Gujarat High Court
Board Of Trustees Of Port Of Kandla ... vs Western Trading Co on 23 February, 2023
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22942 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 4236 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 4237 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 23022 of 2005
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 23022 of 2005
With
R/SPECIAL CIVIL APPLICATION NO. 23023 of 2005
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 23023 of 2005
With
R/SPECIAL CIVIL APPLICATION NO. 23024 of 2005
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 23024 of 2005
With
R/SPECIAL CIVIL APPLICATION NO. 23025 of 2005
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 23025 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BOARD OF TRUSTEES OF PORT OF KANDLA KANDLA PORT TRUST & 3
other(s)
Versus
Page 1 of 76
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C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
WESTERN TRADING CO.
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Appearance:
MR ALPESH RAJPURIYA(1464) for the Petitioner(s) No. 1,2,3,4
MR KM PATEL(629) for the Petitioner(s) No. 1,2,3,4
MR HARSHAD J SHAH(752) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MS. JUSTICE
SONIA GOKANI
Date : 23/02/2023
CAV JUDGMENT
1 These are the group of petitions preferred under Articles 226 and 227 of the Constitution of India challenging the judgement and decree which are identical questions of facts and law and are, therefore, being decided by this common judgement and order.
2 The facts are drawn from Special Civil Application No. 22942 of 2006 as the set of petitions has been preferred by the Board of Trustees of Port of Kandla, whereas the respondent has preferred Special Civil Application No. 4237 of 2017 and has sought the relief of regularization of breach by preferring two petitions being Special Civil Application No. 4237 of 2017 and Special Civil Page 2 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 Application No. 4236 of 2017 and various Civil Applications. The facts, therefore, are drawn from Special Civil Application No. 4237 of 2017. 3 Challenge is to the judgement, order and decree dated 06.02.2006 passed by learned Joint District Judge, Gandhidham-Kachchh in Regular Civil Appeal No.56 of 2005, as the Appellate Court, under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as " the Act'), by which the Court has allowed the appeal filed by the respondent and quashed and set aside the order passed by the Estate Officer, Kandla Port Trust (hereinafter referred to as "the KPT') on dated 19.12.2005 in Eviction Case No.36 of 1997 under Section 5(1) of the Act.
4 The brief facts of the present case are as under:
4.1 Petitioner No.1 is the Board constituted by the Central Government under Section 3 of the Major Port Trust Act, 1963 and is a body corporate in Page 3 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 terms of Section 5 of the said Act. Petitioner nos.2 to 4 are its officers. Petitioner no.3 is the Estate Officer appointed under the Act. For the development of the township of Gandhidham in the registration sub-district of Anjar, Dist.: Kachchh, petitioner no.1 Board was granted long terms lease of plots for business purpose, with the approval of the Union of India. The plot in question is being Plot No.92 in Sector-8 was allotted to M/s. Batliboi and Co.Pvt. Ltd. originally for a period of 99 years.
The lease deed executed between petitioner no.1 and M/s. Batliboi and Co.Pvt. Ltd. was dated 21.02.1967. The condition No.2 (3) of the said lease deed, obliged the lessee to complete the construction on the plot within 36 calendar months from the date of allotment, and as per the condition No.2(7) of the said lease deed, the premises leased were to be used only for business purpose and lessee was under an obligation not to do any act which may cause annoyance, disturbance or Page 4 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 nuisance either to the lessor or its tenants in the township of Gandhidham.
4.2 It is the say of the petitioner that the original allottee M/s. Batliboi and Co.Pvt.Ltd., on obtaining prior permission from petitioner executed transfer deed in favour of the respondent on 18.10.1988, whereby, it transferred its rights and interests in the leased plot in favour of the respondent. 4.3 The transfer deed was also executed between the original lessee and the respondent on 18.10.1988 which was registered with the office of the Sub Registrar, Gandhidham on 18.10.1988, accordingly, the plot was mutated in the name of the respondent. It is the say of the petitioner that the lease deed provided for commencement and completion of construction on the plot within a period of 36 months and yet no construction was carried out. Not only that the plot was used by the respondent for dumping food-grains such as wheat, rice, soyabean extraction, etc. openly and that Page 5 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 caused nuisance of rats, insects, flies, birds, cats, etc. endangering the health and sanitation of the people residing in the area. Moreover, storing of commodities in open during monsoon would have also caused decay of food-grains aggravating the nuisance. Therefore, a notice came to be issued upon the respondent on 11.03.1996 calling upon it to remedy the breach by completing the construction on the plot within 30 days and removing the commodities dumped/stored in the open space by causing nuisance. However, nothing was done by the respondent pursuant to the said notice.
4.4 One Shri Vasant V. Ambeskar filed a writ petition before this Court being Special Civil Application No. 3544 of 1996 against the petitioner- Board and other authorities including the State Government, Municipality and GPCB contending that some of the plot holders are storing commodities in open space and thereby causing public nuisance. The Page 6 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 Court issued the notice to the petitioner Board and after referring to the notice issued by the petitioner Board to the concerned plot holders not to store food-grains in open space and to complete construction and also noticing that the plot holders did not do anything even after the issuance of notice, the Court directed the concerned plot holders vide its order dated 25.02.1997 which includes the present respondent not to use the plots allotted to them without previous permission of this Court. The Court further directed the petitioner to ensure that action is taken at the earliest for the beach committed.
4.5 The petitioner cancelled the lease given in favour of the respondent and as per the order dated 29.03.1997 read with corrigendum dated 03.04.1997, the respondent was directed to hand over peaceful and vacant possession of the plot on or before 10.05.1997.
4.6 On determination of the lease and cancellation of Page 7 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 allotment of plot, the respondent had no right to hold on the possession of the plot. His occupation of the plot, thus, according to the petitioner in post 10.05.1997 period was unauthorized occupation since the lease was determined for breach of covenants of the lease deed. However, the respondent since did not hand over the possession by 10.05.1997, he was issued the notice on 10.07.1997 by the Estate Officer under Section 4 of the Act to show cause as to why he should not be evicted in the manner provided under the Act. Some of the plot holders approached with Civil Application No.3836 of 1997, 3838 of 1997, 4501 of 1997 and 4534 of 1997 before this Court. This Court on 19.01.1998 disposed of the writ petition by directing the concerned lessees to approach the Chairman of KPT with application for reviewing the earlier orders cancelling the lease. A representation for review/ modification of the earlier order cancelling the lease, however, was not accepted Page 8 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 and the respondent was called upon to hand over the vacant and peaceful possession of the plot to the petitioner.
4.7 The Estate Officer gave opportunities of hearing to the respondents and on 29.01.2004 requested to attend the proceedings. The hearing took place on 09.08.2005 before the Estate officer, wherein, the respondent admitted that he was an unauthorized occupant and was not using the plot for the purpose for which it was allotted. The Estate Officer, therefore, on 19.12.2005 passed an order under Section 5(1) of the Act and directed the respondent and all others in occupation of the plot to vacate the said premises within 15 days. It was further directed to the respondents to comply with the directions. The respondent and all those in occupation of the plots be evicted by using force as may be necessary.
4.8 The respondent filed an appeal under Section 9 of the Act before the learned District Judge, Page 9 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 Gandhidham-Kachchh against the order dated 19.12.2005 before the Appellate Court. 4.9 It is the grievance on the part of the petitioner that the appeal was heard by the learned Additional District Judge, who allowed the appeal by judgement and order dated 06.02.2006 and order of Estate officer directing eviction of the respondent from Plot No.92, Section-8 at Gandhidham as unauthorized occupant has been quashed and set aside.
5 The petitioner, therefore, aggrieved that Appellate Court had exceeded its jurisdiction as to the legality and validity of the termination of lease in favour of the respondent and various grounds have been set-out to urge that the Appellate Court has committed serious error, and therefore, the order deserves to be set aside, with the following prayers:
"(A) Your Lordships be pleased to issue a writ of certiorari and / or any other appropriate writ, order or direction in the like nature quashing and setting aside the judgment and order dated Page 10 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
06.02.2006 passed by the learned Joint District Judge, Gandhidham-Kachchh in Regular Civil Appeal No. 56/06 at Annexure-A. (B) Pending hearing and final disposal of the petition, be pleased to stay operation, implementation and effect of the judgment and order dated 06.02.2006 passed by the learned Joint District Judge, Gandhidham-Kachchh in Regular Civil Appeal No. 56/06 at Annexure-A." 6 In Special Civil Application No. 4237 of 2017, the respondent M/s. Western Trading Company, setting out the very facts in detail, seeks the direction to accept their representations by the petitioners and to regularize the case of breach committed by the lessee with the following prayers:
" 10. For the reasons stated hereinabove and such other as may be advanced at the time fo hearing of this petition, the petitioner above named most respectfully prays that this Hon'ble Court may:
A. be pleased to admit and allow
present petition.
B. be pleased to issue a writ of
mandamus or a writ in the nature of
mandamus or any other appropriate writ, order or direction to direct the respondent/s to accept the representation of the petitioner dated 25/2/2016 and to regularise the case of breach committed by the petitioner-lessee in Plot no.92 in Section No.8 in Gandhidham by imposing penalty, etc. on the ground of parity. C. be pleased to issue an appropriate writ, Page 11 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 order or direction from this Hon'ble Court to declare that the action of the respondents to invoke the provision of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 ["the Act" for short] in the case of breach committed by the petitioner-lessee in Plot no.92 in Sector No.8 in Gadhidham against the guidelines issued by the Central Government vide resolution no.21013/1/2000 dated 30/5/2002 published in the Gazette of India dated 8/6/2002 and also against the decision of the Hon'ble Supreme Court of India in the case of Suhas H.Pophale vs. Oriental Insurance Co.Ltd. Reported in (2014) 4 SCC 657.
D. be pleased to issue an appropriate writ order or direction to declare that the action of the respondents to treat the petitioner differently from the other plot holders is bad in law.
E. pending admission, hearing and final disposal of present petition, be pleased to regularise the case of breach committed by the petitioner-lessee in Plot no.92 in Section No.8 in Gandhidham by imposing penalty, etc. F. be pleased to pass such other and further orders which may deem fit in the interest of justice in favour of the petitioner."
7 Additional affidavit on behalf of the Manager of the respondent is in relation to the new development that took place, after filing of the petition the Board of Trustees of KPT and after filing of the affidavit-in reply. It is urged that in similar cases, the KPT has Page 12 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 regularized the breaches of non-construction committed by the lessee by imposing penalty. The circular dated 11.02.2004 permitted the regularization of the breach committed by the lessee by charging the penalty. In similar cases, the petitioner KPT, regularized the breach of the said nature.
8 The present respondent during the pendency of the said petition made a representation to the KPT vide communication dated 11.11.2011. The representation made by the respondent is rejected and it was decided not to revoke and/or modify the cancellation order dated 29.03.2007. It is the say of the respondent, that the petitioner has also regularized the breach vide notice dated 03.04.2012 for non-construction and non- completion of construction by one of its lessees. It is therefore, urged on the ground of uniformity in policy and on the ground of parity, the petitioners ought to have considered the case of the Page 13 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 respondent for regularization of breach. 9 This Court has heard at length the learned advocates appearing for the KPT along the line of the memo of the petition. Learned Senior Advocate Mr. K.M. Patel appearing with learned advocate Mr. Alpesh Rajpuriya has urged that, transfer has been effected, of course, with the consent of the petitioner-KPT from M/s.Batliboi and Co.Pvt. Ltd. to the M/s. Western Trading Co-present respondent firm, registered under the provisions of the Indian Partnership Act. There were vital conditions while permitting such transfer that grant of this fresh lease would not waive breach of any covenant on the part of the lessee. What was necessary was to construct in 36 months and not to cause nuisance. It is his say that lease once determined in eviction proceedings, the legality cannot be questioned. Sections 106 and 111 of the Transfer of Property Act have been to urge that no notice has been served and there is no illegal Page 14 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 occupation of the respondent. According to the learned Senior Advocate, the premises are public premises under Sections 4 and 5 of the eviction proceedings at the hands of the Estate officer is sufficient and when he is of the opinion that anyone has unauthorizedly occupied it, he is empowered to pass an order of eviction. A person who feels aggrieved can approach an Appellate Court which is in the instant case the District Judge. It is his say that the Court has committed serious error, as in absence of any contract or usage of contract, when it has chosen not to uphold the order of the Estate Officer, six months' notice is not contemplated. It is for the agricultural purpose, the six months' notice is contemplated. The premise was given for industrial purpose, and therefore, what was necessary was one month notice. Once there is a determination of the lease, the only remedy available to the respondent is to file the Suit and challenge the same. The Court Page 15 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 ought not to have gone into all these aspects, once the lease is determined that the person is in unauthorized occupation. He has relied upon the following authorities in support of his submissions.
(a) Ashoka Marketing Ltd. and another vs.
Punjab National Bank and others,
(1990) 4 SCC 406.
(b) Sarup Singh Gupta vs. S. Jagdish Singh and
others, 2006 AIR SCW 1966.
(c) Shanti Prasad Devi and another vs.
Shankar Mahto and others, (2005) 5
SCC 543.
(d) Smt. Shalan Narayan Dappal & Ors. vs. The
Board of Trustees of the Port of
Bombay, AIR 2009(NOC 2439 (BOM.)
(e) New India Assurance company Ltd. vs. Nusli
Neville Wadia and another, (2008) 3 SCC
279.
(f) Cantonment Board and another vs. Church
of North India, (2012) 12 SCC 573.
10 Learned Senior Advocate Mr. Marshall with learned advocate Mr.Arpit Kapadia appearing for the respondent has urged that, it is a public premise, where, Chairman cannot act as a private person. In a hot haste to get it evicted, the actions have been taken. It is also to be seen that whether the breach is capable of being remedied. It is urged that, 21 years after the transfer of leasehold, the action has Page 16 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 been taken. It is the say of the learned counsel that the powers exercised are within a very few days in a hot haste, issuing a formal notice as a show cause notice. It is urged that on 09.04.1997 the lease was terminated within 20-21 days from the first order till the order of the Division Bench in Letters Patent Appeal, where the respondents were directed to complete the construction on the plot. He also questioned that whether for determining the lease, all that was needed to be done at the end of the authority has been done or not. If not, it is easy for the authority to determine the lease on a very trivial or flimsy grounds. In a time bound manner, a resort is contemplated, quite a few have breached, however, no action has been taken against them. It is also pointed out that, Mr. Ram Naik,the Member of Parliament, wrote to the Ministry, as many complaints received against the authority. There are guidelines issued which are forming part of the record floating these directions, Page 17 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 if any, action is taken, the same should not be permitted oblivious to two chances given by the High Court. He has urged that 36 months had been permitted for construction, there is no reasonableness in the same. The moment, reasonableness of time goes, the action must fail. The reasonable opportunity of correcting the breach has not been given. In totality his submissions are that the respondents have been treated unreasonably, three representations were made, which were decided almost verbatim and still rectified if opportunity is given. There is a clear discrimination in not considering the representations. There is no guideline that if lease is terminated/determined, it cannot be regularized. The alternative submission also is that, if the two parties are treated in dissimilar way, there is a need for the Court to intervene.
11 In rejoinder, learned Senior Advocate Mr. Patel urged that in acceptance that the respondent Page 18 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 would act, from 1988 to 1996, the petitioner did nothing, however, the respondent has also not done anything nor any construction made, 8 years is a long period. The first notice was given on 07.03.1996 and the 2nd notice on 22.04.1996, yet nothing was done. On 25.02.1997, this lease was terminated. Since from the conduct, it was quite apparent that respondents were not interested in remedying the breach. It is further his grievance that it is an excuse on the part of the respondent that the plot was used by another Company for storing the food-grains. It is unbelievable that without charging the rent, these plots would have been permitted to be used by another Company, there had been a non-action on the part of the respondent and its predecessors for 30 years and this conduct of the respondents has led the determination of the lease. The action, therefore, cannot be faulted. He further has urged that provisions of Public Premises Act must prevail over Page 19 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 the Rent Control Act and the question of regularization also would not arise unless lease terminated is set aside.
12 In sur-rejoinder, learned Senior Advocate Mr.Marshall has urged that there is nothing to indicate that there was a reasonable time given to the respondent. The position of law in quite well settled and for which, he has incorporated the following authorities;
(i) Jamshed Hormusji Wadia vs Board Of Trustees, Port Of Mumbai & another, (2004) 3 SCC 214.
(ii) Banatwala and company vs. Life Insurance Corporation of India and another, (2011) 13 SCC 446.
(iii) B. Sharma Rao H. Ganeshmal and Anr. vs Head Quarters Asst. And others, (1998) 9 SCC 577.
12.1 He has urged that, whether the person is unauthorized tenant or not, is to be decided by the Estate Officer, and once decided, the same has to be challenged in appeal before the Appellate Court/ Appellate Authority. The Civil Suit has been barred Page 20 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 as per the decision of the Apex Court and without availing opportunity, since the termination has been done and as in some other cases, the High Court has directed to consider the case sympathetically, the KPT's petitions are to be resigned to the page of history.
13 On thus hearing both the sides and before adverting to the facts, the law on the subject deserves to be discussed.
14 In case of Ashoka Marketing Ltd. and another v.
Punjab National Bank and others reported in (1990) 4 SCC 406, the common question that arose for consideration of the Apex Court in the appeal was whether a person who was inducted as a tenant in premises, which were public premises for the purpose of the Public Premises Act, and whose tenancy has expired or has been terminated, can be evicted from the said premises as being a person in unauthorized occupation of the premises under the provisions of the Public Premises Act and Page 21 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 whether such a person can invoke the protection of the Delhi Rent Control Act, 1958. In other words, the question was, whether the provisions of the Public Premises Act would override the provisions of the Rent Control Act in relation to premises which fall within the ambit of both the enactments. The Apex Court has held that, both are the Acts of the Parliament and fall under concurrent list and held that to determine as to which Act will apply, the statutory rule of constructions, viz. later law abrogates earlier contrary law will apply. Rule generalia specialibus non derogant will not apply, as both the Acts are special enactments. It held that having regard to the purpose, policy and legislative intent of the two special enactments also, the 1971 Act will prevail over the 1958 Act. The relevant paragraphs are read as under:
"16.In English law a corporation has been defined as "a body of persons or an office which is recognised by the law has having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in Page 22 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 question."
(See Halsbury's Laws of England, Fourth Edition, Volume 9, Para 1201). Generally speaking, corporations are of two kinds; corporation aggregate and corporation sole. A corporation aggregate has been described as an incorporated group of co-existing persons and a corporation sole as an incorporated series of successive persons, (Salmond on Jurisprudence, 12th Edition P 308. The distinctive feature of a corporation are that it has the capacity of continuous existence and succession, notwithstanding changes in its membership and it possesses the capacity of taking, holding and conveying property, entering into contracts. suing and being sued, and exercising such other powers and priviledges conferred on it by law of its creation just as a natural person may (See S.S. Dhanoa v. Municipal Corporation, Delhi & Ors., [1981] 3 SCR 864. Corporations aggregate may be public or private. A public corporation is a corporation formed for a public purpose e.g. local government authori- ties, and it is usually incorporated by a public general Act of Parliament. A private corporation is a corporation formed for profit e.g. a limited company, and it is usually incorporated under a statutory enactment. After the second world war there has been development of a new pattern of public corporations in England as an instrument of planning in the mixed economy. The general characteristics of such a public corporation is that it is normally created by a special statute; it has no shares and no shareholders either private or public, and its shareholder, in the symbolic sense, is the nation represent- ed through Government and Parliament; the responsibility of the public corporation is to the Government, represented by the competent Minister and through the Minister to Parliament; the administration of the public corporation is entirely in the hands of a board Page 23 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 which is appointed by the competent Minister; and it has the legal status of a corpo- rate body with independent legal personality. (See W. Fried- man:
The New Public Corporations and the Law [1947] 12 Mod. LR 234-236.) There is a similar growth of this type of public corporation in other countries.
This trend is also evident in our country since independence and a number of such public corporations have been constituted by Acts of Parliament.
17. The distinction between such a public corporation and a corporation generally known in law has been explained in the following observations of Denning L.J., as he then was:--
"The Transport Act, 1947, brings into being the British Transport Commission, which is a statutory corporation of a kind comparatively new to English law. It has many of the qualities which belong to corporations of other kinds to which we have been accustomed. It has, for instance, defined powers which it cannot exceed; and it is directed by a group of men whose duty it is to see that those powers are proper- ly used. It may own property, carry on business, borrow and lend money, just as any other corporation may do, so long as it keeps within the bounds which Parliament has set. But the significant difference in this corporation is that there are no shareholders to subscribe the capital or to have any voice in its affairs. The money which the Corporation needs is not raised by the issue of shares but by borrowings and its borrowing is not served by debentures; but is guaranteed by the Treasury. If it cannot repay, the loss falls on the Consolidated Fund of the United Kingdom; that is to say, on the taxpayer. There are no shareholders to elect the direc- tors or to fix their remuneration. There are no profits to be made or distributed."
(Tamfin v. Hannaford, [1950] 1 KB 18).
18. Reference has already been made to the Page 24 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 provisions of the Banks Nationalisation Act which show that the nationalised bank has been constituted as a distinct juristic person by the Act and it is owned by the Central Government. There are other provisions in the Banks Nationalisation Act which show that the general superintendence, direction and management of the affairs of the business of the bank is vested in a Board of Directors constituted by the Central Government and the Central Government has the power to remove a person from the membership of the Board of Directors (Section 7(2) & 7(3) and in the discharge of its functions the Bank is to be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Governor of the Reserve Bank, give (Section 8). This indicates that the nationalised bank has all the attributes of the new pattern of public corporation.
19. Merely because the expression 'body corporate' has-been used in relation to the nationalised banks in Section 3(4) of the Banks Nationalisation Act and the expression 'corpo- ration' has not been used, does not mean that the nationa- lised bank is not a corporation. The expression 'body corpo- rate' is used in legal parlance to mean a 'public or private corporation'.
27.There is no warrant for confining the scope of the definition of 'public premises' contained in Section 2(e) to premises used for residential purposes only and to excluded premises used for commercial purposes from its ambit. In Hari Singh v. Military Estate Officer, (Supra) a similar contention was advanced and it was argued that the expres- sion 'premises' in Public Premises Act would not apply to agricultural land. This Court rejected that contention with the observation:
"The word 'premises' is defined to mean any land. Any land will include agricultural land. There is Page 25 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 nothing in the Act to exclude the applicability of the Act to agricultural land."
28. We are also unable to hold that the inclusion of prem- ises used for commercial purposes within the ambit of the definition of 'public premises', would render the Public Premises Act as violative.of the right to equality guaran- teed under Article 14 of the Constitution or right to free- dom to carry on any occupation, trade or business guaranteed under Article 19(1)
(g) of the Constitution or the right to liberty guaranteed under Article 21 of the Constitution. It is difficult to appreciate how a person in unauthorised occupation of public premises used for commercial purposes, can invoke the Directive Principles under Article 39 and 41 of the Constitution. As indicated in the statement of Objects and Reasons the Public Premises Act has been enacted to provide for a speedy machinery for the eviction of unauthorised occupants of public premises. It serves a public purpose, viz. making available, for use, public premises after eviction of persons in authorised occupation. The need to provide speedy machinery for evic- tion of persons in unauthorised occupation cannot be con- fined to premises used for residential purposes. There is no reason to assume that such a need will not be there in respect of premises used for commercial purposes. No dis- tinction can, therefore, be made between premises used for residential purposes and premises used for commercial pur- poses in the matter of eviction of unauthorised occupants of public premises and the considerations which necessitate providing a speedy machinery for eviction of persons in unauthorised occupation of public premises apply equally to both the types of public premises. We are, therefore, unable to accept the contention of Shri Yogeshwer Prasad that the definition of public premises contained in Page 26 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 Section 2(e) of the Public Premises Act should be so construed as to exclude premises used for commercial purposes from its ambit.
41 As a result of this comparison it can be said that certain premises, viz. building or parts of buildings lying within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and in urban areas within the limits of the Municipal Corporation of Delhi, which belong to or are taken on lease by any of the companies or statutory bodies mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act and which are in occupation of a person who obtained possession of the said premises as a tenant and whose tenancy has expired or has been terminated but who is continuing in occupation of the same, would ex- facie fall within the purview of both the enactments. The question which, therefore, arises is whether the occupant of such premises can seek the protection available under the provisions of Rent Control Act and he can be evicted from the premises only in accordance with the said provisions and proceedings for eviction of such a person cannot be initiated under the provisions of the Public Premises Act.
55 The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Trnasfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the evic- tion of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. The Public premises Act makes provision for a speedy Page 27 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 machinery to secure eviction of unau- thorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent Court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil procedure, the Public Prem- ises Act confers the power to pass an order or eviction of an unauthorised occupant in a public premises on a designat- ed officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. In other words, both the enactments, namely, the Rent Con- trol Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein. Since, the Public premises Act is a special statute and not a general enactment the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act." 15 It is on the basis of the said decision, much emphasized that Public Premises Act would overrule the provisions of the other Act including the Transfer of Property Act, essentially with an intent to deal with the speedy recovery of possession of the premises of public nature. 16 In yet another case of Shanti Prasad Devi and Anr.
v. Shankar Mahto and Others reported in (2005)5 Page 28 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 SCC 543, wherein the Court has held and observed that, on expiry of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying 'assent' to the continuance of the lessee even after expiry of lease period. There being an agreement to the contrary in the form of renewal clauses in the lease deed, and neither express or implied "assent" of landlord having been given either in terms of the renewal clauses or otherwise, lessees could not be held to have been 'holding over' under Section 116 of the Transfer of Property Act. In other words, mere acceptance of rent by the lessor on expiry of the lease, in view of specific terms prescribed for the mode of renewal, cannot result in giving renewal of the lease and the doctrine of 'holding over' u/s. 116 of the Transfer of Property Act cannot be attracted. The Court has observed in para 17 and 18 as under:
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C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
"17. Section 116 of the Transfer of Property Act reads thus:-
"Effect of holding over. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Sec.106."[Emphasis supplied]
18. We fully agree with the High Court and the first appellate Court below that on expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying 'assent' to the continuance of the lessee even after expiry of lease period. To the legal notice seeking renewel of lease, the lessor gave no reply. The agreement of renewal contained in Cl.(7) read with Cl.(9) required fulfillment of two conditions; first the exercise of option of renewal by the lessee before the expiry of original period of lease and second, fixation of terms and conditions for the renewed period of lease by mutual consent and in absence thereof through the mediation of local Mukhia or Panchas of the village. The aforesaid renewal Clauses (7) &(9) in the agreement of lease clearly fell within the expression 'agreement to the contrary' used in Sec.116 of the Transfer of Property Act. Under the aforesaid clauses option to seek renewal was to be exercised before expiry of the lease and on specified conditions."
17 The Apex Court in the case of Sarup Singh Gupta Page 30 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 v. S. Jagdish Singh & Ors. reported in 2006 AIR SCW 1966 also while overruling the judgement of the Calcutta High Court AIR 1926 Cal 763, has held that Section 113 of the Transfer of Property Act leaves no room for doubt that in a given case, a notice given under Section 111, Clause (h) may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. The question whether such person had shown an intention to treat the lease as subsisting is essentially a question of fact. For reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative.
18 In case of New India Assurance Company Ltd. vs. Nusli Neville Wadia and Another B reported in (2008) 3 SCC 279, the Apex Court was dealing with Page 31 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 the respondents who are not protected tenants under the Maharashtra Rent Control Act. It discussed the public premises as defined under Section 2(e) to mean any premises belonging to, or taken on lease by any Corporation established by or under a Central Act and owned or controlled by the Central Government. The premise in question is a public premise. After discussing various provisions under the Public Premises Act, the Court also referred to the guidelines issued by the Central Government in the following manner:
"17. Section 3 of the Act provides for appointment of an Estate Officers. Sections 4 provides for issuance of a show cause notice in the following terms :-
Section 4 - Issue of notice to show cause against order of eviction -
(1) If the estate officer is of the opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall--
(a) specify the grounds on which the order of eviction is proposed to be made; and Page 32 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises,--
(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and
(ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.
(3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed whereupon the notice shall be deemed to have been duly given to all persons concerned."
18. Section 5 deals with the procedure for eviction of unauthorized occupants. It reads :-
Section 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 produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-
section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate 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.
Page 33 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 (2) If any person refused or fails to comply with the order of eviction on or before, the date specified in the said order or within fifteen days of its publication under sub- section (1) whichever is later, the estate officer or any other officer duly authorized by the estate 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."
19. Section 7 empowers the Estate Officer to require payment of rent or damages in respect of public premises by the person who is in unauthorized occupation thereof.
20. Section 9 provides for appeal from an order of the Estate Officer.
THE RULES;
21. Rules have been framed by the Central Government in exercise of its powers under Section 18 of the Act known as the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971. Rule 5, which is material for these appeals reads as under :-
"5. Holding of inquiries.
(1) Where any person on whom a notice or order under this Act has been served desires to be heard through his representative he should authorize such representative in writing (2) The estate officer shall record the summary of such evidence and any relevant documents filed before him shall form part of the records of the proceedings.
GUIDELINES
22. A tenant of a public premise although ordinarily does not get any protection from eviction from the tenanted premises under the provisions of the Maharashtra Rent Control Act, Page 34 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 1999, it is accepted that the action of the part of the landlord, which is a State within the meaning of Article 12 of the Constitution of India must in this behalf be fair and reasonable. In other words the action of the State in terms of the provisions of the Act should not be arbitrary, unreasonable or mala fide. With that end in view only, and for determining the legal effect arriving thereunder, the Central Government had, from time to time, issued several guidelines. The guidelines so issued are dated 14th January, 1992 ; 5th August, 1992 ; 7th July, 1993 ; 14th July, 1993 ; 23rd July, 1993; 9th June, 1998, 2nd September, 2002 and 23rd July, 2003. In terms of the said guidelines, however, a distinction is sought to be made between a tenant who is rich or industrialist etc. vis-a-vis a person who is poor and uses the tenanted premises only for his residence as would appear from the guidelines dated 23rd July, 2003, the relevant portion whereof reads as under :-
"3. The Government Resolution dated 30.05.2002 embodies the guidelines dated 14.01.1992 for observance by the Public Sector Undertakings. However, clarification was issued vide OM No.21011/790 Pol.1 IV.H.11 dated 07.07.1993 that the guidelines are meant for genuine non affluent tenants and these are not applicable to the large business houses and commercial entrepreneurs."
23. Issuance of such guidelines, however, is not being controlled by statutory provisions. The effect thereof is advisory in character and thereby no legal right is conferred upon the tenant. (See 1990 (Supp) SCC 440 at 508 : Narendra Kumar Maheshwari vs. Union of India and others ; (1981) 1 SCC 166 at 232 : Maharao Sahib Shir Bhim Singhji vs. Union of India and others ; (1988) 4 SCC 464 (paragraph : J.R. Raghupathy Page 35 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 and others vs. State of A.P. and others ; (2002) 100 DLT 487 : Uttam Parkash Bansal and others vs. L.I.C. of India and 1992 (2) CLR 457 : Punjab National Bank vs. M/s. The Lord Krishna Paper Industries and others."
19 The reliance is placed on the decision of this Court in Special Civil Application No. 6066 of 2006 with Special Civil Application No. 6341 of 2006, where this Court (Coram: Hon'ble Mr. Justice Jayant Patel) has held that, while exercising the appellate power under the Act against the order of eviction, competent authority under the Act has no power to examine the legality and validity of the action for termination of the contract. Therefore, it was held that so far as the observations made by the District Judge in the order which was impugned before the High Court so far as they relate to sitting in appeal over the decision for termination of the contract, cannot be maintained. The Hon'ble Court has observed as under:
"....There is considerable force in the contention of Mr.Patel, learned counsel for the petitioner that the District Judge while exercising the appellate power under the Act against the Page 36 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 order of eviction, the competent authority under Act had no power to examine the legality and validity of the action for termination of the contract. Hence, I find that the observations made by the learned District Judge in the impugned order so far as they relate to sitting in appeal over the decision for termination of the contract, cannot be maintained. However, it appears to me that the exercise of the power for eviction under the Act could not be said as severable, but rather is joint and composite exercise of the power and the reason being that the rights if any for maintaining the possession of the plot or against the eviction of first allottee and subsequent transferee are interconnected. It may be that the eviction officer while exercising the power may declare the transaction of transfer of possession or the agreement between the first allottee and the subsequent transferee as illegal or based thereon, may further consider the matter for entitlement to retain the possession or not.
But in my view, such aspect would be required to be considered simultaneously before the order of eviction is passed. Had it been a case of transfer after the eviction order was passed, the matter might stand on different footing and different consideration, but in a case where the transfer may be unauthorized, had taken place prior to the proceedings under the Act for eviction were initiated, it was be required for the competent authority to serve the notice to the first allottee as well as the so called transferee who is in possession of the plot simultaneously and both were required to be heard before the eviction order was passed. The Page 37 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 aforesaid procedure has not been followed by the eviction officer or the competent authority under the Act before passing the order of eviction."
20 In the case of Cantonment Board and another v.
Church of North India reported in (2012) 12 SCC 573, the eviction from premises owned by Union of India but under management of Cantonment Board. The eviction order was passed in 1991 by the Estate Officer under 1971 Act. The Cantonment Boards brought under Public Premises Act. The Court held that the premises since belonged to Union of Indian which were always covered under the Public Premises Act and were only under management of Cantonment Board, even prior to the amendment, and therefore, the premises were always covered under the Public Premises Act. After the expiry of lease, the respondents were since in unauthorized occupation, notice of seven days' was required under the Public Premises Act. The Hon'ble Court has held as under:
"5. Section 2(e) of the Public Premises Act defines Page 38 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 "public premises." This section is split into two sub-sections. Sub-section (1) covers thereunder any premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government. Sub-section (2) deals with premises belonging to or taken on lease or on behalf of various entities such as Government Companies, Universities, Major Ports etc. which are mentioned in that sub-section, and Cantonment Boards have come to be covered under sub-section (viii) by amendment with effect from 1.6.1994. The case of the respondent has been that the premises belong to Union of India, and, therefore, are public premises. The Estate Officer did have the jurisdiction over such premises. It is another matter that the premises of Cantonment Boards have also come under the definition of public premises since 1.6.1994. It cannot mean that the premises of Union of India which were always under the Public Premises Act, but under the Management of a Cantonment Board, since prior to this amendment, would not be covered under the Public Premises Act. This has been the plea of the appellants right from the beginning. "18. Section 116A of the Cantonment Act 1924, gives the power to the Cantonment Board to manage any property entrusted to it by the Central Government. It is under this Section that the present premises are under the management of the appellant Board. Section 116A reads as follows:
"Section 116A. Power to manage property.- A [Board] may, subject to any conditions imposed by the Central Government, manage any property entrusted to its management by the Central Government on such terms as to the sharing of rents and profits accruing from such property as may be determined by rule made under section
280."Page 39 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 The Government has the power to make rules concerning the management of these properties. This power is contained in Section 116 of the Act.
19. Mr. Venkaramani has drawn our attention to the Cantonment Land Administration Rules 1937 under which the properties under their management are classified into three categories `A", `B' & `C'. The present premises fall in category `C'. He has also shown us the receipt issued by the Defence Estate Officer to the appellant for the payment of rent of the land on which the hospital building is situated. We have also been shown the relevant notification issued by the Central Government authorizing the concerned Officer as the Estate Officer for the premises under the control of the Ministry of Defence.
20. This being the position, there is no substance in the objection raised by and on behalf of the respondent. The Estate Officer did have jurisdiction to take action against the respondent under the Public Premises Act. The period of authorization of the respondent to occupy the premises was over on 31.3.1984. Therefore, the respondent was in an unauthorized occupation thereafter under Section 2(g) of the Act. Notice as required, under Section 4 of the Public Premises Act was given. The respondent had no acceptable defence. The premises were no longer being used properly. That being so, the order of eviction was fully justified as also the order passed by the District Judge dismissing the appeal.
21. The Single Judge of the Rajasthan High Court, therefore, clearly erred in holding that a notice of 15 days ought to have been given in the present case to terminate the authority of the respondent on the concerned premises. The provisions of Sections 106 and 107 of Transfer of Property Act could not be applied to the present case on that count since the premises were covered under a Page 40 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 special act which will prevail as against a general enactment. The Division Bench also having accepted that the respondent was in an unauthorized occupation, erred in insisting that a 15 days' notice was necessary.
21 Learned Senior Advocate Mr. Marshall has relied upon the decision of the Apex Court in the case of Bantwala & Company v. Life Insurance Corporation of India & Anr. reported in (2011) 13 SCC 446, the Court held as under:
"41. The Court, therefore, examined the schemes of the two enactments, and noted the features of the two enactments in para 55 as follows:-
"55.(i) The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi.
(ii) The Public Premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil Procedure, the Public Page 41 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 Premises Act confers the power to pass an order of eviction of an unauthorized occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order.
(iii) Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorized occupants from public premises. In other words, both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein." ......(nos. to sub-paragraphs supplied).
Having noted the distinctive features of the two acts, the Court held that the principle that a subsequent general law cannot derogate from an earlier special law could not be invoked in that case because the later act, namely, Public Premises Act was also special statute and not a general enactment. Therefore, it further held that the Public Premises Act must prevail over the Rent Control Act in accordance with the principle that the later laws abrogate earlier contrary laws.
94. We have referred to the general guidelines dated 30.5.2002, laid down by the Central Government in this behalf. Guidelines no. 2(i) and 2 (iii) are relevant for our purpose. Guideline no. 2 (i) states that the provisions of the Public Premises Act, 1971 should be used primarily to evict totally unauthorised occupants. Guideline No. 2 (iii) specifically states that it will be open to the public authority to secure periodic revision of rent in terms of the provisions of the Rent Control Act in each State, or to move under genuine grounds under the Rent Control Act for resuming possession. Thus, these guidelines specifically recognise the relevance of certain provisions of Rent Control Acts for their application to the Page 42 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 properties covered under the Public Premises Act. It is stated in the guidelines that the public authorities would have rights similar to private landlords under the Rent Control Acts in dealing with genuine legal tenants. It follows that the public authorities will have the obligations of the private landlords also. It is relevant to note that the purpose of these guidelines is to prevent arbitrary use of powers under the Public Premises Act."
22 The moot question in light of the law which is being discussed hereinabove is whether the issuance of notice under the Public Premises Act and not under Sections 106 and 111 of the Transfer of Property Act would in any manner vitiate the proceedings. It is not in dispute that the premise allotted to the respondent is covered under the definition of public premises. The initial transfer to M/s. Batliboi and Co.Pvt.Ltd., and subsequent transfer in favour of the respondent was with a consent of the petitioner. The notice issued after 28 years to the present respondent-occupier for non- compliance of the covenant of the lease, by the Estate Officer under Section 5 and non-issuance of the notice under the Transfer of Property Act Page 43 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 whether would be an act which is non-est or a nullity as per the condition no.2 (3) of the lease deed entered into with M/s. Batliboi and Co.Pvt.Ltd. The lessee was to complete the construction on the plot within a period of 36 calendar months from the date of allotment and condition no.2(7) was that the premises leased were only to be used for the business purpose and lessee was under obligation not to cause any kind of annoyance or disturbance to the people in vicinity and at large.
23 The representation made by the respondent is rejected and it was decided not to revoke the order 29.03.2007 or modify the cancellation order. It is the say of the respondent that the petitioner has also regularized the breach vide notice dated 03.04.2012 for non-construction and non- completion of construction by one of its lessees. It is therefore, urged on the ground of uniformity in Page 44 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 policy and on the ground of parity, the petitioners ought to have considered the case of the respondent for regularization of breach. 24 This Court has heard at length the learned advocates appearing for the KPT along the line of the memo of the petition. Learned Senior Advocate Mr. K.M. Patel appearing with learned advocate Mr. Alpesh Rajpuriya has urged that, transfer has been effected, of course, with the consent of the petitioner - KPT from M/s. Batliboi and Co. Pvt. Ltd. to the M/s. Western Trading 25 At this stage, if one looks at the judgement and order, which is impugned of the appellate Court Regular Civil Suit No.56 of 2005 quashing and setting aside the order of eviction passed by the Estate Officer, Kandla Port Trust directing to evict plots on 19.12.2005, which shall need a closer Page 45 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 examination.
26 This is an appeal preferred under section 9 of the Public Premises Act, which had been passed by the Estate Officer appointed under the said Act, whereby he directed the respondent herein to vacate the plot within 15 days from the date of impugned order and hand over the vacant possession to the Kandla Port Trust under section 5 of the Public Premises Act. The officer concerned had been appointed under section 3 of the said Act. It is not in dispute that the plot was originally allotted to M/s. Batliboi Company Private Limited on 21.02.1967 for the purpose of business by the Kandla Port Trust, the petitioner herein, on lease for the period of 99 years. The lease deed was also sub-registered at Anjar.
26.1 It is not in dispute that after obtaining necessary permission of the petitioner, the lease holder's rights in the said plots given to M/s. Batliboi Company Private Limited, the original lessee, have Page 46 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 been transferred by it to the present respondent M/ s. Western Trading Company in the year 1988 by way of transfer deed dated 18.10.1980 and, accordingly, the said plot was mutated in the name of the respondent in the record of the petitioner. Mutation entry was also entered with the Sub- Registrar's Officer, Gandhinagar. It appears that merely after the petitioner issued a notice on 11.03.1996, after about 08 years of the permission to transfer in the name of the present respondent, it called upon the respondent to remedy the breaches by removing the materials stored in the open plot and also by completing the constructions within the period of 30 days from the date of receipt of the notice. In the event of failure to remedy the breaches, it directed that the action for cancellation of the allotment of the plot would be initiated by the petitioner without any further notice. It also asked the respondent to furnish a copy of Gandhidham Development Authorities, Page 47 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 which granted permission for carrying on the constructions. This was in wake of Special Civil Application No. 3544 of 1996 preferred by Shri Ambeskar before this Court where he contended that allottees of certain plots stored different commodities openly and thereby caused public nuisance and because of the storage in the open places, it affected the environment also and the nuisance of rats, flies, cats, insects etc had affected health of public in the surroundings. This also has caused issues of traffic regulations. In the rainy season, there had been bags of food grains, which would emanate foul and dirty smell, which would seriously affect the health of the public in the vicinity and this also causes a considerable loss of food grains when millions are not getting the food to eat.
26.2 This Court on 25.02.1997 directed the petitioner herein not to allow the use of the plots allotted to the respondents by the petitioner without prior Page 48 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 permission of the Court and also further directed that necessary action shall be taken against those who are committing the breach. As per the direction of the Court, the petitioner cancelled the allotment of the plot by a notice dated 29.03.1997 and called upon the respondent to hand over the vacant and peaceful possession of the plot on or before 10.04.1997. However, the possession was not handed over as directed and, therefore, the proceedings under the Public Premises Act had been initiated against the respondent by the Estate Officer on 19.07.1997 and the notice also had been issued under section 4 of the Public Premises Act as mentioned hereinabove. This had resulted into the respondent approaching this Court in a petition where the Court on 19.01.1998 directed the parties to approach the Chairman of Kandla Port Trust with necessary application for review of earlier order and directed the Chairman, Kandla Port Trust to decide the review with sympathy towards Page 49 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 allottees. It also further permitted the revocation or modification of the order of cancelling the release of the plots and it was kept open for the Trust to drop the proceedings initiated against the allottees. After availing due opportunities to the parties, the Chairman, Kandla Port Trust rejected the prayer to revoke or modify the cancellation order of 29.03.1997 and directed the respondent to hand over the vacant and peaceful possession. 27 On rejection of this representation of review, the Estate Officer proceeded with the eviction proceedings. However, the respondent chose not to appear in person or through an authorised representative. It is only in the month of February, 2004 that the advocate was engaged to appear before the Estate Officer, but due to some other reasons, proceedings could not be initiated. Request was made by the learned advocate appearing for the respondent to allow the leading of evidence, according to the learned advocate Page 50 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 appearing for the Kandla Port Trust.
28 Thus, after hearing both the sides finally, the Estate Officer concluded that the plot in question were needed to be vacated under the Public Premises Act. In the event of their not complying with the same within 15 days, they would be evicted forcefully.
28.1 The Court of learned Additional District Judge, Kandla was approached by way of a Regular Civil Appeal and the following issue was cast by the Court:
"Whether the appellant proves that the eviction order dated 19.12.2005 passed by the Estate Officer in Eviction Case No.36 of 1997 is arbitrary and illegal and against the settled principles of natural justice and, therefore, the said order is liable to be quashed and set aside."
28.2 The Court gave the findings in affirmation giving detailed reasons.
29 The main thrust of arguments on the part of the Page 51 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 respondents was that as per the guidelines issued by the Central Government, provisions of the Public Premises Act are to be used primarily to evict the illegal occupants of the premises of the public authority or unauthorised sub-letters or employees, who have ceased to be in their service. However, persons, who are in occupation of any premises should not be treated or declared to be in unauthorised occupants merely on service of notice of termination of tenancy, as NC or breach of contractual agreement, by taking advantage of provisions of the Public Premises Act, there cannot be any termination of tenancy. According to the him, the petitioner has been managing the land on behalf of the Government of India and, therefore, it is bound to follow the guidelines issued by the Central Government of India. According to the learned Judge, provisions of the Public Premises Act cannot be invoked against those, who are transferee of the plots, which has been leased out Page 52 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 by the petitioner for the period of 99 years, in the instant case, to M/s. Batliboi and Company Private Limited with interest and lease hold rights were transferred in favour of the respondent on 18.10.1980. Hence, the Court was of the opinion that the respondent being in lawful possession of the plots, cannot be treated as unauthorised occupant, simply because tenancy of the plot has been terminated or allotment of the plot has been cancelled. Central Government guidelines provided that the mere termination of tenancy or cancellation of lease is not sufficient to treat the person concerned as unauthorised occupant of the land within the meaning of section 2(g) of the Public Premises Act. The Court also held that if a person is not authorised occupant within the meaning of section 2(g), no proceedings under the said Act can be commenced or initiated against the said person whose lease is cancelled or tenancy is terminated.
Page 53 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 30 The Court appointed the Deputy Secretary, Kandla Port Trust as the Estate Officer under section 3 of the said Act by way of a notification. What also weighed with the Court is that lease was not terminated by the Kandla Port Trust, in accordance with the provisions of the Transfer of Property Act, and therefore, the respondent was not an unauthorised occupant. The Court further held that the lease can be determined in accordance with the provisions of the Transfer of Property Act. Section 111 and section 106 of the Transfer of Property Act shall need to be taken into consideration and unless these two provisions are involved, it cannot be said that the respondent had been an unauthorised occupant. The Court also did not agree with the stand taken by the petitioner herein that notice of cancellation of allotment on 29.03.1997 with a corrigendum on 03.04.1997 was sufficient to terminate or determine the lease as the termination of the lease shall not invoke the powers Page 54 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 under section 111 and section 106 of the Transfer of Property Act. It also took note of the fact that notice required under section 111(g) was a must and without issuance of any such notice under section 111 and as per the provisions of 106 of the Transfer of Property Act. It conclusively held that there had been no termination or determination of the lease and since the lease had not come to an end, it is not possible to hold that the respondent can be said to be in unauthorised occupation in relation to the Public Premises Act.
31 The Court also further held that if the rent is payable year after year, section 106 of the Transfer of Property Act provides for determining the lease by six months prior notice. It is for the Estate Officer to satisfy himself that the person is in an unauthorised occupation of the premises for him to issue the orders and direction. The Court was also of the opinion that it was since leased for 99 years, by efflux of time, on 21.02.1966, the lease will be Page 55 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 terminated and till then, it will remain in force unless determined under section 111 read with section 106 of the Transfer of Property Act. 32 The Court also relied on the decision of Allahabad High Court in the case of Dalip Singh vs. Kudan Singh, AIR 1914 ALLAHABAD 128, which says that if a rent is payable annually, the tenancy will be yearly and it can be legally terminated by giving lessee six months notice expiring at the end of the year. Therefore, unless six months notice is given, as required under section 106 of the Transfer of Property Act, any order passed is illegal. It was emphasized on the part of the petitioner before the appellate Court that the lessee was bound to complete the construction on the plot within 36 calendar months, which it had failed to and, therefore, there was a breach of condition of the lease deed and the possession of the lessee had become unauthorised and therefore, the lessee could be termed as unauthorised occupant. It was Page 56 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 also argued that there was a breach of clauses 2 and 3 of the lease deed and, therefore, the lease deed was liable to be fortified, which has been done by the Kandla Port Trust on 29.03.1987 and, therefore, the order of eviction under section 5(1) was justifiable.
33 The Court also was of the opinion that as per Clauses 2 and 3 of the lease deed, M/s. Batliboi & Company Private Limited was required to carry out the construction on the plot and, therefore, by 21.02.1970, the same ought to have been done. Not only M/s. Batliboi & Company Private Limited never did that, the petitioner continued to accept the yearly rent and subsequently, it also permitted transfer by lease in favour of the present respondent. Therefore, the condition has been essentially waived by the petitioner. 33.1 For nearly 18 years, the petitioner never became aware about the breach of condition committed by the lessee. From the year 1967, they continuously Page 57 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 breached the vital conditions of the lease, which was an exquisite permission given for transfer of lease, taking into consideration their silence for a very long stretch of period would amount to the waiver. It is covenant in a lease, which is a single breach and, thereafter, year after year, would amount to waiver of breach of covenant. 34 The Court also read section 114 of the Transfer of Property Act, which provides that if a breach of covenant is permitted within a reasonable time, a clause of forfeiture would not be affected. It noticed that the respondent had removed the quantity of food grains and used cargo within a reasonable time after the receipt of notice. Therefore, it cannot be said that the lessee is liable for a new breach. One of the grounds accepted by the Court concerned was that the respondent allowed the use of the plot by one Ship Shipping Service, which is the sister concern of M/s. A. Jaswantrai and Company and due to personal relations this Page 58 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 storage of used cargo in the open plot was not charged. Therefore also, there is no question of breach of any condition. Accordingly, it held that the order of eviction passed by the Estate Officer was required to be quashed.
35 Worthwhile would it be to refer to the lease deed of 99 years entered into on 20.07.1966 between the petitioner and the original lessee M/s. Batliboi & Company Private Limited. It speaks of early rent and sub-clause 2 and 3 speak of covering of the said premises by the lessee in the following manner:-
"(2) The Lessee will from time to time and at all times pay and discharge all rates, taxes, charges and assessments of every description which are now or any at any time hereafter during the continuation of this lease be assessed, charges, or imposed upon or in relation to the premises hereby demised or any buildings to be erected thereupon.
(3) Within the period of Thirty six calender months from the said Twenty first day of February, Nineteen hundred and Sixty Seven or within such extended period as may be granted in writing to the Lessee by the Chairman Kandla Port Trust, (hereinafter referred to as the Chairman) Page 59 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 the Lessee shall and will at his own expenses erect upon the demised premises cover in and complete ina substantial and work-manlike manner a building to the satisfaction of the said Chariman or such officer as may be appointed by him in this behalf with all requisite and proper walls, sewers, drains and other conveniences thereto of such description and description and design respectively as shall have been prescribed and/or approved of in writing by the Chairman.
Provided that such building shall be constructed in all respects in accordance with such designs, plans and specifications and in such situation and position and and arranged in such manner as shall have been previously proposed and submitted by the Lessee to the said Chairman and approved of in writing by him.
Any provided all the materials used in the said building shall be good and sound and shall have been approved by the Chairman and the timber shall be of good teak only or such other good timber as shall be sanctioned by the Chairman.
And provided further that all drains and sewers for the said premises shall be constructed; made, laid and connected to the satisfaction of the Chairman and/or any Local Authority and in such position as shall be directed by the Chairman and/ or by the said Local Authority."
36 Clause 2(7) also requires reproduction, which speaks of carrying on the business without any nuisance:
Page 60 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 "(7) The Lessee will use the premises primarily for Business purpose and consistently with the requirements of Business area and will not do or suffer to be done thereon any act or thing whatsoever which in the opinion of the Chairman may be an annoyance, disturbance or nuisance to the Lessor or his tenants in the Township of Gandhidham."
37 Clause 4 says that any breach would permit the lessor to determine the lease for retaking possession of the premises:-
"4. The Lessor, may in case of breach of any of these covenants by the Lessee or by any person claiming through or under him; determine this lease and in such case it shall be lawful for the Lessor and the Chairman ( by himself or by any of his subordinates specifically authorized in this behalf) to enter on the demised premises or any part thereof in the name of the whole and retake possession of the demised premises and any structures, buildings and constructions of whatsoever nature standing thereon; and in that case the Lessee shall not be entitled to any compensation paid by way of refund or any part of the lumpsum development charges paid hereunder or any outgoings paid by him in this behalf or by way of any damages for any loss of property or business suffered by him provided however,
(i) In case of any breach of the terms by the Lessee relating to non-payment of Page 61 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 ground rent, installment of lumpsum development charges or any other dues outgoings and impositions, hereunder levied or imposed, the Lessor shall not take any action under this Clause unless the Lessee has been in arrears for a period of over two years.
(ii) In case at the time of determination of this lease-deed, there exists some building or structure on the demised premises the Lessor shall, within reasonable time of his having taken over the same, pay reasonable compensation to the Lessee for the said buildings and/or structures. Such compensation shall invariably be between the then market value of the demised premises with and without the aid buildings and/or structures."
38 One notice for determination is contemplated under clause 5:-
"5. No forfeiture or re-entry shall be affected except as herein provided without the permission of the Lessor or the Chairman who shall not permit such forfeiture or re-entry until and after month of the Lessee being served with a notice in writing by the lessor.
(a) Specifying the particular breach complained of, and
(b) Directing the same to be remedied, if the particular breach is capable of being so remedied."
39 The lease deed being signed on 21.02.1967, the Page 62 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 transfer had been effected in favour of respondent on 18.10.1988 from M/s. Batliboi & Company to M/s. Western Trading Company. Clauses 7 and 8 of the lease deed speak of the transferee to abide by the covenant and conditions contained in the lease of transferor .
40 It is quite clear from these covenants that original lessee was required to carry out the construction over the said premises to the satisfaction of the Chairman or such office as he may appoint within 36 calendar months from 21.02.1967 that is the date on which the lease was given in favour of the respondent. Necessity of carrying out the business without causing any nuisance, disturbance or annoyance to the lessee or any of the tenant in the conditions at Gandhidham is also one of the covenants.
41 Clause 2(10) also provides permission for inspection of the premise to the Chairman or any authorized officer or to the sanitary staff for the Page 63 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 purpose of maintaining sanitation.
42 Clause 2(12) provides for not to transfer or assign premises without prior permission in writing from the Chairman or any authorised officer. In the event of breach, Clause (4) permits the determination of the lease to the Chairman by entering upon the premises or any part thereof and take wholly the possession of the premises. A month's notice has been made mandatory under Clause 5 before forfeiture or reentry. The present respondent agreed to abide by all the terms and conditions of the earlier lease.
43 In this background, the notice of 22.04.1996 deserves reference at this stage, which speaks of breach of Clause 2(3)(6) of the lease deed where there was a necessity for completion of the construction of the plot within a period of 36 months, as it has not been completed or commenced in 32 years, therefore, this breach has been construed seriously.
Page 64 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 43.1 Notice also speaks of dumping of huge quantity of soya bean, wheat and rice in bags. It also speaks of using of the plots in open for storage amounting to change of use of land and thereby, causing nuisance to the adjacent plot holders. It directed the constructions to be completed within 30 days time and removing the dumped bags and completing the construction. In the event of failure, the action of cancellation of allotment was to be initiated.
44 As mentioned hereinabove, by way of Special Civil Application No. 3544 of 1996 had been preferred before this Court by one Vasant Ambeskar and this Court vide order dated 25.02.1997 passed the following order :-
"The petitioner has pointed out that respondent Nos.7 to 14 allotees of plots at Kandla Port Trust at Gandhidham have not made construction as required and were found storing food grains in open and particularly in rainy season it was found that they were keeping food grains in open. It is pointed out that the Executive Magistrate also passed an order that within a period of ten days the food grains Page 65 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 must be removed under a covered godown. One such notice is annexed to the petition at page 21. Letter was issued by Gandhidham Municipality in this behalf, which is at page 22 of the petition. It is pointed out that the storage of food grains in open during monsoon season causes nuisance and it destroys the food grains.Insects are not only spoiling the food grains but the same is the cause for the spread of the decease. Various notices issued by the Kandla Port Trust calling upon these persons not to store food grains in the open and to complete the construction, are placed on record. Till date no constructions is made.
The Respondent Nos.7 to 13, though served have not chosen to remain present before the Court. Mr. Brahmbhatt learned Advocate has placed on record letter dated 21.2.1997 addressed to him by Kandla Port Trust indicating the present position of construction and use of plots to whom notices have been issued. From the contents of the letter it is clear that the plot holders have not done anything even after issuance of the notices by Kandla Port Trust. We fail to understand as to why Kandla Port Trust has not taken any action which was required to be taken much earlier.
Under the circumstances we direct the respondents Nos. 7 to 14 not to use the plots allotted to them by Kandla Port Trust without previous permission of this Court and kandla Port Trust shall see that action is taken at the earliest s breach is committed.
Fresh Notice to be issued to respondent no.Page 66 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 S.O. To 25.03.1997"
45 Pursuant to the directions issued on 25.02.1997, on 29.03.1997, the petitioner ordered cancellation of allotment on account of breach of the terms and conditions and on account of non-compliance of the directions by notices dated 07.03.1996 and 22.04.1996. There had been breaches of not removing the dumped material from the plot and also of not completing the construction within the period of 30 days.
46 The Division Bench also took note of the various notices issued by the Kandla Port Trust calling upon the person not to store food grains in open and to complete the construction and yet no construction had been made and, therefore, it directed the Kandla Port Trust to initiate action. 47 The petitioner, therefore, directed that by committing such breach of terms and conditions of the allotment, the respondent was entitled to determine the lease and the same had been with Page 67 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 effect from 09.04.1997. It also directed to hand over the vacant and peaceful possession to the Estate Manager on 10.04.1997.
48 Notice also came to be issued under sub-section B(2) of section 4 of the Public Premises Act, 1971 on 10.07.1997 and, therefore, it had asked the respondent to show cause as to why the order of eviction be not made on or before 28.07.1997. The respondent approached this Court in Special Civil Application No. 3544 of 1996. The Court disposed of the proceedings by saying that plot holders can approach the Chairman of Kandla Port Trust with necessary application for review of the decision of the Chairman and directed the petitioner to consider the review application with sympathy. It also permitted the Chairman of Kandla Port Trust to revoke or modify the order of cancellation of lease of the plots. The respondents were also permitted to submit necessary plan within the period of one month from the date of order either Page 68 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 by revocation or modification and plot holders were permitted to approach the Court through Civil Applications and were given time of one year from the date of approval of the plan to complete the construction. It also further stated that those of them, who have been restrained from making any construction, they shall maintain the status quo till the review or modification application is decided. The Court also further stated that this order shall also enure for the benefit of those plot holders, who are before the Court.
49 As mentioned hereinabove, the Chairman, Kandla Port Trust, after giving opportunities to the parties, rejected the application for not having found any valid reason for restoration of the cancelled plots and called upon the respondent to hand over the peaceful and vacant possession. Worthwhile, it would to reproduce the some of the reasons of the order of the Chairman, while rejecting the request:
"11. In addition to the breach of not commencing and completing Page 69 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 construction on the plot, M/s. Western Trading Co. committed another breach of keeping bags filled with Soya-bean, Wheat and Trice on the open plot resulting into the public nuisance as brought out to the notice of Hon'ble High Court of Gujarat by the petitioner Shri Vasant V. Ambeskar in the Special Civil Application bearing No.3544 of 1996. The Hon'ble High Court of Gujarat took note of all the facts and passed orders dated 25.2.1997 in the said Special Civil Application No. 3544 of 1996 directing the respondents not to use the plots allotted to them by Kandla Port Trust without prior permission of the Court and also directed that Kandla Port Trust shall see that action is taken at the earliest by them, as breach is committed by the allottees. The period of 9 years was more than sufficient for M/ s. Western Trading Co. for making use of the plot by completing construction on the plot as per the approved plan. The Kandla Port Trust acted reasonably by issuing a notice to the allottee to remedy breach and on failure to remedy breach committed by the party, Kandla Port Trust took action for cancellation of allotment and determination of the lease.
12. The Section No.8 in Gandhidham Township is a Prime Commercial Locality and lot of construction has already been carried out in this area and the applicant M/s. Western Trading Co. could not give sufficient grounds or justification for not taking any steps either to commence and subsequently complete the Page 70 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 construction in accordance with the plans approved by Gandhidham Development Authority.
13. Inspite of a specific condition stipulated in the Lease- deed and agreed to by the lessee to carry out construction on the leased land, the first lessee has not carried out construction for about 24 years (1964 of 1988) and thereafter the transferee i.e. present lessee M/s. Western Trading Co.
had not carried out construction for about 0 years( from 1988 to 1997) though the lessee was having un- disturbed and absolute possession of the plot in question. Thus, the valuable plot of land bearing No.92 in the prime location remained un-constructed from 1964 to 1997 i.e. about 33 years and the land remained out the economic use.
14. M/s. Western Trading Co. under his representations dated 18.2.1998 and 14.10.2003 failed to give any convincing reasons for not initiating or undertaking any efforts to commence and complete construction on the land which was in the possession of Lessees for about 33 years and has not given justification for restoration of plot No.92, Section-8 in his favour. Hence it has been decided not to revoke or modify the notice of cancellation of allotment dated 29.3.1997 issued by Estate Manager on behalf of the Board of Trustees of the Port of Kandla, Kandla Port Trust and as the allotment is already cancelled, M/s. WesternTrading Co. Ltd is hereby called upon to hand over vacant and peaceful possession of Page 71 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 the cancelled plot No.92 in Sector No.8 at Gandhidham back to Kandla Port Trust in accordance with the said notice."
50 It appears that this order of 25.11.2003, passed by the Chairman, Kandla Port Trust, deciding not to revoke or modify the order of cancellation dated 29.03.1997, issued by the Estate Manager on behalf of the Board of Trustees of the Port of Kandla, the petitioner, Kandla Port Trust, has already been continued. Thus, consequently, the allotment has already been cancelled. There has been no challenge to the cancellation of the allotment by notice dated 29.03.1997 by any mode or manner, neither there had been any petition preferred nor had they preferred any civil suit questioning and challenging the cancellation of allotment. Therefore, when the notice was issued under the Public Premises Act, under sub-section (1) of section 5 of the Transfer of Property Act, the Estate Officer, appointed under section 3 of the Public Premises Act , in exercise of powers under Page 72 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 sub-section 12 of section 5, ordered the respondent to vacate the said premises within 15 days from the date of publication of the order. This order of 19.12.2005 passed by the Estate Officer has been challenged by way of Regular Civil Appeal No.56 of 2005, which is under the provisions of section 9 of the Transfer of Property Act, which is impugned here.
51 Additional affidavit on behalf of the respondent will be relevant, at this stage, which says that during the pendency of this petition, in similar cases of the present nature, the petitioner has regularized the breaches of non-construction committed by the lessee by imposing penalty and the circular dated 11.02.2004 permitted the regularisation of the breach committed by the lessee by charging the penalty. The respondent also made a representation to the petitioner. However, on 11.11.2011, petitioner No.2 rejected the representation of the respondent and decided not Page 73 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 to revoke the order of cancellation of 29.03.1997. It is further stated that the petitioners have regularised the breach vide notice dated 03.04.2012 for non-construction and non- completion of the construction by one of its lessees. Therefore, even on the ground of uniformity in the policy and on the ground of parity, the case for regularisation of the breach should be considered. Some of the circulars of the year 2012 have been brought on the record.
52 All the petitions of the petitioners are not entertained upholding the judgement and order challenged in these petitions, whereas both the petitions preferred by respondent M/s. Western Trading Company and Madhuben Resorts Club Pvt. Ltd. are allowed partly by directing the respondents to consider the representations of the petitioner for regularisation of the breach including by imposing penalty etc. on the ground parity. 53 The reasons given by the Court below, while Page 74 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 dismissing the plea of present petition, are sound and in tune with principles well established. The lease not having been terminated as required under the Transfer of Property Act and as the breach has continued for an exceptionally long period, sudden action on the part of the petitioner to initiate the proceedings under the Public Premises Act have been rightly not endorsed by the Court of learned Joint District Judge. No interference is warranted. 54 At the same time, since the breach is quite obvious, the respondent shall need to get the same regularised by making a request which has been done by way of representation by the respondent. 55 Having considered for some other parties, let the same be considered on the ground of parity with necessary penalty and other directions of compliance. Let the same be considered within three months from the receipt of the copy of this judgement.
56 Civil Applications, if any, pending, shall be Page 75 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023 C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023 disposed of in view of the order passed in the main petitions.
(SONIA GOKANI,CJ) SUDHIR Page 76 of 76 Downloaded on : Mon Feb 27 20:37:40 IST 2023