JUDGMENT Dharmadhikari B.P., J.
1. In this writ petition filed under Articles 226 and 227 of the Constitution of India, the State of Maharashtra has challenged the order dated 19-10-1992 passed by the Resident Deputy Collector (R.D.C.) respondent No. 2, in proceedings initiated by it under Section 4(2) of the Bombay Government Premises (Eviction) Act, 1955 (hereinafter referred to as "the Act" for short). The R.D.C. has rejected the said application holding that the respondent No. 1 who was sought to be evicted was never a authorised occupant and he installed his panthela under the authority of R.T.O. Employees Credit Co-operative Society.
2. Mrs. Khade, learned Assistant Government Pleader appearing for petitioner has pointed out that the said application under Section 4(2) of the Act, was filed against the respondent No. 1 stating that after the new building of R.T.O. was constructed by P.W.D. possession of office building was taken on 1-5-1989 from Public Works Department and the respondent No, 1 encroached upon the Government land in the premises of the office building of R.T.O. and has erected panthela in the compound of the building. Either the Public Works Department nor the Regional Transport Officer has permitted the respondent No. 1 to install the panthela or to carry out his business in the premises. As the respondent is an unauthorised and illegal occupant, prayer was made to evict him as contemplated by Section 4 of the Act. A show cause notice was thereafter issued to him by the Authority and the respondent No. 1 filed his written statement on 22-6-1990 before the respondent No. 2. The respondent No. 1 in his reply denied that there is any encroachment on Government land and he further denied that he is in unauthorised occupation of the premises. He contended that he is a tenant of R.T.O. Employees Credit Co-operative Society Ltd., from last 25 years and has been paying rent to the said society. He also pointed out that the Civil Suit having No. 560/1988 is pending in the Court of Joint Civil Judge, Junior Division, Nagpur regarding dispute between him and the R.T.O. and the Civil Court has already passed order granting injunction and has restrained the said authority from taking any action in the matter of his eviction. Thereafter, the parties filed written notes of arguments and in the written notes of argument the petitioner has pointed out that the civil suit mentioned above was not against the R.T.O. but against the R.T.O. Employees Credit Co-operative Society. The respondent No. 2 has considered the situation and found that the applicant before it i.e. R.T.O. failed to show that the provisions of the Act are attracted. The said authority held that when Government premises or building are allotted to any person and there is breach of terms and conditions of allotment, the said act is attracted. If found that as the respondent No. 1 was not allotted or leased out the premises by the R.T.O. and as the R.T.O. admitted that the respondent No. 1 has encroached upon the land no action under the provisions of the Act is possible.
3. Mrs. Khade, contended that the approach is erroneous and contrary to the provisions of the Act. It is her contention that the Act prescribed procedure and machinery for eviction of tress passers also from Government premises. She contends that the burden to show that the respondent No. 1 was not an unauthorised occupant was upon the respondent No. 1 and if the respondent No. 1 wanted to show that he had any authority to install his panthela on Government land, he ought to have produced such authority and discharged that burden. It is her contention that as the respondent No. 1 did not discharge that burden the respondent No. 2 ought to have presumed that the respondent No. 1 had no such authority and therefore, ought to have passed order of his eviction. She has also invited attention to the another order passed by the same authority in another case instituted by the present petitioner, against one Shamrao Daulat Masram. It is her contention that in this case the authority has passed the order for eviction of Shri Masram, who was unauthorisidely running cycle stand on Government premises. She contends that the authority has thus taken a directly opposite stand in the matter of the present respondent No. 1.
4. Advocate Bhattad, appearing for respondent No. 1 contends that the R.T.O. himself approached the respondent No. 2 with prayer that the respondent No. 1 is a tress-passer. He contended that the provisions of the Act are not applicable when a tress passer or encroacher is sought to be evicted. Then by placing reliance upon explanation appearing after Section 4(6), he argues that only when a person who initially entered into the premises in authorised way is sought to be evicted, the provisions of the said Act are applicable. It is his case that the respondent No. 2 has correctly appreciated the controversy and has rightly rejected the application. He has also contended that the writ petition as filed by the R.T.O. is not maintainable as the respondent No. 2 has been acting as one of the officers of the petitioner only. In support he relied upon the judgment of the Division Bench of this Court reported at 1998(1) Bom.C.R. 277 : A.I.R. 1988 Bom. 271 (Merwanjee F. Desai v. State of Maharashtra and Anr.)
5. I have perused the aforesaid judgment. In the said judgment the Division Bench in para No. 7 of this ruling has considered the object and scheme of the enactment, and has found that the competent authority functioning under the Act is conferred with the executive powers of Government. The said portion of para No. 7 reads as under:
7. Thus the object and the scheme of the enactment show that what is conferred on the competent authority is the executive power of the Government. The authority is the sole Judge to decide whether an action for eviction or for recovery of arrears of rent should or should not be initiated. Likewise, the authority is vested with the power to drop the proceedings of eviction or recovery of rent or damages if it is satisfied that no grounds exists for eviction or recovery. So also it is for the authority to decide what time to grant to pay the arrears to remedy the breaches and to cancel the order of eviction or not. The action of the authority being on behalf of the Government, no appeal is provided to the Government against them.
Thus, if the competent authority decides that the action for eviction need not be taken the reasoning given in para No. 7 may be attracted. As is apparent from the facts of the present case, the respondent No. 2 has not applied its mind to this aspect at all. The respondent No. 2 has found that it has no jurisdiction to entertain the application. If the respondent No. 2 entertains the application examines the facts of the case and finds that no case was made out either for eviction of respondent No. 1 or then decides to drop the proceedings of his eviction, the ratio of this ruling will become applicable. In the facts of the present case as there is no such scrutiny and the application has been rejected, at its threshold, the Division Bench ruling has no application.
6. The other order to which the learned Assistant Government Pleader has made reference is passed in the case of Shri Masram on 29-4-1993. It appears that he was having a cycle stand in the premises of R.T.O. and the defence he had taken was identical. The competent authority i.e. the present respondent No. 2 therefore, found that some receipts were produced on record to show that Shri Masram paid cycle stand charges to the society, but the competent authority further observed that contract regarding the cycle stand could not be proved, and in absence of any written document either executed in between the R.T.O. and Shri Masram or between the employees co-operative society and R.T.O., the competent authority disbelieved the evidence and had proceeded to pass its order on 29-4-1992 in favour of R.T.O.
7. In present case also it appears that the respondent No. 1 did not produce any contract on record before the respondent No. 2 to show that he has been authorised by the R.T.O. employees credit co-operative society to install the panthela. On the contrary the respondent No. 2 has accepted the case that respondent No. 1 is an encroacher on the Government land. In this background it is necessary to have regard to the provisions of Section 4 of the Act, The said provisions are as under:
4. (1) If the competent authority is satisfied -
(a) That the person authority to occupy any Government premises, has whether before or after the commencement of this Act,-
(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 the whole or part of such premises, without the permission of the State Government, or the competent authority, or the officer who has or in whose name the premises are taken on behalf of the State Government or any other officer designated by the State Government in this behalf, or (ii-a) 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
(iii) otherwise acted in contravention of any of the term, express or implied, under which he is authority to occupy such premises, or
(b) that any person is in unauthorised occupation of any Government premises, or
(c) that any Government premises named are required for any other Government purposes, the competent authority may by notice served (i) by post, or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be prescribed, order that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of notice.
Thus Section 4(1)(a), contemplates that cases in which Government has to recover its charges. Sub-clause (c) contemplates a situation in which Government premises are required for any other Government purposes. Sub-clause (b) which is relevant for the purpose of the present case contemplates that the person is in unauthorised occupation of any Government premises. Here it is not in dispute that the respondent No. 1 does not have any authority from Government to remain in occupation of Government premises. It is also not in dispute that the premises where his panthela is installed are Government premises. In this background when the explanation which appears at the end of this section is seen, the explanation only defines the phrase "unauthorised occupation" in relation to any person authorised to occupy any Government premises. It does not define the phrase "unauthorised occupation" at all. The definition is also inclusive and not exhaustive. It is thus clear that the explanation only takes care of a situation in which a person who is initially permitted to occupy any Government premises is later on found to be in possession thereof unauthorisedly i.e. after the authority in his favour expired or is terminated. It is apparent that all types of unauthorised occupation as contemplated under Section 4(1)(b) of the Act, are not defined therein. It is further clear that therefore, to assistance can be taken from the said explanation to curtail the otherwise wide field which is covered by Section 4(1)(b). The later portion in the explanation i.e. in relation to any person authorised to occupy any Government premises, could have been used by the legislature even in Sub-clause (b) of Section 4(1) of the Act. This has not been deliberately done and therefore, if the arguments of Advocate Bhattad, are accepted it would be reading of something in said Sub-clause (b) which the legislature did not want to incorporate. The inclusive explanation at the end is deliberate and legislative intent of not incoporating such rider in Section 4(1)(b) is in accordance with the scheme and purpose of the Act. Neither Section 4 nor Section 5 of the Act uses the word "Government Servant" and only in explanation "person authorised to occupy any Government premises" are employed to avoid any controversy about the nature of occupation of such person after cessation of such authority. This explanation itself shows intention of legislature to include even trespassers in Section 4(1)(b) of the Act.
8. In view of this, I do not find that the respondent No. 2 was not justified in holding that the respondent No. 2 who is en-croacher or trespasser could not be removed by taking recourse to Section 4 of the Act. It is also clear that the respondent No. 1 has not claimed any contract or that he is authorised from the respondent No. 1. His case is that he has been permitted by the employees credit co-operative society to install his panthela there. The burden to show this was upon him. The respondent No 1 has further observed that the petitioner R.T.O. has not examined any officer or any office bearer of employee credit co-operative society to discredit the stand of the respondent No. 1. As the respondent No. 2 has not considered the controversy on merits it is not necessary for this Court to express anything more on the issue. The matter will have to go back to the respondent No. 2 to find out whether the respondent No. 1 is, or is not in unauthorised occupation of the Government premises.
9. The order dated 19-10-1992 passed by the R.T.O. in Revenue Case No. 13/LEN-39/ 1989-90 of Nagpur is therefore, quashed and set aside. The application moved by the petitioner under Section 4 is restored back to file of respondent No. 2. As the matter is very old, the respondent No. 2 is directed to dispose of the said application as early as possible, and in any case within a period of 6 months from the date of communication of this order to it.
10. Rule is made absolute in the aforesaid terms with no order as to costs.