Gujarat High Court
Mangrol Takuka Panchayat vs Ranabhai @ Gagubhai Gigabhai And 2 Ors. on 10 January, 2008
Equivalent citations: (2008)2GLR1109, AIR 2008 GUJARAT 123
Author: K.M. Thaker
Bench: K.M. Thaker
JUDGMENT K.M. Thaker, J.
1. In present petition under Article 227 of the Constitution of India, Mangrol Taluka Panchayat is the petitioner and has challenged order dated 17.2.1993 and order dated 6.5.93 passed by the learned Extra Assistant Judge, Junagadh, The petitioner Panchayat had entered into the litigation for securing possession of public premises [residential accommodation] allotted to one Mr. JB Vagh, i.e. father of the respondents No. 2 and 3. It has come on record that said Mr. Vagh died in December 1988.
2. The petitioner Panchayat expected that on the sad demise of Mr. JB Vagh, to whom the quarter in question was allotted, the vacant and peaceful possession would be handed over to the Panchayat by his legal heirs and representatives, but the failure on part of the legal heirs and representatives of Mr. Vagh resulted into the litigation which has given rise to the present petition.
3. The facts, on which the petitioner has based the contentions and prayed for the relief in the petition, are as follows;
3.1. The petitioner is a statutory body established under the provisions of the Gujarat Panchayat Act, 1961. It is contended by the petitioner Panchayat that after the said Act came into force, the State of Gujarat, by various notifications and orders, transferred and vested diverse immovable properties - including buildings - in favour of the Panchayats and accordingly certain buildings were transferred and vested in favour of the petitioner Panchayat as well. It is also claimed by the petitioner Panchayat that one of the properties which came to be transferred and vested in the Panchayat happens to be a residential accommodation situate on the western side of Tower Ground, Mangrol. The said property, according to the petitioner Panchayat, was being used as residential accommodation for President of the Panchayat.
4. The petitioner Panchayat has stated that one Shri JB Vagh who was appointed as President of the petitioner Panchayat and upon his appointment the said residential accommodation was allotted to him by the petitioner Panchayat. According to the petitioner Panchayat, said Mr. Vagh took possession of the said property, as President of the Panchayat, on 1.7.88, he unfortunately expired on 13.12.88 i.e. after 5 months.
5. According to the petitioner Panchayat, after the sad demise of said Shri JB Vagh, his wife and his son, i.e., the legal heirs and representatives of Mr. Vagh were not residing in the said quarter but one Shri Ranabhai @ Gagubhai Gigabhai, i.e., respondent No. 1 herein had unauthorisedly and illegally entered into the premises in question.
6. The petitioner Panchayat claims that the said quarter is reserved for allotment to the incumbent in the office of Panchayat President.
7. In view of such unauthorised and illegal occupation and possession of the premises in question by the said respondent No. 1, the petitioner Panchayat started making written and oral requests to the legal heirs and representatives of Mr. Vagh, the then President of the Panchayat to hand over possession of the quarter in question, however, the legal heirs of said Mr. Vagh, despite such requests, did not hand over the possession to the petitioner Panchayat.
8. In such circumstances, the petitioner Panchayat was constrained to institute eviction proceedings against present respondents under the provisions of Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as the 'said Act'), through Taluka Development Officer, Mangrol by filing an appropriate application before the Deputy District Development Officer, Junagadh. In the said proceedings, the petitioner Panchayat also prayed for recovery of about Rs. 8100 towards arrears. In the said proceedings, the wife of said Mr. Vagh did not file any reply-objections, however a reply was filed by respondent No. 3 i.e., the son of said Mr. Vagh claiming that he did not know anything in the matter and was wrongly impleaded as a party. It is pertinent to note that the respondent No. 1, who is, it is claimed by the petitioner, a stranger, had filed a reply-objection opposing the eviction application contending that he was in legal and rightful possession and that the Deputy District Development Officer, Junagadh, was not the competent authority under the Act, to hear and decide said application. The petitioner Panchayat, during the hearing, also contended that the said respondent No. 1 is not and was not an employee of the petitioner Panchayat and was never, officially or otherwise, allotted the premises in question by the petitioner. It, however, transpires that said respondent No. 1 claimed to be heir of said Shri JB Vagh, i.e., the then President of the petitioner Panchayat.
9. After hearing the contesting parties and after taking into consideration the evidence on record, the District Development Officer, Junagadh, passed an order dated 22.7.1991 against the respondents directing eviction of property in question. Upon being aggrieved by the said eviction order, the respondent No. 2 preferred a Regular Civil Appeal No. 155/1991 before the District Court.
10. The learned District Court quashed the aforesaid eviction order dated 22.7.1991 and remanded the entire matter for deciding the same afresh.
11. It is pertinent that the respondent No. 1 was dissatisfied with the said judgment and order by the learned District Court and therefore he filed a petition, being S.C.A. No. 2263/92, in High Court on diverse grounds.this Court [Coram: Hon'ble Mr. Justice B.S. Kapadia, as His Lordship then was] by an order dated 31.3.92 was pleased to dismiss the said petition.
12. In view of the order passed by the learned District Court, notices of hearing were issued by the District Development Officer for hearing the parties afresh. During the fresh hearing before Deputy District Development Officer, the respondent No. 1 herein reiterated his earlier contentions and after hearing the parties the said authority passed an order dated 19.12.92 against the respondents and directed the respondents to hand over the possession of the premises in question within 30 days.
13. The respondents No. 1 and 2, feeling aggrieved by the said order of 19.12.1992, filed Regular Civil Appeal No. 1/93 before the learned District Court on or around 1.1.93 under Section 9 of the said Act.
14. The petitioner Panchayat has claimed that in the said Appeal No. 1/93 the respondents No. 1 and 2 herein did not disclose the fact regarding the SC.A. No. 2263/92 and/or about the order passed by this Court in the said petition. The petitioner Panchayat has further claimed that during the hearing before the learned District Court reliance was placed by present respondents No. 1 and 2 on a notification to substantiate their contention that Deputy Collector (Land) would be the competent officer and the Deputy District Development Officer is not the competent officer in respect of the premises in question. The petitioner has contended that the learned District Court, relying upon the notification, passed the judgment and order dated 17.2.1993 whereby the learned Court allowed the Appeal and set aside the eviction order dated 19.12.1992.
15. According to the petitioner Panchayat, there was apparent error on the face of the said judgment which was passed by relying upon the notification referred to by the respondents No. 1 and 2 whereas there was a subsequent notification which provided that the Dy. District Development Officer (Revenue) of each District Panchayat would be the competent officer for the premises belonging to or taken on lease by or on behalf of Panchayat, and that therefore the petitioner Panchayat, relying on the subsequent notification, preferred a review application being R.A. No. 1/93 before the learned District Court.
16. The learned District Court, after hearing the parties, rejected the said review application by an order dated 6.5.93 on the ground that it had no power to review the said order.
17. Thus, aggrieved by the said order dated 6.5.93 and also by the order dated 17.2.93, the petitioner Panchayat has approached this Court under Article 227 by way of this petition.
18. The petition came to be admitted in October 1993, however the respondents have not preferred to oppose the same by filing any affidavit. The respondent No. 3, though served, has preferred not to attend the proceedings.
19. Heard Mrs. Pahwa, learned advocate for the petitioner and Mr. RD Dave, learned advocate for respondents No. 1 and 2.
20. Mrs. Pahwa, learned advocate in her submissions contended that both the impugned orders are erroneous and unjustified, besides being contrary to the provisions contained under the Act as well as relevant and applicable provisions. She further submitted that the premises in question is undisputedly public premises and it was allotted to said Mr. Vagh on account of his appointment as 'President' of the petitioner Panchayat and that therefore upon the office being vacated, due to sad demise of the incumbent i.e. Mr. Vagh in the office, the vacant and peaceful possession of the premises in question ought to be returned and handed over to the Panchayat and no one, including the legal heirs and representatives of officer-employee of the Panchayat, would have any right to continue to occupy the premises and/or to hold the possession thereof. Mrs. Pahwa, learned advocate also submitted that in the event such premises are not vacated and possession is not returned, then the Panchayat is entitled to invoke the provisions under the Act for securing the possession of the premises. She submitted that since the heirs of said Mr. Vagh failed and neglected to hand over the possession, the proceedings under the Act were instituted and the competent authority passed the eviction order. She submitted that the impugned orders deserve to be set aside and the eviction order passed by the concerned authority deserve to be restored.
21. Mr. RD Dave, learned advocate appearing for respondents No. 1 and 2 has opposed the said submissions and has, inter alia, claimed tenancy rights in respect of the said premises. He also reiterated the objection against the authority of Dy. District Development Officer to pass the eviction order on the ground that he was not the competent officer. On such contentions, Mr. Dave, learned advocate has opposed the petition.
22. For deciding the rival contentions and controversy, it is relevant to take into consideration the relevant provisions. The relevant provisions under the Act are Section 2(d), 2(f),2(h), Section 4, Section 5(1). The said provisions read as under;
2. Definitions__In this Act, unless the context otherwise requires,__
(d) 'premises' means any land or any building or part of a building and includes___
(i) the garden, grounds and outhouses, if any, appertaining to such building or part of a building; and
(ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;
(f) 'public premises' means any premises belonging to or taken on lease or requisitioned by, or on behalf of, the State Government, and includes any premises belonging to, or taken on lease by, or on behalf of__
(i) ---
(ii) a panchayat constituted under the Gujarat Panchayats Ac, 1961, (Guj.VI of 1962);
(iii)----
(iv) ----
(h) 'unauthorised occupation' in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.
5. Eviction of unauthorised occupants.___ (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and...the competent officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises; and there upon the order shall be deemed to have been duly served on all the persons concerned.
23. From the conjoint reading of Section 2(d) and 2(f), it becomes clear that the premises in question is 'public premises' as contemplated under the said Act. Therefore, the provisions under the Act would be applicable and attracted in respect of the premises in question. This brings into picture the definition of the term 'unauthorised occupation', which is provided under Section 2(h). As per the said provision, any person who occupies public premises, without authority, for such occupation, then he is in unauthorised occupation. The said term also includes continuance of occupation of the public premises by any person, even after the authority under which he was allowed to occupy the premises, expires or gets determined for any reason whatsoever.
24. The aforesaid definition makes it clear that, even in cases where a person is lawfully inducted in the premises i.e., a person gets occupation of the premises with permission of the authority for such occupation, yet he will be said to be in unauthorised occupation of the said premises as soon as the permission/authority under which he was allowed to occupy the premises expires or is determined for any reason whatsoever. The authority permitting the occupation of the public premises may get determined and come to an end on account of diverse eventualities e.g., retirement, death, termination of employment, person demitting the office, resignation or the competent officer cancelling the authority to occupy the premises. The list is only illustrative and not exhaustive. Hence, the authority to occupy the public premises may come to an end for diverse reasons and as soon as the authority gets determined, then immediately the occupation of the public premises would turn into Sunauthorised occupation.
25. In present case, said Mr. JB Vagh was allowed to occupy the premises in question by the petitioner Panchayat in view of the fact that he was appointed as 'President' of the Panchayat. Thus, said Mr. Vagh got the authority to occupy the public premises and came in the occupation of the premises in question in view of his appointment as 'President' of the Panchayat. However, unfortunately he died after a period of about 5 to 6 months. Consequently, the authority under which the occupation of the premises was permitted, got determined and came to an end upon the death of Mr. Vagh. Thus, as per the provision contained in Section 2(h), the occupation of the premises by his legal heirs after the sad demise of Mr. Vagh, became unauthorised occupation.
26. In that view of the matter, the legal heirs of said Mr. Vagh were under obligation to hand over peaceful and vacant possession of the premises in question to the petitioner Panchayat.
27. It, however, did not happen despite requests by the petitioner Panchayat. It is claimed that under the circumstances, the petitioner Panchayat repeatedly made oral and written requests to the heirs of said Mr. Vagh to hand over peaceful and vacant possession of the premises in question. However when legal heirs of said Mr. Vagh did not hand over possession despite repeated requests, the petitioner Panchayat approached, in prescribed manner, the Dy. District Development Officer, who, according to the Panchayat was the competent authority for the purpose.
28. It is pertinent that in the said proceeding the respondent No. 3, i.e., the Son of said Mr. Vagh took up a stand that he did not know anything about the matter and/or dispute in question and that he was wrongly joined as a party and he on such ground requested to be discharged from the proceedings. According to the Panchayat, only respondents No. 2 and 3 were the legal heirs and representatives of said Mr. Vagh. However, to their information, which is claimed to have come to their knowledge after the death of said Mr. Vagh, the respondent No. 1 had entered into possession of the premises in question and his entry in the premises was totally unauthorised and without knowledge of the petitioner Panchayat. The said respondent No. 1 appears to have claimed before the learned District Court and the District Development Officer that he was heir and representative of said Mr. Vagh. It, however, transpires from the record that, no material to substantiate the said claim was ever produced by respondent No. 1 before the learned District Court or Dy. District Development Officer.
29. In this regard, it is pertinent to note that during the proceeding before the Dy. District Development Officer and the learned District Court, the respondent No. 1 and respondent No. 2 have made contradicting statements and submissions inasmuch as on one hand respondent No. 2 i.e., the widow of said Mr. Vagh has submitted before the District Development Officer and the learned District Court that respondent No. 1 was, right from beginning, staying with them, i.e., with said Mr. Vagh, and Mrs. Vagh (respondent No. 2) and their son, whereas, on the other hand the respondent No. 1 has claimed and stated that he had entered into the premises upon an arrangement with said Mr. Vagh as said Mr. Vagh was having his own premises in the town and therefore he was not intending to stay in the premises in question and it was in view of such an arrangement that he had entered into the premises in question and some of the officers of the Panchayat had also agreed to the said arrangement and agreed to allow the respondent No. 1 to occupy the premises upon payment of rent.
30. It is relevant to note that, no material, much less any cogent evidence, supporting such allegations and claim has been put on record by respondent No. 1 and on the other hand his said claim and allegations are totally contrary to what was stated by the respondent No. 2, i.e., widow of said Mr. Vagh. In this view of the matter, the decision of District Development Officer that neither the version of respondent No. 1 nor of respondent No. 2 was reliable and therefore not acceptable, cannot be said to be incorrect and unjustified and no fault can be found with the findings and conclusions of the said authority in holding that the version of the respondent No. 1 and/or respondent No. 2 are not worthy of any credence and/or reliable and they are diagonally opposite to one another.
31. It appears that, respondent No. 1 tried to produce some documents like electricity bills and/or some other documents to establish that he had installed electrical pump for drawing water etc., to support his claim that he was in possession of the premises in question. When the method in which he had secured entry in the premises in question was matter of controversy, then documents, which purportedly support his claim that he was in possession and occupation of the premises in question, are of no avail inasmuch as what is required to be shown, for opposing the application of petitioner Panchayat under the Act and/or the eviction order, is that the concerned person is in 'authorised occupation' of the premises in question and existence or continuance of such 'authority' during the occupation of the premises. Even if the documents produced by respondent No. 1 are considered, then also it cannot justify or substantiate the claim of respondent No. 1 that he is in authorised occupation of the premises in question.
32. In view of he provisions under Section 2(h) of the Act, occupancy of the premises in question and the authority for the said purpose, came to an end upon the sad demise of said Mr. Vagh to whom the premises in question was allotted in view of his appointment as 'President' of the Panchayat. The premises in question, as per the petitioner Panchayat, are designated for the use of the person in the office of Panchayat President and actually the said premises have been, as per the Panchayat, vested in the Panchayat by the State Government for the purpose of its use as 'residential accommodation' by President of the Panchayat and that is how the premises in question belong to the petitioner Panchayat. Under the circumstances, the respondents are clearly in unauthorised occupation of the premises in question and the finding and conclusion of Dy. District Development Officer to the effect that the said respondents are in unauthorised occupation of the premises in question is neither incorrect nor perverse nor arbitrary and without application of mind. On the contrary, it is based on the appreciation of facts and evidence and consideration of the relevant and applicable statutory provisions.
33. This takes the matter to the contention of the respondent that the Dy. District Development Officer was not the competent officer to conduct the proceedings. It is pertinent that the learned District Court passed judgment and order dated 17.2.93 in R.C.A. No. 1/93 allowing the appeal and setting aside the eviction order passed by the Dy. District Development Officer, by relying on notification produced by the respondents holding, inter alia, that the Dy. District Development Officer was not the competent officer but as per the said notification it would be the Deputy Collector who would be the competent officer for the purpose in question. The learned Trial Court, upon forming the said opinion and upon arriving at the said conclusion, on the basis of the notification produced by the respondents, allowed the appeal and quashed the eviction order passed by the Dy. District Development Officer.
34. The petitioner Panchayat, upon having noticed the said error and upon having acquired knowledge about the subsequent notification which was published in the Gazette on 23.4.1987, approached the learned Trial Court by way of Review Application stating, inter alia, that there was error apparent on the face of the order dated 17.2.1993 inasmuch as it was passed by relying upon notification which was neither valid and relevant nor applicable and in fact it is the notification dated 2.4.1987 which would be applicable to the facts of the case. The petitioner has placed the said notification dated 2.4.87 on record and Clause 4 of the said notification reads thus -
Sr. Officers Categories of public
No. premises
1 to 3. --------- -----------
4. The Deputy District Development Premises belonging to or
Officer (Revenue) of each of taken on lease by or on
the District Panchayat or in the behalf of the Panchayat.
absence of Deputy District Deve-
lopment Officer (Revenue) in a
district Panchayat, any Deputy
District Development Officer of
such District Panchayat.
The said Clause supports the petitioner Panchayat's claim and their submission that Dy. District Development Officer was the competent officer and the petitioner appears to be right on this count inasmuch as the said notification provides that in respect of the premises belonging to or taken on lease by/or on behalf of Panchayat, the Dy. District Development Officer would be the competent officer for the purpose of public premises for the purpose of entertaining the proceedings for eviction of public premises. The provisions in the Notification dated 2.4.1987 are clear and as per the said notification, the Dy. District Development Officer is the competent officer and that therefore the petitioner is right in contending that respondent No. 1 was neither right nor justified in claiming that Dy. Collector would be the competent authority and/or the order passed by the Dy. District Development Officer was a nullity for want of authority. The petitioner has, in this regard, also relied on the order dated 31.1.92 passed by this Court in Special Civil Application No. 2263/1992 wherein, after recording the contention of present respondent No. 1 (since present petitioner No. 1 was the petitioner in the said petition) to the effect that;
In this petition, the petitioner has raised the objection that D.D.O. is not the competent authority because the premises is not belonging to or not leased by or on behalf of the Panchayat. The respondent Panchayat was merely the allottee of the said bungalow, and it really belongs to P.W.D. and, therefore, it cannot be said to be belonging to or leased by the Panchayat and, therefore, competent authority would be Deputy Collector and not the Dy. D.D.O. and as the order is passed by the Dy.D.D.O., it was nullity. This Court [Coram: Hon'ble Mr. Justice B.S. Kapadia, as His Lordship then was] observed as follows;
It may be stated that the allotment order is passed by the Panchayat and, therefore, there is no question of challenging the vesting in the Panchayat by the present petitioner. He is estopped from challenging the same, particularly when deceased J.B. Vagh was inducted in the premises as per the resolution passed by the Panchayat which is referred to herein before. When that is so, the Dy. D.D.O. is competent officer.
Therefore, there is no substance in this contention.
35. The petitioner, relying on the said order, contended that even this Court has, earlier, concluded that the Dy. D.D.O. is the competent officer.
36. The earlier mentioned contradictions in the versions of respondent No. 1 and respondent No. 2 with regard to the premises in question and the entry of respondent No. 1 therein are striking and relevant to note. It is pertinent that, on one hand the respondent No. 2 contended that the respondent No. 1 was staying with them [i.e., with said Mr. Vagh and the respondent No. 2 and their son] in the premises in question right from beginning whereas on the other hand the respondent No. 1 claimed that he was inducted in the premises by Mr. Vagh as part of an arrangement between him and Mr. Vagh since Mr. Vagh and his family were not staying and/or intending to stay in the premises in question and that even the amount of rent was agreed upon between him (i.e. respondent No. 1 and said Mr. Vagh) to which the officers of the petitioner Panchayat were party and that he had paid even certain amount towards rent. The said two versions are quite opposite to one another and make it obvious that they are unworthy of consideration. As noted earlier, the respondent No. 1 had not produced any material, much less cogent evidence, to substantiate the said allegation and claims. On the basis of such allegations and unsubstantiated claims, the respondent No. 1 contended that he became a tenant of the Government since according to him the premises belonged to Government and not the Panchayat. In other words, the respondent No. 1, on the basis of such allegations and claims, claimed tenancy rights. The said claim and contention is without merits. The respondent No. 1 has advanced the claim of tenancy right without even establishing, with aid of cogent material, before the authority or the learned District Court, that he was a tenant. The foundation, in form of cogent evidence, for urging such a contention has not been laid or established before the authority or the Court. It is pertinent that no evidence to support such allegations was available on record before the Dy. District Development Officer or the learned District Court.
37. Under the circumstances, the said contention and allegations are not devoid of merits and not worthy of consideration and deserve to be rejected. A contention based on mixture of legal and factual submissions cannot be urged without the foundation of cogent and legally sustainable evidence.
38. In any case, the learned District Court has not passed the decree on the said premise but has passed the decree on the basis of the notification which was produced before it. Therefore also, the said contention and allegation are of no relevance.
39. In view of the submission of respondent No. 2, who has also prayed that she may be permitted to continue to occupy the premises and she was ready to pay the rent as may be fixed, and also in view of the fact that the premises in question vests and belongs to the Panchayat, the said allegation and contention of respondent No. 1 has no substance.
40. As discussed above, the respondents are in unauthorised occupation of the premises in question and even if it is assumed that the respondent No. 1 was, at any point of time, in authorised occupation as an heir of said Mr. Vagh, then also the 'authority' had come to an end upon the sad demise of said Mr. Vagh and after the death of said Mr. Vagh the occupancy of the premises in question by the respondents became 'unauthorised occupancy'. Resultantly, the eviction order passed by the Dy. District Development Officer is just, correct and legal. In view of the notification dated 2.4.1987, the Dy. District Development Officer was competent officer and had the authority to pass the eviction order. Under the circumstances, the learned District Court was not right or justified in setting aside the said eviction order. The judgment and order dated 17.2.1993 passed by the learned District Court, therefore, deserves to be set aside and is accordingly set aside. Since the judgment and order dated 17.2.1993 is set aside, the subsequent order dated 6.5.93 in Review Application No. 1/1993 would also be of no relevance.
41. In light of the aforesaid discussion and in view of the facts and circumstances of the present case and in light of the notification dated 2.4.1987 read with the provisions under the Act, the petition is allowed. The impugned orders are set aside and the order passed by the District Development Officer is restored. Rule made absolute. No order as to costs.