Gujarat High Court
Nandaben vs Divisional
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
NANDABEN RAJENDRA BALKRUSHNA BOTREV/SDIVISIONAL DIRECTOR C/LPA/1011/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1011 of 2013 In SPECIAL CIVIL APPLICATION NO. 9549 of 2013 =========================================================== NANDABEN RAJENDRA BALKRUSHNA BOTRE & 6....Appellant(s) Versus DIVISIONAL DIRECTOR & 1....Respondent(s) =========================================================== Appearance: MR MIHIR H PATHAK, ADVOCATE for the Appellant(s) No. 1 - 7 MR SHALIN MEHTA, SENIOR ADVOCATE assisted by MR HEMANG M SHAH, ADVOCATE for the Respondent(s) No. 1 MR UTKARSH SHARMA, AGP for the Respondent(s) No. 2 =========================================================== CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 17/09/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. Learned Senior Advocate appearing for respondent No.1 Divisional Director, Gujarat State Road Transport Corporation did mention in the beginning that there are material suppressions in the petition, i.e. SCA No.9549 of 2013.
2. The Court put the learned Advocate for the appellants-original petitioners that in the event this Court also comes to conclusion that there are suppressions of material fact, the appellants-original petitioners will be subject to exemplary costs.
3. To this, learned Advocate for the appellants-original petitioners responded that there is suppression on the part of respondents also. (emphasis supplied).
3.1 Learned Advocate for the appellants-original petitioners opened the matter by saying that his clients were residing in a Chawl prior to 1957 and in the year 1957, his clients were given accommodation with an understanding that no rent will be required to be paid and qualified persons were given job in the S.T. Corporation.
4. The Court requested learned Advocate for the appellants-original petitioners to clarify as to whether grant of alternative accommodation without paying any rent and grant of job were optional or to some , accommodation was given and to some , job was given. Learned Advocate avoided the reply to this question.
5. After the matter is heard for some time, it was again inquired by the Court as to whether all those persons who were residing in the Chawl were given accommodation which is in question and whether all were given job also. Learned Advocate for the appellant-original petitioners again avoided to answer this question. At last, he admitted that he has no information about the same.
6. At this juncture, learned Senior Advocate for respondent No.1 invited attention of the Court to paras-4 and 5 of the judgment and order of the learned Single Judge, which contain all information which is suppressed by the appellants-original petitioners as the same is not set out in the memo of petition. Para-4 reads as under:-
4. Shri Barot Kalpesh Chandubhai, has filed affidavit in reply on behalf of the respondent No.1 Gujarat State Road Transport Corporation. In para 5 of the affidavit in reply the deponent states as under:
5. Before giving reply to the various averments and submissions made by the petitioners, the Hon'ble Court ought to take into consideration the following facts:
Petitioner No.1 [a] The petitioner had filed HRP Suit No.2295/92 before the Small Causes Court, Ahmedabad. Being aggrieved by the decision rendered by the Small Causes Court, Ahmedabad, the petitioner file Civil Appeal No.197/97. The same also came to be dismissed.
[b] The petitioner had filed Civil Revision Application No.1589/98 for challenging the judgment and decree recorded in Civil Appeal No.167/97 by the learned Judges of the Small Causes Court, Ahmedabad. On 01.10.1999, this Hon'ble Court rejected the Civil Revision Application.
[c] The petitioner thereafter filed Civil Suit No.2714/99 before the City Civil Court, Ahmedabad praying that the Corporation and the Police along with its personnels, agents servants, etc. should not evict them from the premises. On 20.09.2011, the City Civil Court, Ahmedabad dismissed the Civil Suit for nonprosecution.
[d] The petitioner No.1 had filed Special Civil Application No.8351/06 for the purpose of challenging the decision rendered by the Lower Court in HRP Suit No.2295/92. On 20.04.2996, at admission stage this Hon'ble Court dismissed Special civil Application No.8351/06. While dismissing the Special Civil Application had observed that the petitioner was bound to return the possession of the quarter upon completion of service period. Being aggrieved by the dismissal order, the petitioner preferred Letters Patent Appeal No.737/06. On 03.05.2006, this Hon'ble Court dismissed the Letters Patent Appeal.
[e] On 05.07.2011, the respondent no.1 Corporation had issued a notice to the petitioners to vacate the residential quarter that had been allotted to the original employee. The Corporation directed the petitioner to vacate the premises on or before 07.07.2011 failing which they would be evicted.
[f] In the meanwhile, the petitioner filed Special Civil Application no.6010/11. No notice was issued to the present respondent no.1 Corporation which had been impleaded as party respondent No.1 in Special Civil Application No.6010/11. On 14.06.2011, the advocate appearing for the petitioner no.1 and 2 sought permission to withdraw Special Civil Application no.6010/11 for the purpose of making a representation. In fact, at the relevant point of time, the advocate appearing for the petitioner had made a false statement before this Hon'ble Court by stating that the same Corporation is stated to be selling to its employees the quarters constructed for the staff in various cities and divisions of the S.T.Corporation . [A copy Page 3 of 10 of the order dated 14.06.2011 in Special Civil Application no.6010/11 is placed on pg no.2930].
[g] On 27.03.2012, the respondent No.1 Corporation addressed a letter to the Deputy Commissioner of Police for purpose of lodging complaint under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[h] On 28.03.2012, the respondent no.1 Corporation addressed a letter to the Police Inspector, Danilimbda for the purpose of lodging a FIR under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[i] On 05.05.2012, the respondent no.1 Corporation had issued a public advertisement informing the public as well as the petitioner herein to vacate the premises within a period of 10 days failing which they would be evicted forcefully.
[j] On 01.06.2013, the respondent no.1 Corporation had issued a notice to vacate the premises within 48 hours failing which they would be evicted from the quarter. A copy of the paper book of the aforesaid documents is annexed hereto and marked as ANNEXURE Z1.
Petitioner no.2 [a] The legal heirs of the erstwhile employee had filed HRP Suit no.129/93 before the Small Causes Court, Ahmedabad. On 06.07.1997, the Small Causes Court rejected HRP Suit no.129/93.
[b] On 29.11.1996, the Competent Officer of the Corporation had passed an order whereby the erstwhile employee had been directed to give vacant possession of the quarter within a period of 7 days along with Rs.49,500/towards outstanding rent amount to the Corporation.
[c] The petitioner filed Civil Appeal no.19/98 challenging the judgment and decree passed in HRP Suit no.129/93. On 11.04.1998, Civil Appeal no.19/98 came to be dismissed with costs.
[d] The petitioner filed Civil Revision Application no.1592/98 before this Hon'ble Court. On 27.09.1999, this Hon'ble Court rejected the Civil Application at the very threshold itself.
[e] On 26.05.2010, the respondent no.2 Corporation issued a notice to the petitioner directing her to vacate the premises.
[f] The petitioner thereafter had filed Civil Suit [CCC] no.636/12 before the City Civil Court, Ahmedabad challenging the notice issued by the Corporation to vacate the staff quarters and pay Rs.5,08,800/as market rent to the Corporation. On 26.03.2013, the Notice of Motion filed by the petitioner came to be dismissed by the City Civil Court, Ahmedabad. The petitioner was directed to handover possession of the quarter to the Corporation.
[g] On 05.07.2011, the respondent no.1 Corporation had issued a notice to the petitioner directing her to vacate the residential quarter that had been allotted to the original erstwhile employee. The Corporation had directed the petitioner to vacate the premises forthwith.
[h] On 27.03.2012, the respondent no.1 Corporation addressed a letter to the Deputy Commissioner of Police for the purpose of lodging complaint under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[i] On 28.03.2012, the respondent no.1 Corporation addressed a letter to the Police Inspector, Danilimbada for the purpose of lodging a FIR under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[j] On 05.05.2012, the respondent no.1 Corporation had issued a public advertisement informing the public as well as the petitioner herein to vacate the premises within a period of 10 days failing which they would be evicted forcefully. A copy of the paper book of the aforesaid documents is annexed hereto and marked as Annexure Z2.
Petitioner No.3:
[a] An eviction order had been passed by the Competent Officer of the Corporation directing the petitioner to vacate the quarters on or before 31.03.1985.
[b] The petitioner had filed Appeal no.42/85 challenging the order dated 04.03.1985 passed by the Competent Officer of the Corporation. On 12.08.2012, City Civil Court, Ahmedabad allowed Civil Appeal no.42/85.
[c] Being aggrieved by the aforesaid order the Corporation filed Special Civil Application no.16646/12 before this Hon'ble Court. The hearing of Special Civil Application is pending. The next date of hearing is 09.07.2013.
[d] On 27.03.2012, the respondent no.1 Corporation addressed a letter to the Deputy Commissioner of Police for the purpose of lodging complaint under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[e] On 28.03.2012, the present respondent no.1 Corporation addressed a letter to the police Inspector, Danilimbada for the purpose of lodging a FIR under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[f] On 05.05.2012, the respondent no.1 Corporation had issued a public advertisement informing the public as well as the petitioner herein to vacate the premises within a period of 10 days failing which they would be evicted forcefully. A copy of the paper book of the aforesaid documents is annexed hereto and marked as Annexure Z3.
Petitioner no.4:
[a] On 17.03.1998, a letter was issued to the petitioner directing her to give back vacant possession of the quarter within 15 days.
[b] The Competent Officer of the Corporation had passed an order directing the petitioner to vacate the quarters on or before 09.11.1998 and if the quarter is not vacated then an amount of Rs.800/per month towards usage charges would be paid by the unauthorized encroacher.
[c] The petitioner had filed HRP Suit no.2206/92. On 18.11.1997, the learned trial Judge dismissed the said suit. Being aggrieved by the decision rendered in the HRP Suit no.2206/92, the petitioner filed Civil Appeal no.190/97. On 14.09.98, the Chief Judge dismissed Civil Appeal no.190/97.
[d] The petitioner had preferred Civil Appeal no.21/98 before the Principal Judge, City Civil Court, Ahmedabad. On 05.01.1999 the said Civil Appeal no.21/98 came to be dismissed.
[e] On 26.05.2010, the Corporation issued a notice to the petitioner to vacate the premises forthwith.
[f] The Corporation had addressed a letter to the petitioner informing her to pay an amount of Rs.3,21,600/towards market rent with effect from 31.07.2010.
[g] On 04.10.2011, the Corporation had addressed a notice to the son of the petitioner informing him to vacate the quarter and give peaceful possession of the same within a period of 8 days. The son of the petitioner refused to accept the notice and therefore the same was affixed on the wall of the house.
[h] The petitioner had filed Civil Suit no.1068/11 for the purpose of restraining the Corporation from taking possession of the quarter. On 07.07.2011, the City Civil Court, Ahmedabad dismissed the Civil Suit.
[i] Pursuant thereto the petitioner had filed Appeal from Order no.269/11 before this Hon'ble Court. On 17.01.2012, the said Appeal from Order came to be withdrawn. A copy of the paper book of the aforesaid documents is annexed hereto and marked as Annexure Z4.
Petitioner no.5:
[a] On 25.05.1999, the Competent Officer of the Corporation had passed an eviction order against the petitioner to vacate the premises on or before 24.06.1999 failing which the petitioner would have to pay an amount of Rs.800/per month towards usage charges to the Corporation.
[b] The petitioner had filed Civil Appeal no.29/99 before the City Civil Court, Ahmedabad. On 31.08.1999, the Principal Judge dismissed Civil Appeal no.29/99.
[c] On 07.05.2011, the petitioner filed Civil Suit no.1069/11 before the City Civil Court, Ahmedabad. On 07.07.2011, the learned Judge dismissed the notice of motion filed by the petitioner. On 27.03.2012, the learned Judge also dismissed Civil Suit no.1069/11.
[d] On 27.03.2012, the respondent no.1 Corporation addressed a letter to the Deputy Commissioner of Police for the purpose of lodging complaint under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[e] On 28.03.2012, the respondent no.1 Corporation addressed a letter to the police Inspector, Danilimbda for the purpose of lodging a FIR under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[f] On 05.05.2012, the respondent no.1 Corporation had issued a public advertisement informing the public as well as the petitioner herein to vacate to premises within the period of 10 days failing which they would be evicted forcefully. A copy of the paper book of the aforesaid documents is annexed hereto and marked as Annexure Z5.
Petitioner no.6:
[a] On 24.05.1999, the Competent Officer of the Corporation had passed an order directing the petitioner to pay an amount of Rs.800/per month towards usage charges with effect from 01.02.1986 till vacant possession is not given.
[b] The petitioner had filed Civil Appeal no.27/99 before the City Civil Court, Ahmedabad. On 31.08.1999, the Civil Appeal came to be dismissed.
[c] On 05.07.2011, the Corporation addressed a notice to the petitioner informing him to vacate the quarter on or before 07.07.2011.
[d] On 27.03.2012, the respondent no.1 Corporation addressed a letter to the Deputy Commissioner of Police for the purpose of lodging complaint under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[e] On 28.03.2012, the respondent no.1 Corporation addressed a letter to the Police Inspector, Danilimbada for the purpose of lodging a FIR under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[f] On 05.05.2012, the present respondent no.1 Corporation had issued a public advertisement informing the public as well as the petitioner herein to vacate the premises within a period of 10 days failing which they would be evicted forcefully. A copy of the paper book of the aforesaid documents is annexed hereto and marked as Annexure Z6.
Petitioner no.7:
[a] On 17.05.1999, the Competent Office of the Corporation passed an order directing the petitioner to vacate the quarter on or before 15.06.1999.
[b] On 05.03.2011, the petitioner had filed Civil Suit no.692/11 before the City Civil Court, Ahmedabad.
[c] On 05.07.2011, the Corporation addressed a letter to the petitioner requesting him to vacate the quarter on or before 07.07.2011.
[d] On 07.10.2011, a notice was issued by the Corporation to the petitioner directing him to vacate the quarter within 8 days failing which he would be evicted from the quarter.
[e] On 16.08.2011, the notice of motion filed by the petitioner in Civil Suit no.692/11 came to be dismissed whereas on 27.03.2012 the Civil Suit instituted by the petitioner came to be dismissed.
[f] On 27.03.2012, the respondent no.1 Corporation addressed a letter to the Deputy Commissioner of Police for the purpose of lodging complaint under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[g] On 28.03.2012, the respondent no.1 Corporation addressed a letter to the Police Inspector, Danilimbda for the purpose of lodging a FIR under sections 442, 447, 406, 506, 420 and 114 of the Indian Penal Code, 1860 against the petitioner.
[h] On 05.05.2012, the present respondent no.1 Corporation had issued a public advertisement informing the public as well as the petitioner herein to vacate the premises within a period of 10 days failing which they would be evicted forcefully. A copy of the paper book of the aforesaid documents is annexed hereto and marked as Annexure Z7.
The petitioners have not stated the aforementioned facts in their petition and thereby misled this Hon'ble Court by suppressing material facts. Therefore, on this sole ground itself the present petition deserves to be dismissed at the threshold itself
7. To this, the submission of the learned Advocate for the appellants-original petitioners is that it may be that this information was not incorporated in the memo of petition, but there are accompanying documents to the petition from which this information can be derived.
8. This Court is of the opinion that if that is so, this speaks for the conduct of the learned Advocate who drafted the memo of petition. If the poor clients have come to the learned Advocate and have supplied the necessary documents, it was the duty of the learned Advocate to incorporate every piece of information contained in those documents in the memo of petition. If the documents are supplied by the clients and the learned Advocate does not include that information in the memo of petition, it is nothing but a professional misconduct on the part of the learned Advocate.
9. At this juncture, we do not go into this question because we feel that a larger question is very much at large that is respondent No.1 must take possession of the premises for which regular employees of the S.T. Corporation are waiting for years and see that these persons who are in unauthorized occupation of the same are removed.
10. At the request of learned Senior Advocate for respondent No.1, it is clarified that no stay granted by any Court is operation in the matter. It is open for the respondent No.1 to take possession of the premises in question. This clarification is warranted in view of the suppression of facts set out hereinabove.
11. At the request of learned Senior Advocate for respondent No.1, the matter is adjourned to 07.10.2013.
A copy of this order be made available to the learned Senior Advocate for respondent No.1 as well as to learned AGP to see that necessary action is taken in the matter.
(RAVI R.TRIPATHI, J.) (MOHINDER PAL, J.) SHITOLE Page 16 of 16