Gujarat High Court
Mukundsing Yadav vs Major Jogendrasing Z. Yadav And Anr. on 30 October, 1991
Equivalent citations: (1994)1GLR708
JUDGMENT J.N. Bhatt, J.
1. This petition is directed against the judgment and order passed by the learned Joint District Judge, at Rajkot, in Civil Appeal No. 170 of 1971, on 20-12-1982, by invoking the aids of Article 227 of the Constitution of India.
2. Material facts giving rise to the present petition, may, shortly be stated, so as to appreciate the merits of the petition and challenge against it.
3. Respondent No. 1 herein was allotted Block No. 220 of the flat constructed, on Kalavad Road, at Rajkot, under the M.I.G. scheme of the Gujarat Housing Board ("GHB" for short), on 1-4-1971. Respondent No. 1 made an application, on 24-5-1976, to the Estate Manager of GHB and requested for grant of permission to lease the aforesaid premises to the petitioner on the ground of his transfer. Pursuant to that request, the GHB granted permission to lease the aforesaid premises for a period of one year by letter dated 3-7-1976.
4. The Estate Manager of the G.H.B. had thereafter issued a notice under Section 4 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 ("Gujarat Public Premises Act" for short hereinafter), to the petitioner and respondent No. 1, calling upon them to show cause as to why eviction proceedings should not be taken. In response to the said notice, respondent No. 1, inter alia, contended that he was given permission by the Estate Manager to grant the premises to the petitioner, on lease, for a period of one year. Respondent No. 1 further contended that he has paid instalments and penalty due to the G.H.B. It was also the case of respondent No. 1 that as he was transferred to Bhagalpur, it was not possible for him to reside, at Rajkot, and by letter dated 27-2-1978 he had asked the petitioner to vacate the premises and requested the G.H.B. to get possession from the petitioner.
5. The petitioner, in response to the show cause notice, inter alia, contended before the Competent Authority that respondent No. 1 did not want to reside in the premises and that respondent No. 1 he had paid instalments and deposits on behalf of respondent No. 1. The petitioner further contended that he was residing with his family in the aforesaid premises and that he has become a tenant of the same.
6. The Competent Authority, by letter dated 7-7-1981, held that respondent No. 1 has not committed breach of any of the terms and conditions of hire-purchase agreement and, therefore, the notice issued against respondent No. 1 came to be quashed. However, the Competent Authority was pleased to hold that the possession of the petitioner in respect of the aforesaid premises was unauthorised after the period of lease of one year expired and, therefore, an order for eviction came to be passed against the petitioner, on 7-3-1981.
7. Being aggrieved by the said judgment and order passed by the Competent Authority on 7-3-1981, the present petitioner preferred an appeal, being Civil Appeal No. 170 of 1981, in the Court of the District Judge, at Rajkot. On hearing both the sides, the learned Joint District Judge, at Rajkot, was pleased to dismiss the appeal. Thus, the order passed by the Competent Authority came to be confirmed by the learned Joint District Judge, at Rajkot, in appeal, on 20-12-1982.
8. Being dissatisfied by the said judgment and order passed by the learned Joint District Judge, at Rajkot, the appellant therein has come up before this Court challeng9ing the legality and validity of the impugned order, by invoking the aids of the provisions of Article 227 of the Constitution of India.
9. Before the merits of the matter are examined, it would be expedient and pertinent to mention that the jurisdictional sweep of this Court is very much circumscribed in a petition under Article 227 of the Constitution, and unless and until illegality, gross perversity or misreading of evidence is successfully, pointed out or spelt out, this Court shall be loath to interfere with the findings of facts arrived at by the authority below or Court below.
10. Having heard the learned Counsels for the parties, this Court is of the opinion that there is no merit in the present petition under Article 227 of the Constitution.
11. Mr. Nanavati, learned Counsel for the petitioner, has raised the following two contentions:
(1) That the petitioner cannot be evicted by the Competent Authority under the Gujarat Public Premises Act.
(2) That the notice of eviction is not in confirmity with the provisions of Section 4(2)(a) of the Gujarat Public Premises Act.
12. The aforesaid two contentions are, vehemently, resisted by the learned Counsel, Mr. Bhatt, for respondent No. 1. Respondent No. 2 is served.
13. In so far as the first contention, as aforesaid, is concerned, it may be mentioned that the provisions of Section 2(h) of the Gujarat Public Premises Act are required to be considered. Section 2(h) provides the definition of the expression "unauthorised occupation", which reads as under:
2. (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.
It is obvious from the plain parusal of the aforesaid definition of "unauthorised occupation" that it includes the continuance in occupation by any person of the public premises after the authority under which he was allowed to occupy the premises has expired. In the present case, respondent No. 1 was authorised by the Competent Authority to lease out the premises in question to the petitioner for a spell of one year only. It is not in dispute that the petitioner was inducted as a tenant for a period of one year by respondent No. 1 in the disputed premises after obtaining permission from the Competent Authority under the Act. The petitioner continued in the premises even after expiry of the period of one year. Respondent No. 1 desired to get extension for one year more. But the Competent Authority had not granted the permission. Obviously, therefore, the possession of the petitioner, which is referable from the inception to a limited permission would be characterised as unauthorised, on expiry of the period of one year. Permission was granted by the Competent Authority upto 3-7-1977. The flat was allotted to respondent No. 1 on 1-4-1971. Permission for leasing out the premises was granted by the Competent Authority to respondent No. 1, for a period of one year on the ground of his transfer as he being in service under the armed force, which is a transferable post. Pursuant to the permission granted by the Competent Authority, respondent No. 1 inducted the petitioner in the premises as a tenant.
14. Since the permission for continuance of the petitioner in the" disputed premises, as a tenant, beyond the period of one year was not granted, possession of the petitioner would be unauthorised, as defined in Section 2(h) of the Gujarat Public Premises Act. Learned Counsel Mr. Bhatt, for respondent No. 1 has also placed reliance on a decision of the Apex Court of the land, rendered in the case of Ashok Marketing Ltd. v. Punjab National Bank reported in AIR 1991 SC 855. The ratio propounded in the aforesaid decision is, squarely, applicable and attracted to the facts of the present case. The contention of the learned Counsel Mr. Bhatt for respondent No. 1 that possession of the petitioner in respect of the disputed premises, after expiry of the period of lease sanctioned by the competent authority, which was one year, 'ipso facto', would be unauthorised is full of substance.
15. This contention is, fully, supported by the provisions of Section 2(h) of the Gujarat Public Premises Act and the decision relied on by him. It would be interesting to refer to the ratio propounded in the aforesaid decision. The definition of "unauthorised occupation" as contained in Section 2(g) of the Public Premises (Eviction of Unauthorised Occupants) Act is in 'pari materia' of the definition of "Unauthorised Occupation" prescribed in Section 2(h) of the Gujarat Public Premises Act. It is held by the Supreme Court that the definition of "unauthorised occupation" contained in Section 2(g) of the Public Premises Act covers a case, where a person has entered into occupation of the public premises legally, as a tenant, under a lease but whose tenancy has expired or has been determined in accordance with law. The second part of the definition of unauthorised occupation, as contained in Section 2(g) is inclusive in nature and it, expressly, covers 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. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words "whether by way of grant or any other mode of transfer" in this part of the definition are very wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act.
16. Incidentally, it may be mentioned that in the aforesaid decision of the Supreme Court, it is held that the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, would over-ride, the provisions of Delhi Rent Control Act. It is also held that a person who is unauthorised occupant of a public premises cannot invoke the provisions of Rent Control Legislation.
17. In the light of the aforesaid discussion, it can, safely, be concluded, without any hesitation, that the first contention raised by the learned Counsel for the petitioner is devoid of any force of law and fact. Therefore, the first contention of the learned Counsel for the petitioner, as aforesaid, is required to be rejected.
18. In so far as the second contention is concerned, it may also be mentioned that it is, totally, meritless. What is the use of polishing the brass when the whole ship is sinking. A drowning man may even catch hold of a straw. Like-wise an attempt is made to escape the legal liability. It is contended that notice under Section 4(2) of the Gujarat Public Premises Act is not legal and valid. In that, it is contended that it does not specify the grounds, as stated in Section 4(2)(a) of the Gujarat Public Premises Act. This submission may appear prima facie to be captivating, but, totally, without any substance. Section 4(2)(a) of the Gujarat Public Premises Act prescribes that notice should specify the grounds on which the order of eviction is proposed to be made. What should be the format or the form of the notice is also provided in Rule 3 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Rules, 1974 ("Gujarat Public Premises Rules" for short.) It is contended that grounds are not specified, as per the format. This contention is also not sustainable. On a plain perusal and conjoint reading of Section 4(2)(a) of the Gujarat Public Premises Act and Rule 3 of the Gujarat Public Premises Rules, read with Form A under Rule 3, it becomes crystal clear that the notice cannot be said to be invalid or illegal. On the contrary, a note at the foot of the Form A, in clear terms, provides that any of the alternative which is relevant is required to be specified. In the present case, ground No. (iv) in Form A is relevant, which is, specifically, mentioned in the notice. Therefore, it cannot be said that the grounds are not, specifically, mentioned. Be it as it may and apart from that, the Section itself says that the format prescribed shall be adhered to, as far as possible. It cannot be gainsaid that alternative format could be adhered to while issuing show cause notice. Therefore, the second contention also merits rejection.
19. With the result, the aforesaid two contentions are unsustainable.
No other contention is raised in this petition.
20. In view of the facts and circumstances of the present case, in the result, the petition is rejected. The impugned judgment and order passed by the learned Joint District Judge, at Rajkot, in Civil Appeal No. 170 of 1971 is, hereby, confirmed. Rule is discharged with costs.
21. At this stage, learned Counsel for the petitioner requested that atleast six months' time may be granted to the petitioner for the purpose of vacating the disputed premises. Learned Counsel for respondent No. 1 seriously, objected to this request stating that the petitioner is unauthorisedly enjoying the disputed premises since more than 14 years and respondent No. 1, who belonged to armed force has, now, retired in last March, and, therefore, discretion of granting of time for vacation of the premises cannot be exercised in favour of the petitioner.
22. Considering the facts and circumstances of the present case, the petitioner is granted time to vacate the disputed premises upto 15-2-1992. The respondent shall not recover possession of the disputed premises till then. In the meantime, the petitioner shall not transfer, assign or alienate his interest in the disputed premises, in any manner, whatsoever. He shall handover peaceful possession to respondent No. 1 on or before 15-2-1992.