Gujarat High Court
Ratandeep (Gandhidham) Owners ... vs Board Of Trustees Of The Port Of ... on 11 August, 2023
Bench: Vaibhavi D. Nanavati
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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)
=============================================
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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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-
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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
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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
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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
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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
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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:
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"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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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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 -
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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
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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
NEUTRAL CITATION
C/SCA/11148/2016 JUDGMENT DATED: 11/08/2023
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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
