Gujarat High Court
Ratandeep (Gandhidham) Owners ... vs Board Of Trustees Of The Port Of Kandla on 11 August, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11148 of 2016
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 11148 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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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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RATANDEEP (GANDHIDHAM) OWNERS ASSOCIATION & 7 other(s)
Versus
BOARD OF TRUSTEES OF THE PORT OF KANDLA & 1 other(s)
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Appearance:
MR CJ VIN(978) for the Petitioner(s) No. 1,2,3,4,5,6,7,8
MR MK VAKHARIA(1483) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 11/08/2023
ORAL JUDGMENT
1. By way of present petition, the petitioners have invoked Page 1 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined Article 226 of the Constitution of India being aggrieved by the order passed by the 5 th Additional District Judge at Gandhidham - Kachchh in Civil Misc. Appeal No.30 of 2000 on 30.05.2016 confirming the order passed by the respondent No.2 herein dated 1/3.07.2000. The petitioner No.1 herein is a Non-Trading Corporation incorporated under the provisions of the Non-Trading Corporation Act, 1959 having 68 members out of which, petitioner Nos.2 to 8 are some of its active members.
2. The brief facts germane for the adjudication of the present dispute read thus:
2.1 That, the Plot No.54, Sector 7, admeasuring 1587.67 sq.yrds in Gandhidham was allotted to one Shri Bhikhchand R. Shah for a period of 99 years by virtue of allotment letter dated 08.02.1979. The said allotment letter is duly produced at Annexure - E. Upon allotment being made, a lease deed came to be executed on 27.04.1995, which is duly produced at Annexure - D. The said plot being an open plot, the allottee, Shri Bhikhchand R. Shah intended to develop it by erecting construction on it and having got the plans sanctioned, applied to the Gandhidham Development Authority (for short 'GDA') for approval, which came to be approved by the GDA on Page 2 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined 09.03.1995. The said approval is duly produced at Annexure -
F. 2.2 Upon the plans being approved and permission being granted, Shri Bhikhchand R. Shah applied to the respondent No.1 seeking permission to transfer the property to the present petitioner. The said permission came to be granted by the respondent No.1 herein vide letter dated 05.09.1995, which is duly produced at Annexure - G. It is the case of the petitioner that the petitioner was not in unauthorized occupation of the premises and further, the petitioner was also permitted to construct on the said plot. It is not the case of the respondent No.1 that the construction was in violation of any of the plans approved by the GDA.
2.3 The petitioner started construction in accordance with the permission granted by the GDA. No objections came to be raised by the GDA in connection with the construction made by the petitioner herein. The respondent No.1 issued a Notice to the petitioner herein on 20.05.1995 and subsequent Notice dated 30.08.1996 addressed to the petitioner No.1 herein to remedy the breach, which was committed by the petitioner violating the terms and conditions as laid down in the original Page 3 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined lease deed executed by the respondent No.1 in its para 6 (g):
(i). The said breach was not remedied, which resulted in determination of lease by the respondent herein vide letter dated 05.03.1998. The subject matter thereafter, was referred to the authority appointed under the Public Premises Act who in turn ordered the premises to be vacated within 15 days of the date of publication of the order. The petitioner No.1 issued notice dated 03.11.1998 under sub-section (1) of clause (b) of sub-section 2 of Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short 'the Act, 1971).
After hearing the respective parties, the Estate Officer decided the same against the petitioner herein by order dated 1/3.07.2000 passed the orders of eviction on the ground of unauthorized occupation of the public premises. 2.4 Being aggrieved by the said order passed by the Estate Officer dated 1/3.07.2000, the petitioner herein preferred Civil Misc. Appeal No.30 of 2000 before the Court of 5th Additional District Judge, Gandhidham - Kachchh under Section 9 of the Act, 1971, which came to be dismissed by impugned order dated 30.05.2016. Being aggrieved by the order impugned dated 30.05.2016 passed by the 5th Additional District Judge, Page 4 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined Gandhidham - Kachchh, confirming the order dated 1/3.07.2000 passed by the Estate Officer, the petitioners herein have approached this Court seeking following reliefs:
"A. Your Lordships may be pleased to issue a writ of Mandamus or Certiorari or any other writ order or direction in the form of Mandamus or Certiorari or any other appropriate writ declaring the decision of the Learned 5th Additional District Judge at Gandhidham-Kachchh in Civil Miscellaneous Appeal No.30 of 2000 dated 30.05.2016 produced at Annexure C confirming the order passed by the Estate Officer on 1/3.07.2000 produced at Annexure B as illegal, arbitrary, against the provisions of law as well as colourable exercise of powers and hence be quashed and set aside.
B. Your Lordships may be pleased to issue a writ of Mandamus or Certiorari or any other writ order or direction in the form of Mandamus or Certiorari or any other appropriate writ pending admission and final disposal of this petition, the respondents be restrained from implementing the orders produced at Annexures B and C and be further restrained from realloting the Plot No.54, Sector &, Gandhidham to any person.
C. Costs of this petition may be awarded to the present petitioner.
D. Any other and/or further relief/s that this Hon'ble Court may deem fit looking to the facts and circumstances of the case may be awarded to the present petitioners."
3. Heard Mr. C.J. Vin, learned advocate appearing for the petitioners and Mr. M.K. Vakharia, learned advocate appearing for the respondents.
4. Mr. C.J. Vin, learned advocate appearing for the petitioners, submitted that the petitioner herein purchased the property-in-question from one Shri Bhikhchand R. Shah by virtue of transfer deed dated 05.09.1995 with a clear understanding of construction on the said plot. Mr. Vin, learned Page 5 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined advocate, submitted that the petitioner herein was not in unauthorized occupation of the premises and that, the petitioner was also permitted to construct on the said plot. Mr. Vin, learned advocate, submitted that it is nobody's case that the construction was not in accordance with the plans approved by the GDA. It was submitted that no grievance against the petitioner is made in connection with the construction erected by the petitioner herein. The issue therefore, cannot be of unauthorized construction also because the said exercise can only be undertaken by GDA and not the present respondent.
4.1 Mr. C.J.Vin, learned advocate for the petitioners, submitted that the respondents herein alleged that the property was to be used for residential purposes and instead of that the construction that was carried out, was for shop-cum- residential purposes. Mr. Vin, learned advocate, submitted that there are two-fold submissions in response to the aforesaid grievance raised by the respondents; (i) the lease was for a period of 99 years. Considering the long tenure of the lease, it cannot be said that the topography of property would remain the same and therefore, it would be possible to use the Page 6 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined property for residential purposes only for a century. (ii) The farmers in their wisdom had realized the change that may occur over a passage of time and hence, had framed Clause 6(g) in the lease agreement. Mr. Vin, learned advocate submitted that the said Clause 6(g) in the lease agreement states that the primary purpose of the property should be residential but may not be fully. The check was only to the construction that may give rise to annoyance, disturbance or nuisance. It was submitted that during the short span of time the construction had existed, no such situation had arisen. 4.2 Mr. C.J. Vin, learned advocate appearing for the petitioners, submitted that the petitioners were not in unauthorized occupation of the property because transfer was in their favour was approved by the respondents. It was submitted that in such circumstances, Section 4 of the Act could not have been invoked by the respondents and therefore, the Notice issued being bad in law deserves to be quashed. It was submitted that further, assuming without admitting that the notice could have been issued under Section 4, sub-section (2)(b) requires that the notices should have been issued to all the parties which includes each and Page 7 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined every member of the petitioner No.1.
4.3 Mr. C.J. Vin, learned advocate appearing for the petitioners, submitted that the Notice issued by the Estate Officer - respondent No.2 herein states the ground that reason for initiating the proceedings for eviction was that the premises was leased for residential purposes whereas, there was a shop-cum-residential complex constructed on the premises. No contention with regards to Clause 6(d) of the lease agreement was raised in the said notice. It was submitted that upon conclusion of the proceedings, the Estate Officer ordered eviction on the ground of violation of Clause 6(d) of the lease agreement. Placing reliance on the aforesaid, it was submitted that the respondent had not at any point of time demanded approved plans or permission from the petitioners and the petitioners had neither refused nor failed to comply with the same.
4.4 Mr. C.J. Vin, learned advocate appearing for the petitioners, submitted that the bone of contention of the respondents is that the property was leased for residential purposes and instead of that, the lessee constructed shop- cum-residential construction over the premises. Under such Page 8 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined circumstances, the petitioners herein cannot be said to be in unauthorized occupation of the premises but can be said to have been made unauthorized construction over the premises only to the extent of the alleged commercial construction. Mr. Vin, learned advocate, submitted that Section 5(A)(2) of the Act would be applicable to the petitioners herein and not Section 4 of the Act. Section 5(A)(2) does not provide for eviction but, it provides for removal of the unauthorized construction. It was submitted that the case before the Estate Officer and the District Court was never about the unauthorized occupation of the public premises but, it was about unauthorized construction over the public premise. It was submitted that both the forums below were misguided and centered their focus on unauthorized occupation of the premises. The orders therefore, passed by the respondents authorities below are bad in law and deserve to be quashed and set aside.
4.5 Mr. C.J. Vin, learned advocate appearing for the petitioners, submitted that there is no construction on the site as on date and the construction, that was alleged to have been carried out in contravention of the lease, got demolished in the Page 9 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined the year 2001 earthquake. There is no construction standing on the place as on date. It was submitted that the orders impugned passed by the respondent authorities have not appreciated the documentary evidences and has failed to appreciate the law in its proper perspective and hence, the decisions deserve to be quashed and the petition is required to be allowed.
5. Per contra, Mr. M.K. Vakharia, learned advocate appearing for the respondent Nos.1 and 2, submitted that the present petition relates to plot No.54, Sector 7, situated at Gandhidham-Kachchh admeasuring 1587.67 sq. meters, which was initially allotted to Shri Bhikhchand R. Shah on 99 years lease by lease deed dated 27.04.1995 and subsequently, transferred by Shri Bhikhchand R. Shah to M/s. Ratandeep (Gandhidham) Owner Association - the petitioner herein. It was submitted that the 99 years lease came to be cancelled on 05.03.1998 and therefore, the petitioners are unauthorized occupants as provided under Section 5 of the Act. It was submitted that the plot-in-question was allotted for residential use only and the purpose for which the land was leased out, has been indicated as "Residential" in allotment letter dated Page 10 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined 08.02.1979 as well as in the lease deed.
5.1 Mr. M.K. Vakharia, learned advocate appearing for the respondents, submitted that it came to the notice of the respondents that shops have been constructed on the plot-in- question and in view thereof, Notice dated 20.05.1996 was issued to the petitioner drawing attention of the petitioner that the subject plot was allotted for residential purpose as per lease deed and any change of use amounts to breach of terms and conditions of the lease deed and therefore, the petitioner herein was called upon to remedied the breach within a period of 30 days. It was submitted that since the breach was not remedied, a final show cause notice came to be issued on 20.08.1996 to show cause as to why the allotment should not be cancelled on account of failure to remedy the breach within stipulated time. It was submitted that since the breach was not remedied even then, one more Notice dated 03.11.1998 came to be issued to remedy the breach, failing which, the proceedings will be undertaken for cancellation. It was submitted that since the breach was not remedied by the petitioners, the Kandala Port Trust (Now Deendayal Port Authority) cancelled the allotment and determined the lease Page 11 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined vide letter dated 05.03.1998 and the petitioners herein were called upon to hand over vacant peaceful possession of the plot-in-question after removing/demolishing the structures standing thereon at the end of the next month; after expiry of the said month, failing which, the Port Trust would initiate the process under due course of law.
5.2 Mr. M.K. Vakharia, learned advocate appearing for the respondents, submitted that the petitioner herein though, was in receipt of the aforesaid Notices, the vacant possession of the plot-in-question was not handed over nor the structure was removed and the petitioners remain in occupation without any title or any right as unauthorized occupants. It was denied that the respondents herein have not complied with the statutory mandate of the Act. It was submitted that the proceedings were rightly conducted under Section 4 of the Act and that Section 5(A) was not applicable. Mr. Vakharia, learned advocate, submitted that the plot-in-question was allotted for residential use only and in lease deed also the purpose has been indicated as "residential". It was submitted that Shri Bhikhchand R. Shah got plan prepared and applied to GDA, which came to be approved by the GDA for shop-cum- Page 12 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023
NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined residential building. The lessee - Shri Bhikhchand R. Shah agreed to terms and conditions of the lease deed wherein, clause 6(g) thereof provided that the premises would be used for residential purpose. Subsequently, Shri Bhikhchand R. Shah transferred the plot-in-question to the present petitioners. It was submitted that the prior permission dated 05.08.1995 granted by the Kandla Port Trust, it has been clearly provided in clause (b) thereof that, the transferees shall be bound by all the covenants and conditions contained in the 99 years lease deed executed by him on 27.04.1995 and the terms and conditions of allotment and other terms and conditions prescribed by the Kandla Port Trust and therefore, be answerable to the lessor in all respect.
5.3 Mr. M.K. Vakharia, learned advocate appearing for the respondents, submitted that clause (c) of the permission dated 05.08.1995 provides that the provisions of the transfer deed to be executed by him do not in any way contravene or make repugnant the provisions of the lease referred in above mentioned clause (b). It was submitted that in view thereof, the petitioners committed breach by changing use of the land from residential purpose to residential-cum-commercial Page 13 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined purpose and therefore, proceedings were initiated by issuing notices to remedy the breach. It was submitted that by prior permission dated 05.08.1995, the transferee was bound by all the covenant and conditions contained in 99 years lease deed executed by the petitioners herein wherein more particularly, clause 6(g) provides that premises will be used for residential purpose only but the petitioners committed breach by changing the use of the land from residential purpose to residential-cum-commercial purpose and in view of the same, after issuing notices, the allotment came to be cancelled by notice dated 05.03.1998. It was submitted that the transfer deed, duly produced at Annexure- H, also provides that the transferee at all times till the subsistence of the said lease, be answerable, observed and perform all the covenants and conditions contained in the said lease deed. 5.4 Mr. M.K. Vakharia, learned advocate appearing for the respondents, submitted that the petitioners herein took approval from GDA, which is a separate entity, which has no concern with Deendayal Port Authority. It was submitted that the petitioners have to take approval from the GDA for plans as per terms and conditions of 99 years lease deed but, the Page 14 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined petitioners failed to do so and committed breach of the terms and conditions of the lease deed. It was submitted that it is the duty of the GDA to approve the plans of the parties which are submitted to them wherein, the Port Trust does not come in picture in any way but at the same time, the lessee is strictly bound by the terms and conditions of the lease deed executed between the respective parties.
5.5 Mr. M.K. Vakharia, learned advocate appearing for the respondents, submitted that the petitioners herein were called upon by registered notice dated 03.11.1998 to show cause on or before 18.11.1998 as to why an order of eviction should not be passed. On 18.11.1998, Shri B.R. Shah attended the proceedings on behalf of the petitioners and requested for time to file reply. On the next date of hearing on 18.12.1998, Shri Tarachand B. Shah attended the proceedings on behalf of the petitioners and the whole proceedings were attended by him and the appeal before the District Court was also attended by him regarding eviction proceedings. Placing reliance on the aforesaid submissions, it was submitted that the orders impugned are passed by the respondent authorities in presence of the petitioners wherein, the petitioners were Page 15 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined sufficiently represented as referred above. It was submitted that the orders impugned passed by the respective authorities are concurrent findings of fact and on the sole ground, the petition deserves to be dismissed.
5.6 Mr. M.K. Vakharia, learned advocate appearing for the respondents, submitted that the District Court has appreciated the overall facts and circumstances of the case and it is erroneously suggested by the petitioners that the District Court only followed the observations of the respondent No.2. It was submitted that after the order dated 08.07.2022, the Executive Engineer (TD) & Encroachment Cell (I/c), Deendayal Port Authority along with A.E. (Civil) E.I. and Mangrove Chowkidars of Estate Department, Deendayal Port Authority, physically entered in the plot-in-question and took back the possession of the open plot (part of the premises) on 14.07.2022 at 15:00 hours in pursuant to and in compliance with the order dated 30.05.2016 passed by the District Court and Eviction order dated 1/3.07.2000 passed by the Estate Officer. It was submitted that final notices dated 20.07.2022 were given to the shop owners to remove the illegal and unauthorized structure within 7 days, failing which, the Port Authority would Page 16 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined remove the encroachment from above plots and recover the possession of the land.
5.7 Placing reliance on the aforesaid facts, Mr. Vakharia, learned advocate, submitted that considering that the petitioners herein being in unauthorized possession of the property-in-question and the lease having been cancelled by the respondent authority on 05.03.1998, no interference is called for in the orders impugned passed by the respondent authorities by invoking Article 226 of the Constitution of India.
6. At this stage, it is apposite to refer to:
(i) Section 2(g) of the Act, 1971, which reads thus:
(g) "rent" in relation to any public premises, means the consideration, payable periodically for the authorised occupation of the premises and includes-
(i) any charge for electricity, water or any other services in connection with the occupation of the premises;
(ii) any tax (by whatever name called) payable in respect of the premises, where such charge or tax is payable by the State Government or the Corporate authority."
(ii) Section 2(h) of the Act, 1971, which reads thus:
(h) "unauthorised occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
(iii) Section 4 of the Act, 1971 reads thus: Page 17 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined
"4. Issue of notice to show cause against order of eviction.-(1) If the competent officer is satisfied-
(a) that the person authorised to occupy any public premises has-
(i) not paid rent lawfully due from him in respect of such premises for a period of more than two months, or
(ii) sub-let, without the permission of the State Government or, as the case may be, the corporate authority, the whole or any part of such premises, or
(iii) committed, or is committing such acts of waste as are likely to diminish materially the value, or impair substantially the utility, of the premises, or
(iv) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or
(b) that any person is in unauthorised occupation of any public premises, or
(c) that any public premises are required for any other purpose of the State Government, or, as the case may be, the corporate authority to whom such premises belong, the competent officer shall, notwithstanding anything contained in any other law for the time being in force 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
(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, a claim interest in the public premises, to show cause, if any, against the proposed order on or before such date as may be specified in the notice, being a date not earlier than ten days from the date of issue thereof.
3. The competent officer shall cause the notice to be served by post or 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.
4. Where the competent officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of sub-section (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed.
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5. If any person, makes an application to the competent officer for extension of the period specified in the notice, the competent officer may grant the same on such terms as to payment and recovery of the amount claimed in the notice, as it deems fit."
7. At this stage, it is also apposite to refer to ratio as laid down by the Hon'ble Supreme Court in case of Sarvepalli Ramaiah (Dead) as per legal representatives & Ors. Vs. District Collector, Chittoor District & Ors. reported in (2019) 4 SCC 500, wherein it has held as under:
"41. In this case, the impugned decision, taken pursuant to orders of Court, was based on some materials. It cannot be said to be perverse, to warrant interference in exercise of the High Court's extra ordinary power of judicial review. A decision is vitiated by irrationality if the decision is so outrageous, that it is in defiance of all logic; when no person acting reasonably could possibly have taken the decision, having regard to the materials on record. The decision in this case is not irrational.
42. A decision may sometimes be set aside and quashed under Article 226 on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise.
43. Judicial review under Article 226 is directed, not against the decision, but the decision making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in 20 appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact."
Analysis:-
8. Heard the learned advocates appearing for the respective parties. The undisputed facts that emerge for the consideration of this Court read thus:
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NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined 8.1 One Shri Bhikhchand R. Shah entered into the 99 years lease agreement with the respondent No.1 for Plot No.54, Sector 7, admeasuring 1587.67 sq. Yrds., for which allotment letter came to be issued on 08.02.1979. The said allotment letter is duly produced at Page 74 to the petition. After the said allotment, a lease deed was executed after 16 years on 27.04.1995 between Shri Bhikhchand R. Shah and the respondent No.1 herein for the said plot. The said lease deed is duly produced at Annexure - D, page 50 to the petition.
Thereafter, Shri Bhikhchand R. Shah transferred the said plot to M/s Ratandeep (Gandhidham) Owners' Association i.e. the petitioner No.1 herein. In the prior permission dated 05.08.1995 granted by the respondent No.1- Trust, it has been clearly indicated that the transferee shall be bound by all the covenants and conditions contained in the 99 years lease deed executed by Shri Bhikhchand R. Shah on 29.05.1995 and the terms and conditions of the allotment and other terms and conditions prescribed by respondent - Trust and the transferee was answerable to the lessor in all respects. It is apposite to refer to relevant clauses of the said lease dated 27.04.1995 entered into between Shri Bhikhchand R. Shah and the Page 20 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined respondent No.1 herein, which read thus:
"6. The Lessee covenants with the Lessor as follows (that is to say):-
(c) Within the period of twenty four calendar months from the said twentieth day of September nineteen hundred seventy eight 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) the Lessee shall and will at his own expense erect upon the demised premises cover in and complete in a substantial and work-
manlike manner a building to the satisfaction of the said Chairman 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 design respectively as shall have been prescribed and/or approved of in writing by the Chairman.
(i) 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 arranged in such manner as shall have been previously proposed and submitted by the Lessee to the Gandhidham Development Authority and/or any other competent Local Authority.
(d) The Lessee shall furnish to the Chairman, Kandla Port Trust, or such officer as may be appointed by him in this behalf, a copy of the plan of the building to be built upon the demised land before he starts construction thereon, duly approved by the Gandhidham Development Authority or any other competent local authority.
(g) The Lessee will use the premises primarily for residential purpose and consistently with the requirements of residential 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.
(k) The Lessee will on the determination of the lease peaceably yield up to the Lessor the said demised premises and the buildings thereto appertaining upto the Lessor.
(I)(A) The Lessee shall not assign, sublet, transfer or otherwise part with the demised premises without prior permission in writing from the Chairman or such officer or body as the Lessor may authorize in this behalf and if such permission be given all assignees and transferees and the heirs of the Lessee shall be bound by all the covenants and conditions herein contained and be answerable therefore to the Lessor in all aspects.
7. If there shall at any time have been in opinion of the Lessor or the Chairman whose decision shall be final, any breach by the Lessee or by any person claiming through or acting under him of any of the covenants or conditions contained in sub-Clausesd), (h) and (i) of Page 21 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined clause 6 above and if the said Lessee shall neglect or fail to remedy any such breach to the satisfaction of the Chairman within one month from the receipt of a notice signed by the Chairman requiring him to remedy such breach it shall be lawful for the officers and workmen acting under the authority and direction of the Chairman to enter upon the premises hereby demised and respectively (a) to remove or demolish any unauthorized alterations in or additions to the buildings erected on the demised, premises (b) to remove or demolish any buildings erected on the demised premises without the previous consent in writing of the Chairman or duly authorized officer as aforesaid (c) to fill any excavations or carry out any repairs that may be necessary: and all such moneys and expenses as may be paid out and incurred by the Lessor or by his order while acting hereunder shall be paid by the Lessee: and it is hereby expressly declared that exercise of powers hereunder given to the Lessor in this behalf, shall not preclude him from taking any action under clause 8.
8. The Lessor may in case of a 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 ener on the demised premises of any part thereof in the name of the whole and retake possession of the demised premises and any structures, buildings and construction or whatsoever nature standing thereon; and in that case all the payments made previously and deposits paid by the Lessee shall be forfeited and the Lessee shall not be entitled to any compensation by way of refund of any part of the lumpsum development charges, paid hereunder or any outgoing paid by him in this behalf or by way of any damages for any loss of property or business suffered by him provided however.
10. Not withstanding anything contained in clause 7 and 8 hereabove, the Lessor or the Chairman reserves absolute right to revoke any order of determination of the lease deed passed by him for any reason whatsoever and to maintain status quo within three months of the order of such determination on such terms and conditions, as he may deem fit in circumstances of each case.
(ii) Provided further that the Chairman, Kandla Port Trust may in his absolute discretion waive or dondone breaches of this deed to the extent determined by him and may also condone partially or fully the recovery of extra dues in the form of interest, compensation etc. as may be determined by him in his discretion.
14. The expression 'Chairman, Kandla Port Trust' or 'Chairman' wherever used is this covenants shall be deemed to include any other officer or authority (specifically or generally) appointed from time to time in this behalf by the Government of India." 8.2 The petitioners herein changed the use of the land from Page 22 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined residential purpose to residential-cum-commercial purpose. The GDA approved the plan and permission for the same came to be granted on 09.03.1995, duly produced at Annexure - F, Page 78.
8.3 The petitioner on receipt of such permission on 09.03.1995, erected shop-cum-residences on the aforesaid plot-in-question. It came to the knowledge of the respondent No.1 that the petitioners herein were in breach of the condition of the lease deed and issued notices dated 20.5.1996 and 30.08.1996 to the petitioners to facilitate to remedy the breach. Since the breach was not remedied by the petitioners herein, a Final Notice dated 3.11.1997 came to be issued to the petitioners herein. Since, the petitioners failed to remedy the breach, the allotment came to be cancelled by the respondent No.1 vide notice dated 05.03.1998 and the petitioners were called upon to handover peaceful possession of the plot-in-question after removing/demolishing the standing structure at the end of the next month after expiry of the said month, failing which, the respondent No.1 would initiate the proceedings in accordance with law.
8.4 The petitioners chose not to handover the vacant Page 23 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined possession of the plot-in-question nor removed the structure and remained in occupation without any right or title as unauthorized occupants. The petitioners having not complied with the statutory notices issued by the respondent authority, the respondent authority initiated proceedings under Section 4 of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short 'the Act'). The notice dated 03.11.1998 passed by the Estate Officer - respondent No.2 under Section 4 of the Act, is duly produced at page 12. 8.5 The respondent No.2 in exercise of the powers conferred under Section 5 of the Act and by order dated 1/3-7-2000 ordered that the petitioner association and all persons, who may be in occupation of the said premises, to vacate the premises within 15 days from the date of publication of the said order, failing which, appropriate action would be taken for non-compliance of the order. The operative part of the said order reads thus:
"Senior Estate Manager, K.P.T. in his arguments has stated that, Sector 7 of Gandhidham is a residential Sector. Plot No. 54, Sector 7 has been offered on lease basis for "residential purpose", as specifically indicated in the Offer of Allotment dated 8/2/1979 to Shri Bhikhchand R. Shah, the then allottee who has accepted the said offer and remitted the charges of the plot and took possession of the land. Thereafter, a lease deed has been executed by and between the lessor i.e. Kandla Port Trust and lessee i.e. Shri Bhikhchand R. Shah. The lessee agreed to the terms and conditions of the lease deed under clause 6(ii)(g) that the premises will be used for residential purpose.Page 24 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023
NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined Thereafter, Shri Bhikhchand R. Shah transferred the plot to M/s Ratandeep (Gandhidham) Owners' Association. In the prior permission dated 5/8/1995 granted by Kandla Port Trust, it has been clearly indicated that the transferee shall be bound by all the covenants and conditions contained in the 99 years lease deed executed by him on 29/5/1995 and the terms and conditions of the allotment and other terms and conditions prescribed by Kanda Port Trust and the transferee will be answerable to the lessor in all respects. M/s. Ratandeep (Gandhidham) Owners' Association committed breach by changing use of the land from the residential purpose to residential- cum-commercial purpose. Hence, notices to remedy the breach were issued to the party on 20/5/1996 and 30/8/1996. Since, the breach was not remedied by the lessee, a Final Notice dated 3/11/1997 was issued to the Party. Since, the party failed to remedy the breach, the allotment has been cancelled vide notice dated 5/3/1998.
He has further period pointed out that the Respondent had not denied the fact that the premises has been leased out for residential purpose as has been specifically indicated in the lease deed. The respondent has also not proved that the Lessor had granted any specific permission to them allowing "Change of Use of Land". Further, in the said reply, the Respondent had not denied about issuance of notices by the petitioner informing abut the breach committed by them and also giving opportunities to the Respondents to remedy the breaches and that the Respondent had committed breach of the terms and conditions of allotment, agreed terms of lease deed and failed to remedy the breach inspite of opportunity given to him, as a result of which the allotment has been cancelled and lease determined.
I have also gone through the Ninety Nine Years' Lease Deed entered into between Kandla Port Trust and Shri Bhikhchand R. Shah and Clause 6(g) reads as under :
"The Lessee will use the premises primarily for residential purpose and consistently with the requirements of residential 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 Townhip of Gandhidham."
Moreover, Even if the contention of Respondent is taken into account that the G.D.A. has approved the plan, there is no doubt about the G.D.A. as having been approved the plan of the Assocation. Moreover, as per Clause 6(d) of the lease deed, the Lessee shall furnish to the Chairman, Kandla Port Trust, or such officer as may be appointed by him in this behalf, a copy of the plan of the building to be built upon the demised land before he starts construction thereon, duly approved by the Gandhidham Development Authority or any other competent local authority. Since the Assocation has already taken approval of G.D.A., it ought to have submitted the same as per the terms and conditions of 99 Years' Lease Deed. But, they have failed to do so. Under such circumstances, the petitioner has breached the terms and conditions of the Lease Deed. Further more, the G.D.A. is a separate entity which has got no concern with the K.P.T. and it is the Page 25 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined duty of the G.D.A. to approve the plans of the parties which are submitted to them strictly in conformity with the purpose for which, the plot has been allotted and highlighted in the Lease Deed as well as in allotment letter. In case if they fail to do so, they do it on their risk and cost and K.P.T. does not come in picture in any way and on the other hand, the lessee is bound by the terms and conditions of the Lease Deed executed between them and Kandla Port Trust.
I also do not agree with the arguments of the Respondents that E.M.(I/C) has no powers to determine the lease and cancel the allotment. E.M. has been delegated with the powers by the Chairman, K.P.T. to determine or cancel any lease deed. Therefore, any person who works as Estate Manager whether In-Charge or regular is deemed to be authorized for such purpose.
Moreover, after having received cancellation letter, the Association has not remedied the breach and therefore, the lease was cancelled.
In view of the above, I conclude that the cancellation order issued by the Estate Manager, Kandla Port Trust is in order.
Now, therefore, in exercise of the powers conferred on me under Sub-Section(1) of Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, I hereby order the said M/s. Ratandeep (Gandhidham) Owners' Association and all persons who may be in occupation of the said premises or any part thereof to vacate the said premises within 15 days of the date of publication of this order. In the event of refusal or failure to comply with this order within the period specified above, the said M/s. Ratandeep (Gandhidham) Owners' Association and all other persons concerned are liable to be evicted from the said premises, if need be, by the use of such force as may be necessary.
SCHEDULE Land admeasuring 1587.67 sq. yards situated at Plot No.54, Sector No.7, Gandhidham.
Bounded on the North by Road Bounded on the South by Road Bounded on the East by Plot No.55, Bounded on the Wesr by Plot No.53."
8.6 Being aggrieved by the aforesaid order passed by the respondent No.2 dated 1/3-7-2000, the petitioners herein preferred an appeal before the District Court by preferring Civil Misc. Appeal No.30 of 2000 under Section 9 of the Act, which Page 26 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined came to be dismissed by order impugned dated 30.05.2016, passed by the 5th Additional District Judge, Gandhidham - Kachchh, confirming the order dated 1/3-7-2000 passed by the Estate Officer of the respondent No.2. Paragraphs 3 and 15 of the said order dated 30.05.2016 reads thus:
"3. In view of the above, the following points arises for determination of the present appeal :
(1) Whether the order of Estate Officer under the Public Premises (Eviction of Un-authorized Occupants) Act, 1971 is just, legal and proper ?
(2) What order ?
15. From the above discussion, it is clear that, prior to initiation of eviction proceedings the respondents - Kandla Port Trust has issued notice for breach of condition by getting permission from Gandhidham Development Authority to construct commercial and residential building in contravention of lease deed Clause (g) page No. 4 of mark 3/2 that provides only for residential purpose that have not been remedied during one month time granted thereafter present eviction proceedings were initiated by issuing show cause notice that how KPT has come to know about commercial and residential permission granted provided with evidence and form very beginning the appellants were present during the proceedings hence opportunity has not been granted to lead the evidence or to put up the case or appellants were not informed about the cause is not sustained. The KPT has given an opportunity to remedied the permission sought commercial as well as residential by taking only residential permission from GDA, as agreed in the Lease Deed with KPT by the appellants. Hence, there is no substance in the present appeal. Hence, I reply issue No. 1 in affirmative and pass the following order :
ORDER (1) The present appeal is hereby dismissed.
(2) The order dated 01/03-07-2000 passed by the Estate Officer of Kanlda Port Trust is hereby confirmed.
(2) No order as to costs.
Pronounced today on 30th May, 2016 in the open Court."
9. In the aforesaid set of facts, this Court has considered the Page 27 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined orders impugned passed by the respondent authorities. In the opinion of this Court, the petitioner herein stepped into the shoes of Shri Bhikhchand R. Shah and the petitioners herein are bound by the terms and conditions of the lease executed between Shri Bhikhchand R. Shah and the respondent No.1 - Trust.
9.1 Clause 6(2)(g) of the said lease, as referred above, stipulates that the premises primarily be used for residential purpose. Clause 6(d) of the said lease provides that the lessee shall furnish to the Chairman of the Kandla Port Trust or such officer as may be appointed by him in this behalf, a copy of the plan of the building to be built upon the demised land before he starts construction thereon, duly approved by the Gandhidham Development Authority or any other competent local authority. Considering the fact that the petitioner herein had procured the approval of GDA, the petitioner ought to have submitted the same as per the terms and conditions of 99 years lease deed to the respondent No.1 but, the petitioners herein chosen not to comply with the said conditions. Under such circumstances, in the opinion of this Court, the petitioner has breached the terms and conditions of Page 28 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined the lease deed.
9.2 Further, as referred above, though the notices dated 20.05.1996 and 30.08.1996, came to be issued to the petitioners herein to cure the breach, the petitioners chose not to cure the breach and in view thereof, respondent No.1 cancelled the allotment vide communication dated 05.03.1998. Thereafter, the respondent No.1 initiated proceedings under the Act, 1971 and after granting due opportunity of hearing to the petitioner herein and following due process of law, the orders impugned came to be passed by the respondents authorities.
10. The respondents having considered the aforesaid, passed an orders upholding the notices issued by the respondent No.2 under Section 4 of the Act in view of breach of the conditions of the lease deed, as referred above. It is undisputed that though, notices having been issued to the petitioners from time to time, the petitioners have chosen not to complied with the said notices. The first three notices, as referred above, came to be issued for the change of use undertaken by the petitioners herein and the petitioners were granted ample opportunity to cure the said breach however, having not Page 29 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined complied with the same, the respondent authority cancelled the lease by communication dated 05.03.1998 having invoked Section 4 of the Act.
11. Pursuant to the Notice, which is duly produced at page 12 to the petition, the order came to be passed under Section 5(1) of the Act. The petitioners appeared and were duly represented by the authorized representative wherein, while passing the order under Section 5 of the Act, the competent Authority came to the conclusion that the petitioner was required to be evicted considering the breach of clauses 6(g) and (f) of the lease deed. The petitioners herein also preferred appeal being Civil Misc. Appeal No.30 of 2000 challenging the said order wherein, the said clauses were also taken into consideration while passing the final order. In view thereof, the petitioners herein were aware that there was alleged breach of the conditions of the lease deed in the proceedings which were undertaken.
12. At this state, it is apposite to refer to the order dated 08.07.2022 passed in the present petition, which reads thus:
"1. It is shocking to note that the matter, which was registered on 07.07.2016, was only listed once on 03.08.2016 and thereafter, it has been lying before the Registry without there being any cognizance Page 30 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined taken by this Court. It is further shocking to note that though the learned 5th Additional District Judge, Gandhidham has passed an order dated 30.05.2016 in Civil Misc. Appeal No.30 of 2000, whereby confirming the order dated 01/03.07.2000 passed by the Estate Officer, Kandla Port Trust, no action has been taken till today.
2. Learned advocate Mr.Vakharia has submitted that the authorities did not think fit to take any action because the matter was pending.
3. Thus, the respondent authority appears to have been acted hand in glow with the petitioners since the matter has been lying as such in dormant state from the year 2016 and even during the intervening period, no efforts are made either by the petitioners or by the respondent authority to get the matter listed. No efforts are made by the respondents to see that the order dated 01/03.07.2000 passed by the Estate Officer, Kandla Port Trust is implemented.
4. The respondents are directed to file an affidavit explaining such conduct of their officers. The affidavit shall specifically state the efforts made by the respondents if any, for implementing the order dated 01/03.07.2000. The affidavit shall further also state that why for all these years, the order passed by the Estate Officer has not been implemented since the Court in the said petition has not even issued notice to the other side. Such affidavit shall be filed on or before the next date of hearing. The matter is kept on 25.07.2022.
5. A responsible officer of the respondent-Board shall remain present on that day. It is further clarified that, if it is found that the impugned order dated 01/03.07.2000 is not complied only because of the pendency of this petition, a serious view will be taken against such officer and the respondent no.1."
12.1 Pursuant to the aforesaid order dated 08.07.2022, the respondent No.1 herein has filed the affidavit-in-reply which is duly produced at page 97 to the petition. It is relevant to refer to paragraphs 7 and 8 of the said affidavit, which read thus:
"7. I say and submit that after passing of the order dated 08.07.2022 in the present proceedings, the Executive Engineer (TD) & Encroachment Cell (I/c), Deendayal Port Authority (formerly known as Kandla Port Trust) along with A.E. (Civil) E.I. and Mangrove Chowkidars of Estate Department, Deendayal Port Authority, Physically entered in the plot in question and took back the possession of the open Plot (Part of the premises) on 14.07.2022 at 15:00 hours in pursuant to order dated 30.05.2016 of the District Court and Eviction order dated 03.07.2000 of the Estate Officer. I state and submit that final notices Page 31 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined dated 20.07.2022 were given to the shop owners to remove the illegal and unauthorized encroachment (structure) standing within seven days failing which port authority will remove the encroachment from above plots and recover the possession of the land. The copy of the Notices dated 20.07.2022 are annexed herewith and marked as ANNEXURE-T-3(COLLY.).
8. In view of what has been stated hereinabove, at the cost of repetition, I respectfully say and submit that only with a view to avoid the identical situation that present respondents have taken over the possession of the premises in question though the matter is at large and pending adjudication before this Hon'ble Court and also with a view to avoid any harsh or adverse order against the present respondents, present respondent deemed it fit not to take over the possession of the premises in question at that relevant point of time but subsequently now on 14.07.2022, the vacant part possession has been taken over by the respondent authority of the land-in-question."
13. Considering the aforesaid, final Notices dated 20.07.2022 have also been issued to the shop owners to remove the unauthorized encroachment (structure) standing within seven days, failing which, the Port Authority would remove the encroachment from the above plots and recover the possession of the land.
14. It is apposite to refer to ratio as laid down by the Hon'ble Supreme Court in case of Hari Prakash Shukla & Ors. Vs. State of Uttar Pradesh & Another, reported in 2023 SCC Online SC 773, wherein it has held as under:
"16. II. Whether the High Court, while exercising its jurisdiction under Article 226 of the Constitution of India, could have re-appreciated the evidence adduced to come to its findings?
26. This Court, in a catena of judgments has held that the High Court, while exercising its inherent powers under 226 of the Constitution of India, cannot re-appreciate evidence and arrival of finding of facts, unless the authority which passed the original order did so in excess of Page 32 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined its jurisdiction, or if the findings were patently perverse.
27. In the case of BK Muniraju Vs. State Of Karnataka3 , this Court, while expounding on the powers of the High Court under Article 226 of the Constitution of India, held that the same cannot be used to reappreciate evidence unless an error of fact appraised by the lower court is manifest and such an error has caused grave injustice.
28. Further, in the case of Krishnanand Vs. Director of Consolidation4 , this Court, in a similar fact circumstance wherein concurrent findings of the lower courts were dismissed by the High Court while exercising its writ jurisdiction, held that re-appreciation of evidence under Article 226 can only be done in cases where the original order by the lower court was passed in excess of its jurisdiction or if the findings of the lower courts were patently perverse.
29. It is our opinion that as far as the present case is concerned, the concurrent findings of the lower courts are neither perverse, nor the said courts have over stepped their jurisdiction. In such a scenario, wherein neither of the conditions were satisfied, the High Court could not have re-appreciated the evidence in writ jurisdiction and come to a different conclusion."
15. Considering the aforesaid, in the opinion of this Court, the respondent authorities have followed the due procedure under the Act, 1971 and have passed the orders impugned. Both the authorities have concurrently held against the petitioners herein and directed the petitioners to vacate the premise-in- question within a period of 15 days from the publication of the said order.
16. Considering the aforesaid position of law, once the Court of competent jurisdiction on the basis of the evidence and material available on record concluded that the petitioners are not entitled to the reliefs, as prayed for, this Court is not inclined to interfere with the said findings arrived at Page 33 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined concurrently by the respondent authorities. In light of the findings recorded by the respondent No.1 and respondent No.2 respectively showing that the premise is a public premise and the petitioner is an unauthorized occupant under Section 2(h) of the Act on the said premises, interference by this Court is not warranted.
17. In view of the aforesaid position of law and the facts of the present case, in absence of any malafide, perversity in passing the impugned orders and the respondent authorities, having followed due process of law, this Court is not inclined to exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India.
18. In the result, the petition fails and is hereby dismissed.
(VAIBHAVI D. NANAVATI,J) ORDER IN CIVIL APPLICATION NO.1 OF 2016
1. By way of present civil application, the applicants herein have prayed for the following reliefs:
"(a) Your Lordships may be pleased to allow the present civil application by permitting the applicants to join as party respondents in Special Civil Application No.11148 of 2016.
(b) Such other and further reliefs as deemed just and expedient be Page 34 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined granted."
2. The applicants herein are claimed to be owners and occupiers of the shops (for short 'subject premises') allotted by letters and share certificates by the respondent No.1. It is the case of the applicants that the respondent No.10 issued a notice dated 03.11.1998 to the respondent No.1 under Section 4 of the Act calling upon to show cause as to why an order of eviction should not be passed and thereafter, the respondent No.10 passed an order dated 1/3.07.2000 under Section 5 of the Act and ordered that the respondent No.1 and all other persons, who may be in occupation of the said premises or any part thereof, to vacate the said premises within 15 days from the date of publication of the said order. On failure or to comply with the said order, the respondent No.1 and all other persons were held liable to be evicted from the said premises, if needed, by force.
2.1 The applicants came to know that the respondent No.1 challenged the said order dated 1/3.07.2000 passed by the respondent No.10 by filing an appeal under Section 9 of the Act, which came to be dismissed by order dated 30.05.2016 passed by the 5th Additional District Judge, Gandhidham - Page 35 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023
NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined Kachchh in Civil Misc. Appeal No.30 of 2000 and which is the subject matter of challenge in the Special Civil Application No.11148 of 2016.
3. Ms. Mini Nair, learned advocate appearing for the applicants, submitted that the applicants herein are the necessary parties and placed reliance on Section 4 of the Act which stipulates that it is mandatory on the part of the respondent No.10 to issue Notice to all the persons concerned. The applicants herein being owners and occupiers of the subject premises before the issuance of Notice dated 03.11.1998, it was incumbent for the applicants herein to comply with Section 4 of the Act scrupulously and therefore, in absence of such notices issued to the applicants herein, the orders impugned which are under challenge in the captioned petition, would adversely affect the applicants herein and therefore, the present civil application seeking joining of party, be allowed.
3.1 Ms. Mini Nair, learned advocate appearing for the applicants, also placed reliance on the following authorities:
(a) AIR 1958 SC 886
(b) AIR 1992 Bombay 375
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(c) 1969 (3)SCC 415
(d) AIR 2008 SC 876
4. At this stage, it is apposite to refer to Section 2(h) of the Act, which reads thus:
(h) "unauthorised occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
5. Considering the aforesaid submissions advanced by the learned advocate appearing for the applicants and the provisions of law, in the facts of the present case, the proceedings-in-question under Section 4 of the Act came to be initiated by the respondent No.10 on 03.11.1998. The appellate authority passed the impugned order in the year 2016. It is the case of the applicants that the applicants herein are owners and occupiers of the subject premises since the year 1998. The applicants were aware of the proceedings which were ongoing between the parties i.e. the respondent No.1 and respondent No.10. The applicants herein are fence- sitter having waited for the order to be passed by the appellate authority. Once the order dated 30.05.2016 came to be passed, which was adverse to the respondent No.1- original Page 37 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined petitioner, the applicants herein approached this Court by way of present civil application for joining themselves as parties in the present proceedings. The respondent No.1 also having transferred the said shops in the names of the applicants herein, did not bring it to the notice of the competent authorities in the entire proceedings which were undertaken between the period of 2000 - 2016. Further, the application is also silent with regard to date of knowledge as to when the applicants came to know about the ongoing proceedings by the respondent No.1 and respondent No.10.
6. In view thereof, the application filed by the third parties claiming to be joined as parties in the proceedings, at this stage, in the opinion of this Court, does not require consideration in view of the fact that the applicants are claiming through original allottee whose occupation is held to be unauthorized and under the law, the original allottee is a trespasser and therefore, owners and occupiers holding the subject premises are also in unauthorized occupation/trespassers under the meaning of Section 2(h) of the Act. Even otherwise, the subsequent notices have been issued on 20.07.2022 to the applicants herein by the Page 38 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023 NEUTRAL CITATION C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023 undefined respondent authority seeking vacant possession of the subject property. Considering the aforesaid, the authorities as relied upon by Ms. Nair, learned advocate appearing for the applicants, are not applicable in the facts of the present case.
6. In the result, since the main matter being Special Civil Application No.11148 of 2016 is dismissed, the present civil application also fails and is hereby dismissed.
(VAIBHAVI D. NANAVATI,J) NEHA Page 39 of 39 Downloaded on : Sun Sep 17 01:15:35 IST 2023