorities at length in second session. He has submitted that some of the properties vest with the Government of Gujarat Housing Board and the S.T. Corporation and therefore, the competent officer has been appointed in accordance with the Notification issued by the Government of Gujarat. He has submitted that this Hon'ble Court has, in a given case, opined that the Housing Board can be said to be a Corporation established under the Act, 1961 and is controlled by the State Government and therefore, the premises belonging to or taken on by or on behalf of the Board can be said to be a public premises, within the meaning of Section 2(f) of the Public Premises Act and thus, it is applicable to the premises in question belonging to the or taken on lease by or on behalf of the Board. He has produced on record the copy of the notification dated 21.11.1984.
13.2 He has further submitted that the proceedings so initiated by the authority has been followed in the prescribed Page 8 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 procedure as enumerated in the Act, whereby the petitioners
- allottees were allotted premises after having obtained undertaking from them in the prescribed form and therefore, the notice for cancellation and determination of allotment order came to be served and thereafter, the petitioners were served with the notice under Section 4 of the Act in the prescribed form and against which the petitioners had tendered reply also.
13.3 He has also submitted that the competent authority had issued notices to the petitioners calling upon them to show-cause as to why the order of eviction should not be made. He has submitted that the authority had, after following prescribed procedure laid down in the Act, passed the orders of eviction.
13.4 He has submitted that the State Government has purchased the colonies / quarters from the Gujarat Housing Board vide Government Resolution dated 17.03.1977 and hence, the State Government is absolute owner of the residential quarters.
13.5 He has also submitted that there is a clear distinction between the person authorized to occupy any public premises and a person in unauthorized occupation Page 9 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 under the several provisions of the Act.
13.6 He has submitted that if come tenements / blocks were transferred or sold under some scheme in the past by the Government at the subsidized rate to the Government employees, cannot be said that for all time to come the Government should go on framing such schemes.
13.7 In support of his submissions, he has relied upon the following decisions :
(i) S.D. Bandi versus Divisional Traffic Officer, KSRTC - Civil Appeal No.4064 of 2004 (SC)
(ii) Urvakunj Nicotine Ltd. Versus Union of India - 2012(3) GKH 301
(iii) Mangrol Taluka Panchayat versus Ranabhai @ Gangubhai Gigabhai -
2008(1) GLH 791
(iv) N.K. Parmar versus State of Gujarat -
1992 (2) GLR 1508 13.8 He has submitted that the present petitions may be dismissed by directing them to vacate the quarters forthwith.
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14. I have heard learned advocate Mr.Jayesh A. Kotecha for the petitioners in first session and learned AGP Mr.Chintan Dave for the respondents - State Authorities at length. I have perused the impugned judgments and orders passed by the trial Court. I have gone through the material available on record.
15. As noted above, the core issue involved in this group of petitions is the illegal occupation of the Government quarters by the retired employees and/or by the legal heirs of such employees since long, without paying rent.
16. From the record, the following undisputed facts are emerged :
16.1 The petitioners were allotted Government quarters at Sarkari (Government) 'G' Colony, Rakhial, Ahmedabad in the year 2003. At that time, they were in service.
16.2 Now, they have reached the age of superannuation before many years. Even though, they are in possession of the said quarters since long.
16.3 Some of the petitioners have expired. Still, their Page 11 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 legal heirs are occupying the said quarters. Some of the quarters are in possession of the sub-tenant also.
16.4 Many of them are not paying the rent to the Government as per the rules.
16.5 The procedure under Section 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 has been undertaken. The Authorities have issued notices to the petitioners for vacating the quarters, which were challenged by the petitioners before the authorities -
The Competent Authority and City Deputy Collector (East), Ahmedabad. The same are dismissed.
16.6 Against which, the petitioners have preferred separate but identical appeals before the City Civil Court, Ahmedabad, which the trial Court has, after hearing the parties at length, rejected by way of detailed identical but separate judgments.
16.7 It is these judgments, which are challenged by the petitioners in this group of petitions.
17.1 Considering the submissions canvassed by the learned advocates for the respective parties vis-à-vis keeping Page 12 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 in mind the undisputed facts, the following are the questions, which need to be answered for determination of the issue involved in this group of petitions.
(i) Whether the Government is having the ownership of the quarters in question or not ?
(ii) Being the Government employees, whether the petitioners have occupied the quarters in question legally or not ?
(iii) Whether the petitioners are retired from Government service and/or have expired ? If yes, then whether they are still entitled to hold possession of the said Government quarters legally ?
(iv) Whether the petitioners are the illegal occupants by holding possession of the Government quarters still ?
17.2 The answered of the above questions are as under:
17.2.1 With regard to the question of ownership is concerned, it is noted that the State Government has purchased the colonies / quarters from the Gujarat Housing Board vide Government Resolution dated 17.03.1977 and hence, the State Government has become the absolute owner of such quarters. Against it, there is no rebuttal by the petitioners.Page 13 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023
C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 17.2.2 With regard to the possession of the Government quarters is concerned, it is noted that while the petitioners were in Government service, they had applied for the Government quarters and in turn, they were allotted such Government quarters in the year 2003 and so, with certain terms and conditions and since then, they were the legal occupants of the quarters in question at that time.
It is noted that at the time of receiving such Government quarters, none of the petitioners has checked the legality of the such allotment letter or challenged the said terms and conditions stipulated in the allotment letter. Even they have not raised any question as to whether the allotting authority has power to allot such Government quarters or not. Even they have not raised any question as to whether the Government is the owner of such quarters or not. It seems that the said allotment was subject to the terms and conditions as agreed upon by the petitioners. Thus, the petitioners were allotted Government quarters and occupying the public premises legally.
17.2.3.1 With regard to the question that whether the petitioners are now retired from the service or not is concerned, it is the case of the petitioners themselves that Page 14 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 they have reached the age of superannuation and/or some of them have expired. Thus, it is clear that they are now not in Government service at all. There is no dispute about this issue from either side before any forum / Court.
17.2.3.2 With regard to holding possession of the Government quarters after retirement and/or death is concerned, it is noted that after their retirement, the respondent has called upon the petitioners to hand over the vacant and peaceful possession of the Government quarters in question on the ground that the so-called agreement of allotment stands cancelled due to the retirement on superannuation and/or death. Therefore, it is clear that the petitioners are occupying the said Government quarters after their retirement and/or death illegally. At this juncture, Rule 12 of the Gujarat Civil Services (Occupation of Government Residential Accommodation) Rules, 2002 is required to be considered, which is as under :
"12. Occupant of the residential accommodation - The incumbent of a post, for whom a residential accommodation has been made available, shall be considered to be in occupation of the same during the period of his incumbency of the post."
The said Rule 12 is enacted by the Page 15 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023
Government by exercising the powers conferred by the proviso to Article 309 of the Constitution of India, wherein, it is clearly stated that the residential accommodation is available till an individual is holding a particular post in the Government establishment. Hence, as soon as the Government employee is discharged from his post for any reason whatsoever, then he is bound to vacate the residential accommodation provided to him.
17.2.4 With regard to question of illegal occupants is concerned, it is noted that the petitioners were allotted these Government quarters while they were in Government service on curtained terms and conditions. They are retired / have expired since long. They have not vacated the quarters in question inspite of the terms and conditions of the allotment letters. Some of them are even not paying the rent of such quarters. The authorities have issued notices to the petitioners time and again for vacating the quarters and for arrears of rent. Thus, this Court finds that the petitioners are in illegal possession of the said Government quarters since long.
18. From above, it is clear that the quarters are the Government quarters and the Government is its owner. While in service, the petitioners were allotted such quarters. They are retired / have expired. Various notices were served to the petitioners for vacating the quarters. Many of them are not paying Page 16 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 even rent to the Government as on today. Still they are in possession of the said quarters and therefore, after retirement, it can be said that the petitioners are occupying the Government quarters illegally.
19. We cannot shut our eyes about the hard reality that many Government employees, who are at present in the service, are waiting for allotment of the Government quarters.
Learned AGP for the State has placed on record the statement of the employees who seek Government quarter since long which is about 1200 in figures. I know that all the employees, who are in service, cannot be accommodated by vacating the quarters in question, but atleast some of them can be accommodated by the Government.
It is relevant to refer to the decision of the Hon'ble Apex Court in the case of S.D. Bandi versus Divisional Traffic Officer, KSRTC & Ors., recorded on Civil Appeal No.4064 of 2004, dated 05.07.2013. The relevant paras: 1, 2, 5 and 12 are as under :
"1. The instant case relates to the occupation of government accommodation by members of all the three branches of the State, viz., the Legislature, the Executive and the Judiciary beyond the period for which the same were allotted. The houses/quarters difficulty in occupation beyond the accommodating of Page 17 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 period other such government prescribed causes persons waiting for allotment and, therefore, the Government is at a loss on the one hand in not being able to accommodate those persons who are in need and on the other is unable to effectively deal with the persons who continue to occupy unauthorisedly beyond the period prescribed.
2. Despite the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (in short 'the Act'), it is seen that it has not been effective enough in dealing with the eviction inasmuch as the competent Authority, i.e., Estate Officer has to first initiate proceedings and pass orders after hearing the parties and thereafter, one statutory appeal lies to the District Judge under Section 9 of the Act. After disposal of the appeal, people resort to writ proceedings thereby enjoying the scarce government accommodation. There are cases where the occupants are so affluent that they are willing to pay the penal/market rent and continue to occupy government quarters especially in metropolitan cities where such government quarters are a luxury situated in several acres of land within the heart of the city.
5. Pursuant to the said order, this Court, taking note of the fact that in government quarters, unauthorisedly, people are continuing for years together to the detriment of the persons who are entitled to occupy the same and also that the same is the position in Page 18 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 most of the State capitals and Head quarters of the Union Territories, issued notices to the Union of India, all the States and the Union Territories with a direction to furnish the list of such unauthorized occupants of government quarters in the State capitals and Head quarters of Union Territories belonging to all the three limbs of the State, viz., the Legislature, the Executive and the Judiciary. This Court further directed to furnish all the details including names of such persons, details of quarters, period of unauthorized occupancy, steps taken for vacation and its result etc., and also that in case no steps have been taken, reasons for such inaction.
12. Before considering the response of the Union of India, States and the Union Territories as to the suggestions of learned amicus curiae, let us consider the relevant provisions of the Act applicable to the persons in service. The Act was enacted to provide for eviction of unauthorized occupants from public premises. Section 2(e) of the Act defines `public premises' as under:
"e) "public premises" means-
(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the Page 19 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendments Act, 1980, under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of,- (i) any company as defined in section 3 of the Companies Act, 1956, in which not less than fifty-one per cent, of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act ) of the first-mentioned company."
Section 2(g) defines "unauthorized occupation" as under:
"(g) "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."
Section 4 of the Act speaks about issue of show Page 20 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 cause notice before passing an order of eviction and Section 5 deals with eviction of unauthorized occupants. Section 7 relates to direction for payment of rent or damages in respect of public premises. Section 9 speaks about appeal against the order of the Estate Officer. In terms of Section 10, the order passed by the Appellate Authority shall be final and shall not be called in question in any original suit, application or execution proceedings whereas Section 11 speaks about offences and penalty."
20. With regard to the contention of the learned advocate for the petitioner that the Government has earlier sold the Government quarters to the allotees is concerned, similar issue has been cropped up and the Division Bench of this Court has held in the case of N.K. Parmar versus State of Gujarat reported in 1992 (2) GLR 1508, more particularly in paras : 4 and 5 thereof, which is as under :
4. In our view, it is difficult to accept that the Government employees or the employees of the State Transport Corporation have any legal or equitable right to insist that the quarters or blocks which were allotted to them during their service tenure should be sold to them. Normally, residential accommodation is provided to the employees either because of service conditions or for giving facility to them during their service period because of transfer from one place to another and with Page 21 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 a view to see that there is no hardship to them in getting the rental accommodation. If this contention of transferring the quarters or blocks in favour of the employees who are residing therein is accepted, the result would be that, for every Government employee or the employee of the Corporation, the Government or the Corporation would be required to construct new houses or blocks. Further, if some tenements/ blocks were transferred or sold under some scheme in the past by the Government at the subsidised rate to the Government employees, it cannot be said that for all time to come the Government should go on framing such schemes and transferring the blocks/tenements after constructing the same to the employees.
5. With regard to the first contention, it is vehemently sought to be contended by the learned Advocates for the petitioners that, as tenements of 'H' and 'L' Colonies which were allotted for residence to the Government employees are transferred to the Government employees and other persons who were residing in the said tenements on the particular date, the Government should be directed to pass such resolution in favour of the employees who are residing in 'F', 'G', 'K' and Meghaninagar Colonies. In our view, the submission is totally misconceived. It is an admitted fact that the tenements of 'K' Colony were constructed by the Government. It is also apparent from the record that 'F', 'G' and Meghaninagar Colonies were purchased by the Government. For the purchase of Page 22 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 these Colonies, the Government passed Resolution dated 17/03/1977. By the said Government Resolution, the Government had decided to purchase 1154 tenements from the Gujarat Housing Board of 'F' Colony, Shah Alam Roza, 'G' Colony, Rajpur Hirpur and Asarwa Chamanpura area (Meghaninagar Colony).
After the purchase of the tenements the same vested absolutely in the State Government. Prior to that, the State Government had taken the aforesaid tenements on lease from the Gujarat Housing Board because of bifurcation of the bilingual State of Bombay to accommodate the Government employees who were to work either in Sachiyalaya or in the offices of the Heads of Departments set up in Ahmedabad. With regard to 'H' and 'L' Colonies, the Government had passed a Resolution on 18/02/1975 which is Annexure 'E' to Special Civil Application No. 1024 of 1979. As per the said resolution the Government has directed that all the existing 396 'Law Income Group Houses' constructed by the Gujarat Housing Board at Paldi, Ahmedabad, shall be converted from Rental Scheme to Hire-Purchase Scheme for allotment on hire purchase basis on conditions mentioned therein. It should be noted that the aforesaid resolution passed by the State Government was challenged before this Court in group of Special Civil Application in the case of U. K. Acharya V/s. State, [1988 (1)] XXIX (1) GLR 209. After considering the arguments at length the Division Bench of this Court has rejected the petitions. It is held in the said judgement that tenements of 'H' and 'L' Page 23 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 Colonies were constructed by the Housing Board for making tenements available for housing needy persons by allotment on rental basis under low income group housing scheme. Therefore, the tenements which were constructed were to be made available for occupation to persons belonging to the low income group. The Court further observed that after formation of the State of Gujarat, to meet its housing requirements allotments of these houses were made to the transferred Government servants. In those cases also the Court negatived the contentions that the resolution was violative of Art. 14, that it was contrary to Sec. 74 of the Gujarat Housing Board Act and that it was issued by the State of Gujarat under Sec. 82 of the Act without following the procedure laid down therein. In our view, in the present petitions it would suffice to say that tenements constructed in 'H' and 'L' Colonies were not owned by the Government and the Government had not decided to purchase them from the Gujarat Housing Board. They remained as those of the Gujarat Housing Board. They were constructed as per the Circular of the Central Government under a scheme known as 'Low Income Group Housing Scheme'. By the Resolution dated 18/02/1975 the Government had converted the said scheme from rental scheme to hire-purchase scheme for allotment on hire-purchase basis on certain terms and conditions. Therefore, it cannot be said that the petitioners, who are residing in 'F', 'G', 'K' and Meghaninagar Colonies which are owned by the Government, are discriminated. Admittedly 'K' Colony Page 24 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 was constructed by the Government. 'F', 'G' and Meghaninagar Housing Colonies were no doubt constructed by the Gujarat Housing Board but thereafter those tenements were purchased by the State Government. The tenements of 'H' and 'L' Colonies were taken on lease by the State Government but were not purchased. Subsequently, the State Government had passed a resolution converting them from rental to hire- purchase scheme for allotment on hire-purchase basis. Therefore, employees who were residing in 'H' and 'L' Colonies would stand on a different footing and they formed a different class. It cannot be said that the State Government ought to have decided to purchase 'H' and 'L' Colonies and as 'H' and 'L' Colonies are not purchased, it ought not to have purchased 'F', 'G' and Meghaninagar Housing Colonies constructed by the Gujarat Housing Board under some special scheme. Similarly, it would be difficult to accept the contention that because the State Government has permitted the Gujarat Housing Board to dispose of tenements of 'H' and 'L' Colonies, the State Government should be directed to dispose of tenements of other Colonies constructed by the Gujarat Housing Board in favour of the employees who are residing there as tenants. In our view, in this type of cases, there is no question of violation of Art. 14 because it cannot be said that the petitioners are discriminated against because of fortuitous circumstances of sale of tenements of 'H' and 'L' Colonies in favour of some Government employees or employees of the S.T. Corporation or other persons.
Page 25 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 If by a fortuitous circumstance a chance or benefit of purchasing the tenements is given by a Government Resolution, it does not amount to a privilege having conferred upon some Government employees and, therefore, similar privilege should be granted to rest of the employees. Fortuitous circumstance in this case would be that some employees were allotted tenements in 'H' and 'L' Colonies during their service tenure and others were allotted in other Colonies and that by chance or for some reasons the Government had issued a resolution converting the rental scheme for 'H' and 'L'. Colonies to hire-purchase scheme. In the case of Union of India v. E. S. Soundara Rajan, AIR 1980 SC 959, the Court inter alia held as under :
"It is equally important to remember the well established proposition that there cannot be a case of discrimination merely because fortuitous circumstances arising. out of some peculiar developments or situations create advantages or disadvantages for one group or the other although in the earlier stages they were, more of less, alike. If one class has not been singled out for special treatment, the mere circumstance of advantage accruing to one or the other cannot result in breach of Art. 14 of the Constitution."
In any case, rightly or wrongly if some bounty is granted by the State Government in favour of those Page 26 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 who were residing in "H" and "L" Colonies, it cannot be said that the State Government should be directed to confer the similar bounty to all the employees. If the petitioners were aggrieved by the said order of the State Government granting the tenements of "H" and "L" Colonies in favour of the persons who residing therein, they ought to have challenged it at the relevant time. The validity of the said resolution cannot be decided in this petition. (In the case of U. K. Acharya V/s. State [1988 (1)] XXIX (1) GLR 209, this Court has upheld the validity of the resolution of 1975 in the petitions filed by other employees with which we are not concerned in these petitions.) If by the said resolution of 1975, some employees were arbitrarily favoured, then at the most the Court would strike down the said resolution, but it would hardly mean that the Court can issue direction to the State Government that similar resolution should be passed giving largesse or bounty to the petitioners.
21. Further, the authority has properly followed the entire procedure for eviction under the provisions of Section 5 of the Act, which reads as under :
"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 any evidence he may produce in support of the Page 27 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 same and after giving him a reasonable opportunity of being heard, by himself, or by advocate, attorney or pleader, the competent officer is satisfied that any of the reasons specified in sub-section (1) of section 4 exists, 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.
(2) If any person refuses or fails to comply with the order of eviction within thirty days of the date of its service under sub-section (1), the competent officer or any other officer duly authorised by the competent officer in this behalf may evict that person from, and take possession of, the public premises and may for that purpose, use such force as may be necessary.
(3) Notwithstanding anything contained in sub- section (2), where a person who has been ordered to vacate any public premises for the reasons specified in sub-clause (i) or (iv) of clause (a) of sub-sec. (1) of sec. 4 pays to the competent officer the rent in arrears or carries out or other- wise complies with the terms contravened by him to the satisfaction of the competent officer as the case may be, within one Page 28 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 month, of the date of service of the notice or such longer time as the competent officer may allow, the competent officer shall, in lieu of evicting such person under sub-section (2), cancel his order made under sub- section (1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served on him."
Thus, the above provisions empower the authority to order eviction of an unauthorized occupants and therefore, the authority has rightly passed the order, which the trial Court has rightly upheld by dismissing the appeals preferred by the petitioners.
22. In view of above and considering the facts and circumstances of the case as well as keeping in mind the ratio laid down by the various decisions of this Court as well as of the Hon'ble Apex Court, this Court finds that the trial Court has not committed any error while passing the impugned judgments. The grounds agitated by the petitioners have rightly dealt with by the trial Court. There is no illegality and infirmity in the impugned judgments. The trial Court has properly dealt with all the aspects of the matters, evaluated all the evidence in detail and considered the various decisions of the Hon'ble Apex Court while passing the impugned judgments. The trial Court has not committed any Page 29 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 error much less error of law while passing the impugned judgments. The trial Court has given cogent and convincing reasons in the impugned judgments. This Court cannot re-
appreciated the evidence when it is properly appreciated by the trial Court. This Court has very limited jurisdiction under Article 227 of the Constitution of India as held by the Hon'ble Apex Court in the case of M/s. Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly in paras 15 to 17, which are as under :
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 1 Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Page 30 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 Others, (2010) 1 SCC 217 violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious Page 31 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to Page 32 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex- parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."
23. In view of above, this is a fit case where the process of Court is sufficiently abused by taking undue advantage by the persons who are not entitled to occupy the Government quarters since more than ten years, that too without paying any rent in accordance with rules. Therefore, this is a fit case for imposing heavy cost upon the Page 33 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 petitioners. However, as reported that the petitioners are retired Class IV employees, this Court is constrained itself from imposing heavy cost, but it is necessary to set example in such cases and therefore, cost of Rs.15,000/- is required to be imposed upon each petitioners.
24. This Court finds that it is a bounded duty of the respondent Authorities to take appropriate steps in such cases. We can see from the chronology of events that much water has flown. The authorities have neither shown their promptness nor have taken possession back from the petitioners till date. There is no stay by this Court or by any forum/Court against the impugned judgment and order passed by the trial Court. These petitions are pending since 2013 without any interim protection against eviction of the quarters. It is expected that the officials concerned should be more vigilant in future in such matters, since many Government employees are waiting for their turn, as noted above.
25. With great pain it is observed that the unauthorized occupants must recollect that rights and duties are correlative as the rights of one person entail the duties of another person. Similarly, the duty of one person entails the rights of another person. Observing this, the unauthorized Page 34 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 occupants must appreciate that their act of overstaying in the Government quarters directly infringes the right of another.
No law or directions can entirely control this act of disobedience but for the self realization among the unauthorized occupants.
26. Considering the totality of the facts and circumstances of the case, these petitions therefore need to be dismissed.
27. In view of above, the following order is passed :
27.1 All these petitions are dismissed accordingly.
27.2 All the petitioners are directed to pay the cost of Rs.15,000/- each before the Gujarat State Legal Services Authority, High Court Compelx, Sola, Ahmedabad, within a period of 30 days from the date of receipt of copy of this Court and submit the receipts thereof before the Registry of this Court.
27.3 Rule is discharged in all the petitions.
28. Learned AGP Mr.Chintan Dave assures that the Government officers shall be vigilant and shall act in prompt Page 35 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023 C/SCA/17396/2013 JUDGMENT DATED: 01/05/2023 manner in future in such matters.
29. It is expected that the petitioners shall cooperate the legal procedure in true spirit.
30. It is also expected that the authorities will calculate the dues of rent as per the record.
Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 36 of 36 Downloaded on : Fri May 05 20:37:02 IST 2023