Gujarat High Court
Hiralal Bhagvandas Patel vs Agriculture Produce Market, Siddhpur on 14 June, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/540/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 540 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 541 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 542 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 544 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 546 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 547 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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HIRALAL BHAGVANDAS PATEL
Versus
AGRICULTURE PRODUCE MARKET, SIDDHPUR & 1 other(s)
================================================================
Appearance:
MR PY DIVYESHVAR(2482) for the Petitioner(s) No. 1 in (SCA
Nos.540/2018, 542/2018, 544/2018 and 546/2018)
MR. AJAY S. JAGIRDAR, for the Petitioners(s) No.1 in (SCA Nos.541/2018
and 547/2018)
MR DIPEN DESAI(2481) for the Respondent(s) No. 1
MR. MEET THAKKAR, AGP (SCA Nos.540/2018 and 541/2018) for No.2
MS. VRUNDA SHAH, AGP (SCA Nos.542/2018 and 544/2018) for No.2
MR, DHAWAN JAYSWAL, AGP (SCA No.546/2018) for No.2
MS. ASHMITA PATEL, AGP (SCA No.547/2018) for No.2
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C/SCA/540/2018 JUDGMENT
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 14/06/2019
COMMON ORAL JUDGMENT
[1] This group of petitions is filed under Article 226 of the Constitution of India against the decision of the District Court, Patan in Regular Civil Appeals filed by the petitioners. By the impugned order in the Regular Civil Appeals, the District court, Patan had confirmed the order passed by the competent officer in the applications pertaining to eviction of public premises belonging to respondent No.1-Agriculture Produce Market Committee, Siddhpur (for short APMC").
[2] Considering the commonality of the subject matter and identical issue raised in these group of petitions, all these petitions are taken up for joint hearing and final disposal with the consent of both the sides. The facts are extracted from the lead matter i.e. Special Civil Application No.540 of 2018.
[3] The petitioner is occupying a shop in the market yard of the respondent-APMC by way of general body Resolution No.5 of 2001 and was put up construction on the area allotted to him at his own expenditure. An open space above shop Nos.4, 5 and 6 which was completely vacant and unused was permitted to be occupied by the respondent-APMC on condition of non-refundable registration fees of Rs.80,000/- to be paid to the respondent-APMC and thereafter, payment of rent of Rs.100/- plus all taxes and cess payable to the respondent- APMC. The petitioner has put up a construction on the space allotted to first floor of the market yard and is now carrying out his private business.
Page 2 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019C/SCA/540/2018 JUDGMENT [4] It is submitted that the petitioner has complied with the
terms and conditions under which the petitioner was permitted to occupy this premises and also made all the necessary payments.
[5] It is submitted with the change in the body, the petitioner is victimized as the present body was opposed to all the decisions taken by the previous body and in that direction, notice dated 16.04.2004 was issued stating that the committee which has passed the resolution in favour of the petitioner has been superseded and administrator is appointed. The petitioner had responded to notice by pointing out that the petitioner was permitted to occupy the premises after the resolution of the general body. The petitioner has incurred heavy expenditure in putting up the construction at his cost and the petitioner has also made payment of required amount to respondent-APMC and has never defaulted in any manner. Therefore, the action under the resolution needs to be distrusted.
[6] Learned advocates appearing for the petitioners submit that the impugned order passed by the competent authority is not in conformity with the provisions of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1973 (for short "Public Premises Eviction Act"). It is submitted that the action against the petitioners is instituted directly under Section 5 and though steps are required to be taken under Section 4 before taking any action under Section 5, however, in the present case, no such steps under Section 4 have been taken so as to justify the action under Section 5 and therefore, the action of the competent authority from inception is bad in law.
Page 3 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019C/SCA/540/2018 JUDGMENT [6.1] Learned advocate for the petitioners has drawn attention of this Court to the resolution No.5 of meeting dated 31.03.2001 under which the APMC had resolved to give on rent the space of 800 Sq.Feet above shop Nos.4, 5 and 6 and residential quarter of the watchman. He also draws attention of the Court to the necessary documents executed and the fact that the petitioners had continued to comply with the terms and conditions of the rent agreement including necessary payment to be made.
[6.2] It is submitted that the construction on the premises was as per the plan which was sanctioned in the name of the respondent-APMC. It is strongly contended that as the petitioners have occupied the premises under a resolution and though no requirement of Section 4(1)(a) are in existence, the petitioners cannot be termed as unauthorized occupants at all.
[7] As against this, learned advocate appearing for the respondent-APMC has opposed the petition by contending that the allotment made at large scale of the space of the respondent-APMC by the then body was not in conformity the provisions of the Agriculture Produce Markets Act, 1963 as the act requires dealing with the APMC property by way of public auction so that the interest of the APMC is protected. However, by adopting unfair means, the then body of the respondent-APMC had made allotment on extraneous considerations. It is on account of such irregularities that the State was forced to supersede the body of the respondent- APMC and appoint administrator. Thereafter, resolution under which the allotment was made to the petitioners was also ordered to be cancelled. All these actions namely cancellation Page 4 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019 C/SCA/540/2018 JUDGMENT of resolution as well as superseding of the market committee were subject matter of challenge even before this Court and this Court has also made remarks with regards to illegal functioning of then market committee especially referring to the allotment of space/premises made to the likes of the petitioners and considering the same to be one of the valid grounds to justify supersession. It is submitted that the necessary fallout of the decision of the High Court was to rectify the illegal doings of the committee and hence, the administrator was obliged to initiate action permissible under law for Gujarat premises eviction and hence, application was filed under Section 5, but the petitioners were issued a notice dated 12.07.2012 and the reference of which is also found in the impugned order by the competent authority. Therefore, it cannot be said that the action against the petitioners is without the statutory notice. He also today produced one such notice in prescribed from 'A' as per Rule 3 addressed to one of the petitioners. He submitted that such notice is a notice sufficient as contemplated under the Act.
[8] The Court has taken into consideration the rival submissions and documents placed on record. The petitioners are allotted different spaces and space above watchman quarter of the constructed premises of respondent-APMC, space allotted to the petitioner of Special Civil Application No.540 of 2018 is admeasuring 800 Sq.Mtrs. As the allotment is made to the petitioners vide different resolutions, it appears from the pleadings that such allotment was made without any public auction and therefore, is against the provisions governing the functioning of APMC. The State Government therefore, considering the illegalities of the body of the APMC Page 5 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019 C/SCA/540/2018 JUDGMENT including the illegalities in allotment of space like to the petitioners, vide order dated 26.09.2003, supersede the APMC in exercise of powers under Section 46 of the Act. in the order, the ground mentioned is as under:-
"Market Committee did not publish public notice, did not follow tender method, put up public notice on notice board or publish advertisement in news paper having wide spread and did not follow common work methods as stipulated in circulars of the Director, Agriculture Bazaar and Rural Economy dated 27/11/1999, 01/02/2000 and 17/04/2000 during allotment of shops no.4, 5, 6, 26, watchman's room, place for cattle cage, three locations of vegetable market, place adjacent to plot no.44/45 while giving them on lease. Moreover, valuable shops have been allotted at nominal rent to organizations, in which present members of the committee and former members are existing/former members and which were transferred to private parties.
M/s. Hirabhai B. Patel & Co. was allotted open area on terrace by fixing Rs.80,000/- as non refundable deposit and Rs.100/- monthly rent in the meeting of committee held on 31st March, 2001. The said party submitted application to Market Committee on 3rd March, 2001. Similarly, Patel Parshottamdas Shankarlal was allotted the place by fixing Rs.50,000/- as non-refundable deposit and Rs.100/- monthly rent by passing resolution no.6 in the meeting dated 31/03/2001. Similarly, other parties namely M/s. Shambhuram Karsandas Co., Jamatmal Asumal, Manilal Harpaldas, Amratji Kunvarji and advocate Shri Rangvala mentioned in issue no.1 of this show cause notice were allotted places. The surprising fact is that the Market Committee has not mentioned in its reply as to how many rupees were decided as premium or rent for allotment of the said place in the case of M/s Shambhuram Karsandas. It has been stated that out of the said allotment, some have been cancelled. Thus, it appears that the Market Committee has carried out the allotment of these properties capriciously. The Market Committee stated in its defense that the said properties were about 40 years old construction, and there were cracks in terrace, water was leaking and therefore, the Market Committee would have incurred expenditure of repairing. The Market committee has not declared any such facts in the resolutions passed in connection with the said allotments. Therefore, the said defence of the Market Committee appears to be "after Page 6 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019 C/SCA/540/2018 JUDGMENT thought". No public notice was published regarding the allotments. On the contrary, the Market Committee admits in its reply that on receiving applications from the applicants, aforesaid allotments were carried out. It is stated that the Market Committee has concocted prices as per market rates. But, when no public notice has been published ...........
[9] When this action was challenged before this Court, the Court also upheld the action of supersession and while doing so has observed against the then body about its conduct of making allotment without holding auction or mode recognized under the law. The different resolutions dated 31.03.2001, 22.09.2001, 16.11.2002 and 24.03.2003 were thereafter, cancelled by resolution dated 04.12.2003 and such action of cancelling the previous resolutions does not appear to be challenged by the petitioners. The resolution not only cancels the previous resolutions, but also resolves to recover the possession of the premises which are in occupation of the petitioners.
[10] Examining the contention of the petitioners of the action not being in conformity with the provisions of Public Premises Eviction Act which is raised on the two grounds that the petitioners not being unauthorized occupants and that no notice is issued to initiate proceedings under the Public Premises Eviction Act. For examining this contention, it is necessary to record the relevant provisions of the Act. Section 2(f) defines "Public Premises" to mean 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 municipal corporation, panchayat, corporation, university, public trust etc. There does not appear to be any dispute that the premises in question Page 7 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019 C/SCA/540/2018 JUDGMENT would fall in the definition of "Public Premises" to attract the provisions of Public Premises Eviction Act. To examine whether the occupation is unauthorised or not, Section 2(h) defines "unauthorised occupation" 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.
[11] This Court in the case of Mangrol Taluka Panchayat v/s. Ranabhai @ Gagubhai Gigabhai and others, reported in 2008 (1) GLH 791, in para-23 and 24 held as under:-
"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, Page 8 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019 C/SCA/540/2018 JUDGMENT resignation or the competent officer cancelling the authority to occupy the premises. The list is only illustrative and not exhaustive. Hence, the authority to occupy the public premises may come to an end for diverse reasons and as soon as the authority gets determined, then immediately the occupation of the public premises would turn into "unauthorised occupation".
[12] Considering the aforesaid, it can be said that the petitioners who claimed to be occupation under different resolutions, their occupation can be termed to be authorised occupation till the life of the resolution. Once such resolution came to be cancelled and that too based on the sound findings of the State Government as well as this Court, continuing occupation of the petitioners needs to be treated as unauthorised. Admittedly, there is no challenge to the resolution by the respondent-APMC, whereby the resolution of allotment was canclled.
[13] Considering the submissions of non-compliance of Section 4 of the Public Premises Eviction Act, the Court observes that Section 4 provides for the satisfaction of the competent authority to consider any occupation as unauthorised. Section 4(1)(a) contemplates certain contingencies which would render the occupation as unauthorised. Submission of learned advocate for the petitioners that no such contingencies as contemplated in sub- section(a) has arisen in this case to treat the petitioners as unauthorised occupiers would not remain significance in view of Section 4(1)(c) which reads if the competent officer is satisfied that any person is in unauthorised occupation of any public premises, he can proceed against such person. The competent authority before itself had sufficient material to Page 9 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019 C/SCA/540/2018 JUDGMENT satisfy itself about the unauthorised nature of the occupation and was therefore, justified in issuing notice dated 12.07.2012 in proforma form 'A' as per Rule 3 of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1973. Copy of which is made available for Court's perusal. The language of this notice needs to reproduced hereunder:-
"No.Eviction/App. No.6/05/2012 Prant Office, Siddhpur Date: 12/07/2012 Form - A (See Rule-3) To, (1) Patel Parshottambhai Madhavlal C/o. R.P. Agro Centre, Market Yard, Siddhpur, Residing at: Ayodhyanagar Society, Taluka: Siddhpur, District: Patan I, the undersigned, have reason to believe in connection to the premises described in the schedule annexed herewith that, (1) The Agricultural Produce Market Committee, Siddhpur has allotted one room, known as Gurkha Quarters situated behind Plot No.1, Shop No.6 of the market yard to you on receipt of deposit of Rs.5000/-
and at monthly rental of Rs.125/- by resolution no.19 dated 22/09/2001.
As per Section-10 (2) of the Gujarat Agriculture Produce Market Act, 1963, the government body shall transfer any property by rent/lease or sale after publishing notice, holding an auction and in such a way that every beneficiary can get opportunity and as per the rules of the government. All such transfers of property undertaken by the market committee without following due process by rent / lease / license or any other way, shall be null and void. The property allotted to you, is allotted by the Agricultural Produce Market Committee without following such process and you have obtained the said property illegally and misusing influences. Therefore, the government has superseded the market committee and thereafter, the market committee has revoked the said resolution for rent and hence, the occupancy is illegal.
(2) You are holding unauthorised occupancy of the property of Agricultural Produce Market Committee, which is mentioned in the schedule annexed Page 10 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019 C/SCA/540/2018 JUDGMENT herewith.
(3) The property mentioned in the schedule annexed herewith of the Agricultural Produce Market Committee, Siddhpur is required for the objectives of the government or its establishment - the occupier Agricultural Produce Market Committee, Siddhpur.
In exercise of the power conferred by SubSection (1) of Section (5) of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972, it has been decided to pass an order against you, having unauthorized occupancy of the entire said premises or part thereof, to declare the said premises as evicted, within thirty days from the date of pronouncement of the proposed order (referred hereinafter as "proposed order").
Therefore, as per the provisions of the said Sub- Section (1) of Section (4), you are hereby directed to state in writing, within 10 days from the date of service of this notice, the reasons as to why the proposed order for eviction of the said premises may not be passed. If you yourself or your Advocate/Attorney/ Pleader, intend to state anything, you may remain present in my office at 13-00 Hours on 25/7/2012. You may produce the evidence you may deem fit in support of your reasons.
"Schedule (Description of the premises) Number of residential unit:
One room, known as Gurkha Quarters, situated behind Plot No. 1, Shop No. 6 of the market yard of Agriculture Produce Market Committee, Siddhapur."
Shop Number: --
Taluka: Siddhpur
District: Patan
Sd/- Illegible
Prant Officer, Siddhpur
[14] The language of the notice clearly stipulates notice under Section 4(1) as contemplated by the Act. The Court is therefore, of the opinion that there is no procedural lapse insofar as issuing the notice under the Act is concerned.
[15] The Court has thereafter, perused the order passed by the competent authority. The order of the competent authority records the statutory notice being served. It also records the Page 11 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019 C/SCA/540/2018 JUDGMENT circumstances under which the resolution granting the permission to occupy was cancelled and the contention of the petitioners which in the opinion of this court was restricted to the petitioners occupying under the resolution and the rent agreement which the petitioners had never breached and that action against the petitioners was politically motivated. No such contention was raised with regards to non-compliance of any statutory requirement which now the petitioners seek to contend was raised at that stage. The competent authority also records failure on the part of the petitioners to produce any compliance sanctioned by the local body or any evidence with regards to their incurring expenditure for putting up the construction at their cost. Therefore, in absence of any procedure having followed by the then body of APMC and the allotment being in violation of Section 10(2) of the APMC Act, the competent authority accepted the stand of the being unauthorised occupants and directed vacating of the premises. The Court has also examined the decision in appeal by the District Court, confirming the order of the competent authority. The appellate authority also confirmed that the statutory requirements have been followed with and that the findings of the competent authority that the petitioners being unauthorised occupants, are confirmed.
[16] In view of the aforesaid discussions, the Court does not find any reason to interfere with the concurrent findings given by the competent authority and the District Court in its appeal jurisdiction. The petitions therefore, must fail and are hereby dismissed. Interim relief, if any, stands vacated. No orders as to costs.Page 12 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019
C/SCA/540/2018 JUDGMENT [17] At this stage, learned advocate for the petitioner prays for extension of the interim order granted by order dated 12.01.2018. Considering the facts and circumstance of the case, the interim order granted vide order dated 12.01.2018 is extended for a period of three weeks, from today, (A.Y. KOGJE, J) SIDDHARTH Page 13 of 13 Downloaded on : Wed Jul 03 11:03:01 IST 2019