Gujarat High Court
Sunderben Kaluram Jatiya vs Ratandeep (Gandhidham) Owners ... on 17 October, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1336/2023 ORDER DATED: 17/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1336 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 11148 of 2016
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 2 of
2023
In R/LETTERS PATENT APPEAL NO. 1336 of 2023
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY)
NO. 3 of 2023
In R/LETTERS PATENT APPEAL NO. 1336 of 2023
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SUNDERBEN KALURAM JATIYA
Versus
RATANDEEP (GANDHIDHAM) OWNERS ASSOCIATION
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Appearance:
MR. RADHESH Y VYAS(7060) for the Appellant(s) No.
1,2,3,4,5,6,6.1,6.2,6.3,6.4,6.5,6.6
for the Respondent(s) No. 1,10,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS.
JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P.
MAYEE
Date : 17/10/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS.
JUSTICE SUNITA AGARWAL)
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NEUTRAL CITATION
C/LPA/1336/2023 ORDER DATED: 17/10/2023
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1. We have heard Shri Radhesh Vyas, the learned counsel for the applicants / appellants and Shri M. K. Vakharia for the respondent No. 9.
2. There is no serious objection to the delay in filing the application for bringing legal heirs of deceased applicant No. 6 by the learned counsel for the respondent present. Having gone through the delay condonation application, we find that the explanation for delay in filing the application for bringing heirs on record is to the satisfaction of the Court. The delay condonation application is allowed. The delay in filing the application for bringing heirs on record is hereby condoned.
3. The application for bringing legal heirs of deceased applicant No. 6 is also allowed.
4. The appellants herein seek to challenge the order passed by the learned Single Judge in rejecting the application filed by them seeking to join party in a writ petition which has been filed by Page 2 of 10 Downloaded on : Fri Oct 20 20:37:13 IST 2023 NEUTRAL CITATION C/LPA/1336/2023 ORDER DATED: 17/10/2023 undefined respondent No. 1 challenging the order passed by the competent authorities in the proceeding conducted under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (in short, referred to as 'the Act, 1971").
5. The facts relevant to the matter to decide the controversy at hand are that the premises in question namely Plot No. 54, Sector 7, admeasuring 1587.67 sq. yards in Gandhidham had been allotted to one Bhikhchand R. Shah for a period of 99 years by virtue of the allotment letter dated 08.02.1979. Pursuant to the said allotment letter, a Lease Deed came to be executed on 27.04.1995. The allotted plot was an open land and the allottee namely Shri Bhikhchand R. Shah was given lease to develop it by erecting constructions thereon. After the plan was got sanctioned, the development was carried out. However, the original allottee namely Shri Bhikhchand R. Shah applied to the respondent No. 9 - Port seeking permission to transfer the property in question to the respondent No. 1 herein / original petitioner. The said permission came to be granted by the respondent No. 9 vide letter dated Page 3 of 10 Downloaded on : Fri Oct 20 20:37:13 IST 2023 NEUTRAL CITATION C/LPA/1336/2023 ORDER DATED: 17/10/2023 undefined 05.09.1995. It seems that a dispute has arisen with respect to the breach allegedly committed by the respondent No. 1 herein, which has resulted in determination of lease by the respondent No. 9 vide letter dated 05.03.1998. After determination of lease, the proceedings under the Act, 1971 were initiated with the issuance of notice dated 03.11.1998 under sub-section (1) of clause (b) of sub- section 2 of Section 4 of the Act, 1971. The Estate Officer passed an order dated 1/3.07.2000 of eviction of respondent No. 1 on the ground of being unauthorised occupation of the public premises. The Civil Misc. Appeal No. 30 of 2000 filed under Section 9 of the Act, 1971 before the 5th Additional District Judge, Gandhidham - Kachchh came to be dismissed by an order dated 30.05.2016. The writ petition, out of which the present appeal has arisen, had been filed by the respondent No. 1 / original petitioner challenging the order passed by the Estate Officer as also the appellate authority. We may note that the connected appeal being Letters Patent Appeal No. 1218 of 2023, filed by the respondent No. 1 / original petitioner has been dismissed as withdrawn on the statement made by the learned counsel for the appellants, when preliminary objection was Page 4 of 10 Downloaded on : Fri Oct 20 20:37:13 IST 2023 NEUTRAL CITATION C/LPA/1336/2023 ORDER DATED: 17/10/2023 undefined raised with regard to the maintainability of the said appeal arising out of the order passed by the learned Single Judge in exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution of India.
6. The appellants herein had filed an application seeking to join as party before the writ Court with the assertion that they being occupier of the premises in question, were entitled to be heard by issuance of individual notice under Section 4 of the Act, 1971. It is argued by the learned counsel for the appellants that the application filed by the appellants herein seeking to join party in the writ Court has been wrongly dismissed under the premise that in view of the fact that the applicants / appellants herein are claiming through original allottees, whose occupation is held to be unauthorised and the original allottee being the trespasser, the applicants / appellants herein are not entitled to be heard separately. It is vehemently argued by the learned counsel for the appellants that the expression 'occupation' used in Sections 4 and 5 of the Act, 1971 is of much importance, inasmuch as, the Act contemplates eviction even of an Page 5 of 10 Downloaded on : Fri Oct 20 20:37:13 IST 2023 NEUTRAL CITATION C/LPA/1336/2023 ORDER DATED: 17/10/2023 undefined unauthorised occupant after giving due notice and opportunity to them by adopting the procedure prescribed in the Act, 1971. The contention is that as at no point of time notice was issued to the appellants / applicants herein, they cannot be non-suited on the premise that they are claiming to be in occupation of the premises in question through the original petitioner whose occupation has been found to be unauthorised or who has been termed as a trespasser. It is vehemently argued by the learned counsel for the appellants that in any case, the applicants being in occupation of the shops existing in the premises in question, though inducted through the original petitioner, have independent right to assail the order passed by the Estate Officer and the Appellate Authority under the Act, 1971 and the order passed by the learned Single Judge in rejecting their application seeking to join party, therefore, has to be set aside.
7. Having heard the learned counsel for the appellants / applicants and in view of the facts noted above, it is relevant to reiterate that the respondent No. 9 namely lessor had determined the lease of the respondent No. 1 vide order dated 05.03.1998. As per Page 6 of 10 Downloaded on : Fri Oct 20 20:37:13 IST 2023 NEUTRAL CITATION C/LPA/1336/2023 ORDER DATED: 17/10/2023 undefined the statement made in the application seeking for joining party, applicant No. 1 namely Sunderben Kaluram Jatiya, claimed to have inducted in the premises in question by the original petitioner vide allotment letter dated 25.01.1998. The applicant No. 2 namely Baluben Khemchandbhai Vankar stated that she has been inducted vide allotment letter dated 19.08.1997. As regards applicant No. 3 namely Naranbhai Vishanji Jethwa, he claimed to have purchased a shop in the premises in question vide Sale Agreement dated 19.10.2007, which was executed by one Smt. Kamudben Shaileshbhai Varu, to whom the shop in question was allotted by the original petitioner / respondent No. 1 vide allotment letter dated 23.07.1997. Shop No. 4, as per the statement made in the application itself, was initially allotted to Smt. Kamudben Shaileshbhai Varu by the original petitioner / respondent No. 1 vide allotment letter dated 23.07.1997 and it was sold to applicant No. 4 - Meghji Damji Kochra vide Sale Agreement dated 19.10.2007. Shop No. 5 claimed to be owned and possessed by applicant No. 5 - Lalchand Kanji Maheshwari. There is no description in the application as to how the applicant No. 5 owned and possessed Shop Page 7 of 10 Downloaded on : Fri Oct 20 20:37:13 IST 2023 NEUTRAL CITATION C/LPA/1336/2023 ORDER DATED: 17/10/2023 undefined No. 5. Similarly, Shop No. 6 is stated to be owned by applicant No.
6. There is no description of ownership of applicant No. 6 in the application seeking for joining party.
7.1 It is pertinent to note at this stage that all the six applicants who have filed the application seeking for joining party in the writ petition filed by the original petitioner are the members of the Association known as M/s. Ratandeep (Gandhidham) Owners Association, whose lease has been determined vide letter dated 05.03.1998. For the facts admitted by the applicants / appellants herein that they are all members of the original petitioner Association and have no independent right insofar as the premises in question is concerned, the contention that the finding returned by the learned Single Judge that the applicants / appellants herein were claiming their right in the premises in question through the original petitioner / respondent No. 1 herein suffers from error of law, cannot be accepted. With the determination of lease of respondent No. 1 / original petitioner vide letter dated 05.03.1998 by the respondent No. 9 i.e., Board of Trustees of the Port of Kandla, the applicants / Page 8 of 10 Downloaded on : Fri Oct 20 20:37:13 IST 2023 NEUTRAL CITATION C/LPA/1336/2023 ORDER DATED: 17/10/2023 undefined appellants herein cannot agitate any independent right as occupier within the meaning of Sections 4 and 5 of the Act, 1971. At no stage of the proceedings, conducted before the Estate Officer, under the Act, 1971, the applicants / appellants who are the members of the original petitioner Association sought impleadment claiming independent right. The contention of the learned counsel for the applicants / appellants herein that at no point of time, the applicants / appellants were intimated about the proceedings going on against the respondent No. 1 Association of which they were member, is found to be misconceived.
7.2 Further, the contention of the learned counsel for the applicants / appellants that the Association in its individual capacity had no right to represent the case of the appellants / applicants who are admittedly the members of the Association, is found to be the wholly misconceived, the reason being that with the determination of the lease of the Association which was the original lessee inducted in the year 1998, its members have left with no independent claims insofar as their occupation of the premises is concerned.
Page 9 of 10 Downloaded on : Fri Oct 20 20:37:13 IST 2023 NEUTRAL CITATION C/LPA/1336/2023 ORDER DATED: 17/10/2023 undefined 7.3 For the fact that the appeal filed by the original petitioner
namely the respondent No. 1 herein - Association has been dismissed as withdrawn, we do not find any good ground to entertain the present appeal.
8. The instant appeal is dismissed, accordingly. Pending application/s, if any, shall stand disposed of, accordingly.
[ Sunita Agarwal, CJ. ] [ Aniruddha P. Mayee, J. ] hiren /PC-1, RB-2&3 Page 10 of 10 Downloaded on : Fri Oct 20 20:37:13 IST 2023