Gujarat High Court
Board Of Trustees Of Port Of Kandla ... vs Western Trading Co on 23 February, 2023
Bench: Ms. Justice Gokani
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22942 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 4236 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 4237 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 23022 of 2005
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 23022 of 2005
With
R/SPECIAL CIVIL APPLICATION NO. 23023 of 2005
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 23023 of 2005
With
R/SPECIAL CIVIL APPLICATION NO. 23024 of 2005
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 23024 of 2005
With
R/SPECIAL CIVIL APPLICATION NO. 23025 of 2005
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 23025 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI
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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 ?
==========================================================
BOARD OF TRUSTEES OF PORT OF KANDLA KANDLA PORT TRUST & 3
other(s)
Versus
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
WESTERN TRADING CO.
==========================================================
Appearance:
MR ALPESH RAJPURIYA(1464) for the Petitioner(s) No. 1,2,3,4
MR KM PATEL(629) for the Petitioner(s) No. 1,2,3,4
MR HARSHAD J SHAH(752) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MS. JUSTICE
SONIA GOKANI
Date : 23/02/2023
CAV JUDGMENT
1 These are the group of petitions preferred under
Articles 226 and 227 of the Constitution of India
challenging the judgement and decree which are
identical questions of facts and law and are,
therefore, being decided by this common judgement
and order.
2 The facts are drawn from Special Civil Application
No. 22942 of 2006 as the set of petitions has been
preferred by the Board of Trustees of Port of
Kandla, whereas the respondent has preferred
Special Civil Application No. 4237 of 2017 and has
sought the relief of regularization of breach by
preferring two petitions being Special Civil
Application No. 4237 of 2017 and Special Civil
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
Application No. 4236 of 2017 and various Civil
Applications. The facts, therefore, are drawn from
Special Civil Application No. 4237 of 2017.
3 Challenge is to the judgement, order and decree
dated 06.02.2006 passed by learned Joint District
Judge, Gandhidham-Kachchh in Regular Civil
Appeal No.56 of 2005, as the Appellate Court,
under Section 9 of the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 (hereinafter
referred to as " the Act'), by which the Court has
allowed the appeal filed by the respondent and
quashed and set aside the order passed by the
Estate Officer, Kandla Port Trust (hereinafter
referred to as "the KPT') on dated 19.12.2005 in
Eviction Case No.36 of 1997 under Section 5(1) of
the Act.
4 The brief facts of the present case are as under:
4.1 Petitioner No.1 is the Board constituted by the
Central Government under Section 3 of the Major
Port Trust Act, 1963 and is a body corporate in
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
terms of Section 5 of the said Act. Petitioner nos.2
to 4 are its officers. Petitioner no.3 is the Estate
Officer appointed under the Act. For the
development of the township of Gandhidham in the
registration sub-district of Anjar, Dist.: Kachchh,
petitioner no.1 Board was granted long terms lease
of plots for business purpose, with the approval of
the Union of India. The plot in question is being
Plot No.92 in Sector-8 was allotted to M/s. Batliboi
and Co.Pvt. Ltd. originally for a period of 99 years.
The lease deed executed between petitioner no.1
and M/s. Batliboi and Co.Pvt. Ltd. was dated
21.02.1967. The condition No.2 (3) of the said lease
deed, obliged the lessee to complete the
construction on the plot within 36 calendar months
from the date of allotment, and as per the condition
No.2(7) of the said lease deed, the premises leased
were to be used only for business purpose and
lessee was under an obligation not to do any act
which may cause annoyance, disturbance or
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
nuisance either to the lessor or its tenants in the
township of Gandhidham.
4.2 It is the say of the petitioner that the original
allottee M/s. Batliboi and Co.Pvt.Ltd., on obtaining
prior permission from petitioner executed transfer
deed in favour of the respondent on 18.10.1988,
whereby, it transferred its rights and interests in
the leased plot in favour of the respondent.
4.3 The transfer deed was also executed between the
original lessee and the respondent on 18.10.1988
which was registered with the office of the Sub
Registrar, Gandhidham on 18.10.1988,
accordingly, the plot was mutated in the name of
the respondent. It is the say of the petitioner that
the lease deed provided for commencement and
completion of construction on the plot within a
period of 36 months and yet no construction was
carried out. Not only that the plot was used by the
respondent for dumping food-grains such as wheat,
rice, soyabean extraction, etc. openly and that
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
caused nuisance of rats, insects, flies, birds, cats,
etc. endangering the health and sanitation of the
people residing in the area. Moreover, storing of
commodities in open during monsoon would have
also caused decay of food-grains aggravating the
nuisance. Therefore, a notice came to be issued
upon the respondent on 11.03.1996 calling upon it
to remedy the breach by completing the
construction on the plot within 30 days and
removing the commodities dumped/stored in the
open space by causing nuisance. However, nothing
was done by the respondent pursuant to the said
notice.
4.4 One Shri Vasant V. Ambeskar filed a writ petition
before this Court being Special Civil Application No.
3544 of 1996 against the petitioner- Board and
other authorities including the State Government,
Municipality and GPCB contending that some of
the plot holders are storing commodities in open
space and thereby causing public nuisance. The
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
Court issued the notice to the petitioner Board and
after referring to the notice issued by the petitioner
Board to the concerned plot holders not to store
food-grains in open space and to complete
construction and also noticing that the plot holders
did not do anything even after the issuance of
notice, the Court directed the concerned plot
holders vide its order dated 25.02.1997 which
includes the present respondent not to use the
plots allotted to them without previous permission
of this Court. The Court further directed the
petitioner to ensure that action is taken at the
earliest for the beach committed.
4.5 The petitioner cancelled the lease given in favour of
the respondent and as per the order dated
29.03.1997 read with corrigendum dated
03.04.1997, the respondent was directed to hand
over peaceful and vacant possession of the plot on
or before 10.05.1997.
4.6 On determination of the lease and cancellation of
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
allotment of plot, the respondent had no right to
hold on the possession of the plot. His occupation
of the plot, thus, according to the petitioner in post
10.05.1997 period was unauthorized occupation
since the lease was determined for breach of
covenants of the lease deed. However, the
respondent since did not hand over the possession
by 10.05.1997, he was issued the notice on
10.07.1997 by the Estate Officer under Section 4 of
the Act to show cause as to why he should not be
evicted in the manner provided under the Act.
Some of the plot holders approached with Civil
Application No.3836 of 1997, 3838 of 1997, 4501
of 1997 and 4534 of 1997 before this Court. This
Court on 19.01.1998 disposed of the writ petition
by directing the concerned lessees to approach the
Chairman of KPT with application for reviewing the
earlier orders cancelling the lease. A representation
for review/ modification of the earlier order
cancelling the lease, however, was not accepted
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
and the respondent was called upon to hand over
the vacant and peaceful possession of the plot to
the petitioner.
4.7 The Estate Officer gave opportunities of hearing to
the respondents and on 29.01.2004 requested to
attend the proceedings. The hearing took place on
09.08.2005 before the Estate officer, wherein, the
respondent admitted that he was an unauthorized
occupant and was not using the plot for the
purpose for which it was allotted. The Estate
Officer, therefore, on 19.12.2005 passed an order
under Section 5(1) of the Act and directed the
respondent and all others in occupation of the plot
to vacate the said premises within 15 days. It was
further directed to the respondents to comply with
the directions. The respondent and all those in
occupation of the plots be evicted by using force as
may be necessary.
4.8 The respondent filed an appeal under Section 9 of
the Act before the learned District Judge,
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
Gandhidham-Kachchh against the order dated
19.12.2005 before the Appellate Court.
4.9 It is the grievance on the part of the petitioner that
the appeal was heard by the learned Additional
District Judge, who allowed the appeal by
judgement and order dated 06.02.2006 and order
of Estate officer directing eviction of the respondent
from Plot No.92, Section-8 at Gandhidham as
unauthorized occupant has been quashed and set
aside.
5 The petitioner, therefore, aggrieved that Appellate
Court had exceeded its jurisdiction as to the
legality and validity of the termination of lease in
favour of the respondent and various grounds have
been set-out to urge that the Appellate Court has
committed serious error, and therefore, the order
deserves to be set aside, with the following prayers:
"(A) Your Lordships be pleased to issue a writ of
certiorari and / or any other appropriate writ,
order or direction in the like nature quashing and
setting aside the judgment and order dated
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
06.02.2006 passed by the learned Joint District
Judge, Gandhidham-Kachchh in Regular Civil
Appeal No. 56/06 at Annexure-A.
(B) Pending hearing and final disposal of the
petition, be pleased to stay operation,
implementation and effect of the judgment and
order dated 06.02.2006 passed by the learned
Joint District Judge, Gandhidham-Kachchh in
Regular Civil Appeal No. 56/06 at Annexure-A."
6 In Special Civil Application No. 4237 of 2017, the
respondent M/s. Western Trading Company,
setting out the very facts in detail, seeks the
direction to accept their representations by the
petitioners and to regularize the case of breach
committed by the lessee with the following prayers:
" 10. For the reasons stated hereinabove and
such other as may be advanced at the time fo
hearing of this petition, the petitioner above
named most respectfully prays that this
Hon'ble Court may:
A. be pleased to admit and allow
present petition.
B. be pleased to issue a writ of
mandamus or a writ in the nature of
mandamus or any other appropriate writ,
order or direction to direct the respondent/s
to accept the representation of the petitioner
dated 25/2/2016 and to regularise the case of
breach committed by the petitioner-lessee in
Plot no.92 in Section No.8 in Gandhidham by
imposing penalty, etc. on the ground of parity.
C. be pleased to issue an appropriate writ,
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
order or direction from this Hon'ble Court to
declare that the action of the respondents to
invoke the provision of the Public Premises
(Eviction of Unauthorised Occupants) Act,
1971 ["the Act" for short] in the case of breach
committed by the petitioner-lessee in Plot
no.92 in Sector No.8 in Gadhidham against
the guidelines issued by the Central
Government vide resolution no.21013/1/2000
dated 30/5/2002 published in the Gazette of
India dated 8/6/2002 and also against the
decision of the Hon'ble Supreme Court of
India in the case of Suhas H.Pophale vs.
Oriental Insurance Co.Ltd. Reported in (2014)
4 SCC 657.
D. be pleased to issue an appropriate writ
order or direction to declare that the action of
the respondents to treat the petitioner
differently from the other plot holders is bad
in law.
E. pending admission, hearing and
final disposal of present petition, be pleased to
regularise the case of breach committed by
the petitioner-lessee in Plot no.92 in Section
No.8 in Gandhidham by imposing penalty, etc.
F. be pleased to pass such other and
further orders which may deem fit in the
interest of justice in favour of the petitioner."
7 Additional affidavit on behalf of the Manager of the
respondent is in relation to the new development
that took place, after filing of the petition the Board
of Trustees of KPT and after filing of the affidavit-in
reply. It is urged that in similar cases, the KPT has
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
regularized the breaches of non-construction
committed by the lessee by imposing penalty. The
circular dated 11.02.2004 permitted the
regularization of the breach committed by the
lessee by charging the penalty. In similar cases, the
petitioner KPT, regularized the breach of the said
nature.
8 The present respondent during the pendency of the
said petition made a representation to the KPT vide
communication dated 11.11.2011. The
representation made by the respondent is rejected
and it was decided not to revoke and/or modify the
cancellation order dated 29.03.2007. It is the say of
the respondent, that the petitioner has also
regularized the breach vide notice dated
03.04.2012 for non-construction and non-
completion of construction by one of its lessees. It
is therefore, urged on the ground of uniformity in
policy and on the ground of parity, the petitioners
ought to have considered the case of the
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
respondent for regularization of breach.
9 This Court has heard at length the learned
advocates appearing for the KPT along the line of
the memo of the petition. Learned Senior Advocate
Mr. K.M. Patel appearing with learned advocate Mr.
Alpesh Rajpuriya has urged that, transfer has been
effected, of course, with the consent of the
petitioner-KPT from M/s.Batliboi and Co.Pvt. Ltd.
to the M/s. Western Trading Co-present
respondent firm, registered under the provisions of
the Indian Partnership Act. There were vital
conditions while permitting such transfer that
grant of this fresh lease would not waive breach of
any covenant on the part of the lessee. What was
necessary was to construct in 36 months and not
to cause nuisance. It is his say that lease once
determined in eviction proceedings, the legality
cannot be questioned. Sections 106 and 111 of the
Transfer of Property Act have been to urge that no
notice has been served and there is no illegal
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
occupation of the respondent. According to the
learned Senior Advocate, the premises are public
premises under Sections 4 and 5 of the eviction
proceedings at the hands of the Estate officer is
sufficient and when he is of the opinion that
anyone has unauthorizedly occupied it, he is
empowered to pass an order of eviction. A person
who feels aggrieved can approach an Appellate
Court which is in the instant case the District
Judge. It is his say that the Court has committed
serious error, as in absence of any contract or
usage of contract, when it has chosen not to
uphold the order of the Estate Officer, six months'
notice is not contemplated. It is for the agricultural
purpose, the six months' notice is contemplated.
The premise was given for industrial purpose, and
therefore, what was necessary was one month
notice. Once there is a determination of the lease,
the only remedy available to the respondent is to
file the Suit and challenge the same. The Court
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
ought not to have gone into all these aspects, once
the lease is determined that the person is in
unauthorized occupation. He has relied upon the
following authorities in support of his submissions.
(a) Ashoka Marketing Ltd. and another vs.
Punjab National Bank and others,
(1990) 4 SCC 406.
(b) Sarup Singh Gupta vs. S. Jagdish Singh and
others, 2006 AIR SCW 1966.
(c) Shanti Prasad Devi and another vs.
Shankar Mahto and others, (2005) 5
SCC 543.
(d) Smt. Shalan Narayan Dappal & Ors. vs. The
Board of Trustees of the Port of
Bombay, AIR 2009(NOC 2439 (BOM.)
(e) New India Assurance company Ltd. vs. Nusli
Neville Wadia and another, (2008) 3 SCC
(f) Cantonment Board and another vs. Church
of North India, (2012) 12 SCC 573.
10 Learned Senior Advocate Mr. Marshall with learned
advocate Mr.Arpit Kapadia appearing for the
respondent has urged that, it is a public premise,
where, Chairman cannot act as a private person. In
a hot haste to get it evicted, the actions have been
taken. It is also to be seen that whether the breach
is capable of being remedied. It is urged that, 21
years after the transfer of leasehold, the action has
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
been taken. It is the say of the learned counsel that
the powers exercised are within a very few days in
a hot haste, issuing a formal notice as a show
cause notice. It is urged that on 09.04.1997 the
lease was terminated within 20-21 days from the
first order till the order of the Division Bench in
Letters Patent Appeal, where the respondents were
directed to complete the construction on the plot.
He also questioned that whether for determining
the lease, all that was needed to be done at the end
of the authority has been done or not. If not, it is
easy for the authority to determine the lease on a
very trivial or flimsy grounds. In a time bound
manner, a resort is contemplated, quite a few have
breached, however, no action has been taken
against them. It is also pointed out that, Mr. Ram
Naik,the Member of Parliament, wrote to the
Ministry, as many complaints received against the
authority. There are guidelines issued which are
forming part of the record floating these directions,
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
if any, action is taken, the same should not be
permitted oblivious to two chances given by the
High Court. He has urged that 36 months had been
permitted for construction, there is no
reasonableness in the same. The moment,
reasonableness of time goes, the action must fail.
The reasonable opportunity of correcting the
breach has not been given. In totality his
submissions are that the respondents have been
treated unreasonably, three representations were
made, which were decided almost verbatim and
still rectified if opportunity is given. There is a clear
discrimination in not considering the
representations. There is no guideline that if lease
is terminated/determined, it cannot be regularized.
The alternative submission also is that, if the two
parties are treated in dissimilar way, there is a
need for the Court to intervene.
11 In rejoinder, learned Senior Advocate Mr. Patel
urged that in acceptance that the respondent
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
would act, from 1988 to 1996, the petitioner did
nothing, however, the respondent has also not
done anything nor any construction made, 8 years
is a long period. The first notice was given on
07.03.1996 and the 2nd notice on 22.04.1996, yet
nothing was done. On 25.02.1997, this lease was
terminated. Since from the conduct, it was quite
apparent that respondents were not interested in
remedying the breach. It is further his grievance
that it is an excuse on the part of the respondent
that the plot was used by another Company for
storing the food-grains. It is unbelievable that
without charging the rent, these plots would have
been permitted to be used by another Company,
there had been a non-action on the part of the
respondent and its predecessors for 30 years and
this conduct of the respondents has led the
determination of the lease. The action, therefore,
cannot be faulted. He further has urged that
provisions of Public Premises Act must prevail over
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
the Rent Control Act and the question of
regularization also would not arise unless lease
terminated is set aside.
12 In sur-rejoinder, learned Senior Advocate
Mr.Marshall has urged that there is nothing to
indicate that there was a reasonable time given to
the respondent. The position of law in quite well
settled and for which, he has incorporated the
following authorities;
(i) Jamshed Hormusji Wadia vs Board Of
Trustees, Port Of Mumbai &
another, (2004) 3 SCC 214.
(ii) Banatwala and company vs. Life Insurance
Corporation of India and another,
(2011) 13 SCC 446.
(iii) B. Sharma Rao H. Ganeshmal and Anr. vs
Head Quarters Asst. And others,
(1998) 9 SCC 577.
12.1 He has urged that, whether the person is
unauthorized tenant or not, is to be decided by the
Estate Officer, and once decided, the same has to
be challenged in appeal before the Appellate Court/
Appellate Authority. The Civil Suit has been barred
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
as per the decision of the Apex Court and without
availing opportunity, since the termination has
been done and as in some other cases, the High
Court has directed to consider the case
sympathetically, the KPT's petitions are to be
resigned to the page of history.
13 On thus hearing both the sides and before
adverting to the facts, the law on the subject
deserves to be discussed.
14 In case of Ashoka Marketing Ltd. and another v.
Punjab National Bank and others reported in
(1990) 4 SCC 406, the common question that arose
for consideration of the Apex Court in the appeal
was whether a person who was inducted as a
tenant in premises, which were public premises for
the purpose of the Public Premises Act, and whose
tenancy has expired or has been terminated, can
be evicted from the said premises as being a person
in unauthorized occupation of the premises under
the provisions of the Public Premises Act and
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
whether such a person can invoke the protection of
the Delhi Rent Control Act, 1958. In other words,
the question was, whether the provisions of the
Public Premises Act would override the provisions
of the Rent Control Act in relation to premises
which fall within the ambit of both the enactments.
The Apex Court has held that, both are the Acts of
the Parliament and fall under concurrent list and
held that to determine as to which Act will apply,
the statutory rule of constructions, viz. later law
abrogates earlier contrary law will apply. Rule
generalia specialibus non derogant will not apply,
as both the Acts are special enactments. It held
that having regard to the purpose, policy and
legislative intent of the two special enactments
also, the 1971 Act will prevail over the 1958 Act.
The relevant paragraphs are read as under:
"16.In English law a corporation has been defined
as "a body of persons or an office which is
recognised by the law has having a personality
which is distinct from the separate personalities of
the members of the body or the personality of the
individual holder for the time being of the office in
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
question."
(See Halsbury's Laws of England, Fourth Edition,
Volume 9, Para 1201). Generally speaking,
corporations are of two kinds; corporation
aggregate and corporation sole. A corporation
aggregate has been described as an incorporated
group of co-existing persons and a corporation sole
as an incorporated series of successive persons,
(Salmond on Jurisprudence, 12th Edition P 308.
The distinctive feature of a corporation are that it
has the capacity of continuous existence and
succession, notwithstanding changes in its
membership and it possesses the capacity of
taking, holding and conveying property, entering
into contracts. suing and being sued, and
exercising such other powers and priviledges
conferred on it by law of its creation just as a
natural person may (See S.S. Dhanoa v. Municipal
Corporation, Delhi & Ors., [1981] 3 SCR 864.
Corporations aggregate may be public or private. A
public corporation is a corporation formed for a
public purpose e.g. local government authori- ties,
and it is usually incorporated by a public general
Act of Parliament. A private corporation is a
corporation formed for profit e.g. a limited
company, and it is usually incorporated under a
statutory enactment. After the second world war
there has been development of a new pattern of
public corporations in England as an instrument
of planning in the mixed economy. The general
characteristics of such a public corporation is that
it is normally created by a special statute; it has
no shares and no shareholders either private or
public, and its shareholder, in the symbolic sense,
is the nation represent- ed through Government
and Parliament; the responsibility of the public
corporation is to the Government, represented by
the competent Minister and through the Minister
to Parliament; the administration of the public
corporation is entirely in the hands of a board
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
which is appointed by the competent Minister; and
it has the legal status of a corpo- rate body with
independent legal personality. (See W. Fried- man:
The New Public Corporations and the Law [1947]
12 Mod. LR 234-236.) There is a similar growth of
this type of public corporation in other countries.
This trend is also evident in our country since
independence and a number of such public
corporations have been constituted by Acts of
Parliament.
17. The distinction between such a public
corporation and a corporation generally known in
law has been explained in the following
observations of Denning L.J., as he then was:--
"The Transport Act, 1947, brings into being the
British Transport Commission, which is a
statutory corporation of a kind comparatively new
to English law. It has many of the qualities which
belong to corporations of other kinds to which we
have been accustomed. It has, for instance,
defined powers which it cannot exceed; and it is
directed by a group of men whose duty it is to see
that those powers are proper- ly used. It may own
property, carry on business, borrow and lend
money, just as any other corporation may do, so
long as it keeps within the bounds which
Parliament has set. But the significant difference
in this corporation is that there are no
shareholders to subscribe the capital or to have
any voice in its affairs. The money which the
Corporation needs is not raised by the issue of
shares but by borrowings and its borrowing is not
served by debentures; but is guaranteed by the
Treasury. If it cannot repay, the loss falls on the
Consolidated Fund of the United Kingdom; that is
to say, on the taxpayer. There are no shareholders
to elect the direc- tors or to fix their remuneration.
There are no profits to be made or distributed."
(Tamfin v. Hannaford, [1950] 1 KB 18).
18. Reference has already been made to the
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
provisions of the Banks Nationalisation Act which
show that the nationalised bank has been
constituted as a distinct juristic person by the Act
and it is owned by the Central Government. There
are other provisions in the Banks Nationalisation
Act which show that the general superintendence,
direction and management of the affairs of the
business of the bank is vested in a Board of
Directors constituted by the Central Government
and the Central Government has the power to
remove a person from the membership of the
Board of Directors (Section 7(2) & 7(3) and in the
discharge of its functions the Bank is to be guided
by such directions in regard to matters of policy
involving public interest as the Central
Government may, after consultation with the
Governor of the Reserve Bank, give (Section 8).
This indicates that the nationalised bank has all
the attributes of the new pattern of public
corporation.
19. Merely because the expression 'body
corporate' has-been used in relation to the
nationalised banks in Section 3(4) of the Banks
Nationalisation Act and the expression 'corpo-
ration' has not been used, does not mean that the
nationa- lised bank is not a corporation. The
expression 'body corpo- rate' is used in legal
parlance to mean a 'public or private corporation'.
27.There is no warrant for confining the scope of
the definition of 'public premises' contained
in Section 2(e) to premises used for residential
purposes only and to excluded premises used for
commercial purposes from its ambit. In Hari Singh
v. Military Estate Officer, (Supra) a similar
contention was advanced and it was argued that
the expres- sion 'premises' in Public Premises Act
would not apply to agricultural land. This Court
rejected that contention with the observation:
"The word 'premises' is defined to mean any land.
Any land will include agricultural land. There is
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
nothing in the Act to exclude the applicability of
the Act to agricultural land."
28. We are also unable to hold that the
inclusion of prem- ises used for commercial
purposes within the ambit of the definition of
'public premises', would render the Public
Premises Act as violative.of the right to equality
guaran- teed under Article 14 of the Constitution
or right to free- dom to carry on any occupation,
trade or business guaranteed under Article 19(1)
(g) of the Constitution or the right to liberty
guaranteed under Article 21 of the Constitution. It
is difficult to appreciate how a person in
unauthorised occupation of public premises used
for commercial purposes, can invoke the Directive
Principles under Article 39 and 41 of the
Constitution. As indicated in the statement of
Objects and Reasons the Public Premises Act has
been enacted to provide for a speedy machinery for
the eviction of unauthorised occupants of public
premises. It serves a public purpose, viz. making
available, for use, public premises after eviction of
persons in authorised occupation. The need to
provide speedy machinery for evic- tion of persons
in unauthorised occupation cannot be con- fined
to premises used for residential purposes. There is
no reason to assume that such a need will not be
there in respect of premises used for commercial
purposes. No dis- tinction can, therefore, be made
between premises used for residential purposes
and premises used for commercial pur- poses in
the matter of eviction of unauthorised occupants
of public premises and the considerations which
necessitate providing a speedy machinery for
eviction of persons in unauthorised occupation of
public premises apply equally to both the types of
public premises. We are, therefore, unable to
accept the contention of Shri Yogeshwer Prasad
that the definition of public premises contained in
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Section 2(e) of the Public Premises Act should be
so construed as to exclude premises used for
commercial purposes from its ambit.
41 As a result of this comparison it can be said
that certain premises, viz. building or parts of
buildings lying within the limits of the New Delhi
Municipal Committee and the Delhi Cantonment
Board and in urban areas within the limits of the
Municipal Corporation of Delhi, which belong to or
are taken on lease by any of the companies or
statutory bodies mentioned in clauses (2) and (3)
of Section 2(e) of the Public Premises Act and
which are in occupation of a person who obtained
possession of the said premises as a tenant and
whose tenancy has expired or has been terminated
but who is continuing in occupation of the same,
would ex- facie fall within the purview of both the
enactments. The question which, therefore, arises
is whether the occupant of such premises can seek
the protection available under the provisions of
Rent Control Act and he can be evicted from the
premises only in accordance with the said
provisions and proceedings for eviction of such a
person cannot be initiated under the provisions of
the Public Premises Act.
55 The Rent Control Act makes a departure
from the general law regulating the relationship of
landlord and tenant contained in the Trnasfer of
Property Act inasmuch as it makes provision for
determination of standard rent, it specifies the
grounds on which a landlord can seek the evic-
tion of a tenant, it prescribes the forum for
adjudication of disputes between landlords and
tenants and the procedure which has to be
followed in such proceedings. The rent Control
Act can, therefore, be said to be a special statute
regulating the relationship of landlord and tenant
in the Union Territory of Delhi. The Public
premises Act makes provision for a speedy
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
machinery to secure eviction of unau- thorised
occupants from public premises. As opposed to the
general law which provides for filing of a regular
suit for recovery of possession of property in a
competent Court and for trial of such a suit in
accordance with the procedure laid down in the
Code of Civil procedure, the Public Prem- ises Act
confers the power to pass an order or eviction of
an unauthorised occupant in a public premises on
a designat- ed officer and prescribes the procedure
to be followed by the said officer before passing
such an order. Therefore, the Public Premises Act
is also a special statute relating to eviction of
unauthorised occupants from public premises. In
other words, both the enactments, namely, the
Rent Con- trol Act and the Public Premises Act,
are special statutes in relation to the matters dealt
with therein. Since, the Public premises Act is a
special statute and not a general enactment
the exception contained in the principle that a
subsequent general law cannot derogate from an
earlier special law cannot be invoked and in
accordance with the principle that the later laws
abrogate earlier contrary laws, the Public Premises
Act must prevail over the Rent Control Act."
15 It is on the basis of the said decision, much
emphasized that Public Premises Act would
overrule the provisions of the other Act including
the Transfer of Property Act, essentially with an
intent to deal with the speedy recovery of
possession of the premises of public nature.
16 In yet another case of Shanti Prasad Devi and Anr.
v. Shankar Mahto and Others reported in (2005)5
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
SCC 543, wherein the Court has held and
observed that, on expiry of lease, mere acceptance
of rent for the subsequent months in which the
lessee continued to occupy the lease premises
cannot be said to be a conduct signifying 'assent' to
the continuance of the lessee even after expiry of
lease period. There being an agreement to the
contrary in the form of renewal clauses in the lease
deed, and neither express or implied "assent" of
landlord having been given either in terms of the
renewal clauses or otherwise, lessees could not be
held to have been 'holding over' under Section 116
of the Transfer of Property Act. In other words,
mere acceptance of rent by the lessor on expiry of
the lease, in view of specific terms prescribed for
the mode of renewal, cannot result in giving
renewal of the lease and the doctrine of 'holding
over' u/s. 116 of the Transfer of Property Act
cannot be attracted. The Court has observed in
para 17 and 18 as under:
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
"17. Section 116 of the Transfer of Property Act
reads thus:-
"Effect of holding over. If a lessee or under-lessee
of property remains in possession thereof after the
determination of the lease granted to the lessee,
and the lessor or his legal representative accepts
rent from the lessee or under lessee, or otherwise
assents to his continuing in possession, the lease
is, in the absence of an agreement to the contrary,
renewed from year to year, or from month to
month, according to the purpose for which the
property is leased, as specified in
Sec.106."[Emphasis supplied]
18. We fully agree with the High Court and the
first appellate Court below that on expiry of period
of lease, mere acceptance of rent for the
subsequent months in which the lessee continued
to occupy the lease premises cannot be said to be
a conduct signifying 'assent' to the continuance of
the lessee even after expiry of lease period. To the
legal notice seeking renewel of lease, the lessor
gave no reply. The agreement of renewal contained
in Cl.(7) read with Cl.(9) required fulfillment of two
conditions; first the exercise of option of renewal
by the lessee before the expiry of original period of
lease and second, fixation of terms and conditions
for the renewed period of lease by mutual consent
and in absence thereof through the mediation of
local Mukhia or Panchas of the village. The
aforesaid renewal Clauses (7) &(9) in the
agreement of lease clearly fell within the
expression 'agreement to the contrary' used in
Sec.116 of the Transfer of Property Act. Under the
aforesaid clauses option to seek renewal was to be
exercised before expiry of the lease and on
specified conditions."
17 The Apex Court in the case of Sarup Singh Gupta
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
v. S. Jagdish Singh & Ors. reported in 2006 AIR
SCW 1966 also while overruling the judgement of
the Calcutta High Court AIR 1926 Cal 763, has
held that Section 113 of the Transfer of Property
Act leaves no room for doubt that in a given case, a
notice given under Section 111, Clause (h) may be
treated as having been waived, but the necessary
condition is that there must be some act on the
part of the person giving the notice evincing an
intention to treat the lease as subsisting. The
question whether such person had shown an
intention to treat the lease as subsisting is
essentially a question of fact. For reaching a
conclusion on this aspect of the matter, the Court
must consider all relevant facts and circumstances,
and the mere fact that rent has been tendered and
accepted, cannot be determinative.
18 In case of New India Assurance Company Ltd. vs.
Nusli Neville Wadia and Another B reported in
(2008) 3 SCC 279, the Apex Court was dealing with
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the respondents who are not protected tenants
under the Maharashtra Rent Control Act. It
discussed the public premises as defined under
Section 2(e) to mean any premises belonging to, or
taken on lease by any Corporation established by
or under a Central Act and owned or controlled by
the Central Government. The premise in question
is a public premise. After discussing various
provisions under the Public Premises Act, the
Court also referred to the guidelines issued by the
Central Government in the following manner:
"17. Section 3 of the Act provides for appointment
of an Estate Officers. Sections 4 provides for
issuance of a show cause notice in the following
terms :-
Section 4 - Issue of notice to show cause against
order of eviction -
(1) If the estate officer is of the opinion that any
persons are in unauthorised occupation of any
public premises and that they should be evicted,
the estate officer shall 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
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(b) require all persons concerned, that is to say,
all persons who are, or may be, in occupation of,
or claim interest in, the public premises,--
(i) to show cause, if any, against the proposed
order on or before such date as is specified in the
notice, being a date not earlier than seven days
from the date of issue thereof, and
(ii) to appear before the estate officer on the date
specified in the notice along with the evidence
which they intend to produce in support of the
cause shown, and also for personal hearing, if
such hearing is desired.
(3) The estate officer shall cause the notice to be
served 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."
18. Section 5 deals with the procedure for
eviction of unauthorized occupants. It reads :-
Section 5 - Eviction of unauthorised occupants.-
(1) If, after considering the cause, if any, shown
by any person in pursuance of a notice
under section 4 and any evidence produced by
him in support of the same and after personal
hearing, if any, given under clause (b) of sub-
section (2) of section 4], the estate officer is
satisfied that the public premises are in
unauthorised occupation, the estate officer may
make an order of eviction, for reasons to be
recorded therein, directing that the public
premises shall be vacated, on such date as may
be specified in the order, by all persons who may
be in occupation thereof or any part thereof, and
cause a copy of the order to be affixed on the
outer door or some other conspicuous part of the
public premises.
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
(2) If any person refused or fails to comply with
the order of eviction on or before, the date
specified in the said order or within fifteen days of
its publication under sub- section (1) whichever
is later, the estate officer or any other officer duly
authorized by the estate officer in this behalf may
evict that person from, and take possession of,
the public premises and may, for that purpose,
use such force as may be necessary."
19. Section 7 empowers the Estate Officer to
require payment of rent or damages in respect of
public premises by the person who is in
unauthorized occupation thereof.
20. Section 9 provides for appeal from an order of
the Estate Officer.
THE RULES;
21. Rules have been framed by the Central
Government in exercise of its powers
under Section 18 of the Act known as the Public
Premises (Eviction of Unauthorised Occupants)
Rules, 1971. Rule 5, which is material for these
appeals reads as under :-
"5. Holding of inquiries.
(1) Where any person on whom a notice or order
under this Act has been served desires to be
heard through his representative he should
authorize such representative in writing
(2) The estate officer shall record the summary of
such evidence and any relevant documents filed
before him shall form part of the records of the
proceedings.
GUIDELINES
22. A tenant of a public premise although
ordinarily does not get any protection from
eviction from the tenanted premises under the
provisions of the Maharashtra Rent Control Act,
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1999, it is accepted that the action of the part of
the landlord, which is a State within the meaning
of Article 12 of the Constitution of India must in
this behalf be fair and reasonable. In other words
the action of the State in terms of the provisions
of the Act should not be arbitrary, unreasonable
or mala fide. With that end in view only, and for
determining the legal effect arriving thereunder,
the Central Government had, from time to time,
issued several guidelines. The guidelines so
issued are dated 14th January, 1992 ; 5th
August, 1992 ; 7th July, 1993 ; 14th July, 1993 ;
23rd July, 1993; 9th June, 1998, 2nd September,
2002 and 23rd July, 2003. In terms of the said
guidelines, however, a distinction is sought to be
made between a tenant who is rich or
industrialist etc. vis-a-vis a person who is poor
and uses the tenanted premises only for his
residence as would appear from the guidelines
dated 23rd July, 2003, the relevant portion
whereof reads as under :-
"3. The Government Resolution dated 30.05.2002
embodies the guidelines dated 14.01.1992 for
observance by the Public Sector Undertakings.
However, clarification was issued vide OM
No.21011/790 Pol.1 IV.H.11 dated 07.07.1993
that the guidelines are meant for genuine non
affluent tenants and these are not applicable to
the large business houses and commercial
entrepreneurs."
23. Issuance of such guidelines, however, is not
being controlled by statutory provisions. The
effect thereof is advisory in character and thereby
no legal right is conferred upon the tenant. (See
1990 (Supp) SCC 440 at 508 : Narendra Kumar
Maheshwari vs. Union of India and others ;
(1981) 1 SCC 166 at 232 : Maharao Sahib Shir
Bhim Singhji vs. Union of India and others ;
(1988) 4 SCC 464 (paragraph : J.R. Raghupathy
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
and others vs. State of A.P. and others ; (2002)
100 DLT 487 : Uttam Parkash Bansal and others
vs. L.I.C. of India and 1992 (2) CLR 457 : Punjab
National Bank vs. M/s. The Lord Krishna Paper
Industries and others."
19 The reliance is placed on the decision of this Court
in Special Civil Application No. 6066 of 2006 with
Special Civil Application No. 6341 of 2006, where
this Court (Coram: Hon'ble Mr. Justice Jayant
Patel) has held that, while exercising the appellate
power under the Act against the order of eviction,
competent authority under the Act has no power to
examine the legality and validity of the action for
termination of the contract. Therefore, it was held
that so far as the observations made by the District
Judge in the order which was impugned before the
High Court so far as they relate to sitting in appeal
over the decision for termination of the contract,
cannot be maintained. The Hon'ble Court has
observed as under:
"....There is considerable force in the contention of
Mr.Patel, learned counsel for the petitioner that
the District Judge while exercising the
appellate power under the Act against the
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order of eviction, the competent
authority under Act had no power to examine the
legality and validity of the action for
termination of the contract. Hence, I find that the
observations made by the learned District
Judge in the impugned order so far as they relate
to sitting in appeal over the decision for
termination of the contract, cannot be
maintained. However, it appears to me that the
exercise of the power for eviction under the Act
could not be said as severable, but rather
is
joint and composite exercise of the power and the
reason being that the rights if any for
maintaining the possession of the plot or against
the eviction of first allottee and subsequent
transferee are interconnected. It may be
that the eviction officer while exercising the power
may declare the transaction of transfer of
possession or the agreement between the first
allottee and the subsequent transferee as illegal
or based thereon, may further consider the
matter
for entitlement to retain the possession or not.
But in my view, such aspect would be
required to be
considered simultaneously before the order of
eviction is passed. Had it been a case
of transfer after the eviction order was passed, the
matter might stand on different footing and
different consideration, but in a case where the
transfer may be unauthorized, had taken
place prior to the proceedings under the
Act for
eviction were initiated, it was be required for the
competent authority to serve the notice to the
first allottee as well as the so called transferee
who is in possession of the plot
simultaneously and both were required to be heard
before the eviction order was passed. The
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aforesaid procedure has not been followed by the
eviction officer or the competent authority under
the Act before passing the order of eviction."
20 In the case of Cantonment Board and another v.
Church of North India reported in (2012) 12 SCC
573, the eviction from premises owned by Union of
India but under management of Cantonment
Board. The eviction order was passed in 1991 by
the Estate Officer under 1971 Act. The Cantonment
Boards brought under Public Premises Act. The
Court held that the premises since belonged to
Union of Indian which were always covered under
the Public Premises Act and were only under
management of Cantonment Board, even prior to
the amendment, and therefore, the premises were
always covered under the Public Premises Act.
After the expiry of lease, the respondents were
since in unauthorized occupation, notice of seven
days' was required under the Public Premises Act.
The Hon'ble Court has held as under:
"5. Section 2(e) of the Public Premises Act defines
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"public premises." This section is split into two
sub-sections. Sub-section (1) covers thereunder
any premises belonging to or taken on lease or
requisitioned by or on behalf of the Central
Government. Sub-section (2) deals with premises
belonging to or taken on lease or on behalf of
various entities such as Government Companies,
Universities, Major Ports etc. which are mentioned
in that sub-section, and Cantonment Boards have
come to be covered under sub-section (viii) by
amendment with effect from 1.6.1994. The case of
the respondent has been that the premises belong
to Union of India, and, therefore, are public
premises. The Estate Officer did have the
jurisdiction over such premises. It is another
matter that the premises of Cantonment Boards
have also come under the definition of public
premises since 1.6.1994. It cannot mean that the
premises of Union of India which were always
under the Public Premises Act, but under the
Management of a Cantonment Board, since prior
to this amendment, would not be covered under
the Public Premises Act. This has been the plea of
the appellants right from the beginning.
"18. Section 116A of the Cantonment Act 1924,
gives the power to the Cantonment Board to
manage any property entrusted to it by the Central
Government. It is under this Section that the
present premises are under the management of
the appellant Board. Section 116A reads as
follows:
"Section 116A. Power to manage property.- A
[Board] may, subject to any conditions imposed
by the Central Government, manage any property
entrusted to its management by the Central
Government on such terms as to the sharing of
rents and profits accruing from such property as
may be determined by rule made under section
280."
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The Government has the power to make rules
concerning the management of these properties.
This power is contained in Section 116 of the Act.
19. Mr. Venkaramani has drawn our attention to
the Cantonment Land Administration Rules 1937
under which the properties under their
management are classified into three categories
`A", `B' & `C'. The present premises fall in category
`C'. He has also shown us the receipt issued by the
Defence Estate Officer to the appellant for the
payment of rent of the land on which the hospital
building is situated. We have also been shown the
relevant notification issued by the Central
Government authorizing the concerned Officer as
the Estate Officer for the premises under the
control of the Ministry of Defence.
20. This being the position, there is no substance
in the objection raised by and on behalf of the
respondent. The Estate Officer did have
jurisdiction to take action against the respondent
under the Public Premises Act. The period of
authorization of the respondent to occupy the
premises was over on 31.3.1984. Therefore, the
respondent was in an unauthorized occupation
thereafter under Section 2(g) of the Act. Notice as
required, under Section 4 of the Public Premises
Act was given. The respondent had no acceptable
defence. The premises were no longer being used
properly. That being so, the order of eviction was
fully justified as also the order passed by the
District Judge dismissing the appeal.
21. The Single Judge of the Rajasthan High Court,
therefore, clearly erred in holding that a notice of
15 days ought to have been given in the present
case to terminate the authority of the respondent
on the concerned premises. The provisions
of Sections 106 and 107 of Transfer of Property Act
could not be applied to the present case on that
count since the premises were covered under a
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special act which will prevail as against a general
enactment. The Division Bench also having
accepted that the respondent was in an
unauthorized occupation, erred in insisting that a
15 days' notice was necessary.
21 Learned Senior Advocate Mr. Marshall has relied
upon the decision of the Apex Court in the case of
Bantwala & Company v. Life Insurance
Corporation of India & Anr. reported in (2011) 13
SCC 446, the Court held as under:
"41. The Court, therefore, examined the schemes
of the two enactments, and noted the features of
the two enactments in para 55 as follows:-
"55.(i) The Rent Control Act makes a departure
from the general law regulating the relationship of
landlord and tenant contained in the Transfer of
Property Act inasmuch as it makes provision for
determination of standard rent, it specifies the
grounds on which a landlord can seek the
eviction of a tenant, it prescribes the forum for
adjudication of disputes between landlords and
tenants and the procedure which has to be
followed in such proceedings. The Rent Control
Act can, therefore, be said to be a special statute
regulating the relationship of landlord and tenant
in the Union Territory of Delhi.
(ii) The Public Premises Act makes provision for a
speedy machinery to secure eviction of
unauthorised occupants from public premises. As
opposed to the general law which provides for
filing of a regular suit for recovery of possession of
property in a competent court and for trial of
such a suit in accordance with the procedure laid
down in the Code of Civil Procedure, the Public
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Premises Act confers the power to pass an order
of eviction of an unauthorized occupant in a
public premises on a designated officer and
prescribes the procedure to be followed by the
said officer before passing such an order.
(iii) Therefore, the Public Premises Act is also a
special statute relating to eviction of unauthorized
occupants from public premises. In other words,
both the enactments, namely, the Rent Control
Act and the Public Premises Act, are special
statutes in relation to the matters dealt with
therein." ......(nos. to sub-paragraphs supplied).
Having noted the distinctive features of the two
acts, the Court held that the principle that a
subsequent general law cannot derogate from an
earlier special law could not be invoked in that
case because the later act, namely, Public
Premises Act was also special statute and not a
general enactment. Therefore, it further held that
the Public Premises Act must prevail over the
Rent Control Act in accordance with the principle
that the later laws abrogate earlier contrary laws.
94. We have referred to the general guidelines
dated 30.5.2002, laid down by the Central
Government in this behalf. Guidelines no. 2(i)
and 2 (iii) are relevant for our purpose. Guideline
no. 2 (i) states that the provisions of the Public
Premises Act, 1971 should be used primarily to
evict totally unauthorised occupants. Guideline
No. 2 (iii) specifically states that it will be open to
the public authority to secure periodic revision of
rent in terms of the provisions of the Rent Control
Act in each State, or to move under genuine
grounds under the Rent Control Act for resuming
possession. Thus, these guidelines specifically
recognise the relevance of certain provisions of
Rent Control Acts for their application to the
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
properties covered under the Public Premises Act.
It is stated in the guidelines that the public
authorities would have rights similar to private
landlords under the Rent Control Acts in dealing
with genuine legal tenants. It follows that the
public authorities will have the obligations of the
private landlords also. It is relevant to note that
the purpose of these guidelines is to prevent
arbitrary use of powers under the Public Premises
Act."
22 The moot question in light of the law which is being
discussed hereinabove is whether the issuance of
notice under the Public Premises Act and not
under Sections 106 and 111 of the Transfer of
Property Act would in any manner vitiate the
proceedings. It is not in dispute that the premise
allotted to the respondent is covered under the
definition of public premises. The initial transfer to
M/s. Batliboi and Co.Pvt.Ltd., and subsequent
transfer in favour of the respondent was with a
consent of the petitioner. The notice issued after 28
years to the present respondent-occupier for non-
compliance of the covenant of the lease, by the
Estate Officer under Section 5 and non-issuance of
the notice under the Transfer of Property Act
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whether would be an act which is non-est or a
nullity as per the condition no.2 (3) of the lease
deed entered into with M/s. Batliboi and
Co.Pvt.Ltd. The lessee was to complete the
construction on the plot within a period of 36
calendar months from the date of allotment and
condition no.2(7) was that the premises leased were
only to be used for the business purpose and lessee
was under obligation not to cause any kind of
annoyance or disturbance to the people in vicinity
and at large.
23 The representation made by the respondent is
rejected and it was decided not to revoke the order
29.03.2007 or modify the cancellation order. It is
the say of the respondent that the petitioner has
also regularized the breach vide notice dated
03.04.2012 for non-construction and non-
completion of construction by one of its lessees. It
is therefore, urged on the ground of uniformity in
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policy and on the ground of parity, the petitioners
ought to have considered the case of the
respondent for regularization of breach.
24 This Court has heard at length the learned
advocates appearing for the KPT along the line of
the memo of the petition. Learned Senior Advocate
Mr. K.M. Patel appearing with learned advocate Mr.
Alpesh Rajpuriya has urged that, transfer has been
effected, of course, with the consent of the
petitioner - KPT from M/s. Batliboi and Co. Pvt.
Ltd. to the M/s. Western Trading
25 At this stage, if one looks at the judgement and
order, which is impugned of the appellate Court
Regular Civil Suit No.56 of 2005 quashing and
setting aside the order of eviction passed by the
Estate Officer, Kandla Port Trust directing to evict
plots on 19.12.2005, which shall need a closer
C/SCA/22942/2006 CAV JUDGMENT DATED: 23/02/2023
examination.
26 This is an appeal preferred under section 9 of the
Public Premises Act, which had been passed by the
Estate Officer appointed under the said Act,
whereby he directed the respondent herein to
vacate the plot within 15 days from the date of
impugned order and hand over the vacant
possession to the Kandla Port Trust under section
5 of the Public Premises Act. The officer concerned
had been appointed under section 3 of the said Act.
It is not in dispute that the plot was originally
allotted to M/s. Batliboi Company Private Limited
on 21.02.1967 for the purpose of business by the
Kandla Port Trust, the petitioner herein, on lease
for the period of 99 years. The lease deed was also
sub-registered at Anjar.
26.1 It is not in dispute that after obtaining necessary
permission of the petitioner, the lease holder's
rights in the said plots given to M/s. Batliboi
Company Private Limited, the original lessee, have
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been transferred by it to the present respondent M/
s. Western Trading Company in the year 1988 by
way of transfer deed dated 18.10.1980 and,
accordingly, the said plot was mutated in the name
of the respondent in the record of the petitioner.
Mutation entry was also entered with the Sub-
Registrar's Officer, Gandhinagar. It appears that
merely after the petitioner issued a notice on
11.03.1996, after about 08 years of the permission
to transfer in the name of the present respondent,
it called upon the respondent to remedy the
breaches by removing the materials stored in the
open plot and also by completing the constructions
within the period of 30 days from the date of
receipt of the notice. In the event of failure to
remedy the breaches, it directed that the action for
cancellation of the allotment of the plot would be
initiated by the petitioner without any further
notice. It also asked the respondent to furnish a
copy of Gandhidham Development Authorities,
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which granted permission for carrying on the
constructions. This was in wake of Special Civil
Application No. 3544 of 1996 preferred by Shri
Ambeskar before this Court where he contended
that allottees of certain plots stored different
commodities openly and thereby caused public
nuisance and because of the storage in the open
places, it affected the environment also and the
nuisance of rats, flies, cats, insects etc had affected
health of public in the surroundings. This also has
caused issues of traffic regulations. In the rainy
season, there had been bags of food grains, which
would emanate foul and dirty smell, which would
seriously affect the health of the public in the
vicinity and this also causes a considerable loss of
food grains when millions are not getting the food
to eat.
26.2 This Court on 25.02.1997 directed the petitioner
herein not to allow the use of the plots allotted to
the respondents by the petitioner without prior
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permission of the Court and also further directed
that necessary action shall be taken against those
who are committing the breach. As per the
direction of the Court, the petitioner cancelled the
allotment of the plot by a notice dated 29.03.1997
and called upon the respondent to hand over the
vacant and peaceful possession of the plot on or
before 10.04.1997. However, the possession was
not handed over as directed and, therefore, the
proceedings under the Public Premises Act had
been initiated against the respondent by the Estate
Officer on 19.07.1997 and the notice also had been
issued under section 4 of the Public Premises Act
as mentioned hereinabove. This had resulted into
the respondent approaching this Court in a petition
where the Court on 19.01.1998 directed the parties
to approach the Chairman of Kandla Port Trust
with necessary application for review of earlier
order and directed the Chairman, Kandla Port
Trust to decide the review with sympathy towards
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allottees. It also further permitted the revocation or
modification of the order of cancelling the release of
the plots and it was kept open for the Trust to drop
the proceedings initiated against the allottees. After
availing due opportunities to the parties, the
Chairman, Kandla Port Trust rejected the prayer to
revoke or modify the cancellation order of
29.03.1997 and directed the respondent to hand
over the vacant and peaceful possession.
27 On rejection of this representation of review, the
Estate Officer proceeded with the eviction
proceedings. However, the respondent chose not to
appear in person or through an authorised
representative. It is only in the month of February,
2004 that the advocate was engaged to appear
before the Estate Officer, but due to some other
reasons, proceedings could not be initiated.
Request was made by the learned advocate
appearing for the respondent to allow the leading of
evidence, according to the learned advocate
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appearing for the Kandla Port Trust.
28 Thus, after hearing both the sides finally, the
Estate Officer concluded that the plot in question
were needed to be vacated under the Public
Premises Act. In the event of their not complying
with the same within 15 days, they would be
evicted forcefully.
28.1 The Court of learned Additional District Judge,
Kandla was approached by way of a Regular Civil
Appeal and the following issue was cast by the
Court:
"Whether the appellant proves that the eviction
order dated 19.12.2005 passed by the Estate
Officer in Eviction Case No.36 of 1997 is
arbitrary and illegal and against the settled
principles of natural justice and, therefore, the
said order is liable to be quashed and set aside."
28.2 The Court gave the findings in affirmation giving
detailed reasons.
29 The main thrust of arguments on the part of the
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respondents was that as per the guidelines issued
by the Central Government, provisions of the
Public Premises Act are to be used primarily to
evict the illegal occupants of the premises of the
public authority or unauthorised sub-letters or
employees, who have ceased to be in their service.
However, persons, who are in occupation of any
premises should not be treated or declared to be in
unauthorised occupants merely on service of notice
of termination of tenancy, as NC or breach of
contractual agreement, by taking advantage of
provisions of the Public Premises Act, there cannot
be any termination of tenancy. According to the
him, the petitioner has been managing the land on
behalf of the Government of India and, therefore, it
is bound to follow the guidelines issued by the
Central Government of India. According to the
learned Judge, provisions of the Public Premises
Act cannot be invoked against those, who are
transferee of the plots, which has been leased out
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by the petitioner for the period of 99 years, in the
instant case, to M/s. Batliboi and Company Private
Limited with interest and lease hold rights were
transferred in favour of the respondent on
18.10.1980. Hence, the Court was of the opinion
that the respondent being in lawful possession of
the plots, cannot be treated as unauthorised
occupant, simply because tenancy of the plot has
been terminated or allotment of the plot has been
cancelled. Central Government guidelines provided
that the mere termination of tenancy or
cancellation of lease is not sufficient to treat the
person concerned as unauthorised occupant of the
land within the meaning of section 2(g) of the
Public Premises Act. The Court also held that if a
person is not authorised occupant within the
meaning of section 2(g), no proceedings under the
said Act can be commenced or initiated against the
said person whose lease is cancelled or tenancy is
terminated.
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30 The Court appointed the Deputy Secretary, Kandla
Port Trust as the Estate Officer under section 3 of
the said Act by way of a notification. What also
weighed with the Court is that lease was not
terminated by the Kandla Port Trust, in accordance
with the provisions of the Transfer of Property Act,
and therefore, the respondent was not an
unauthorised occupant. The Court further held
that the lease can be determined in accordance
with the provisions of the Transfer of Property Act.
Section 111 and section 106 of the Transfer of
Property Act shall need to be taken into
consideration and unless these two provisions are
involved, it cannot be said that the respondent had
been an unauthorised occupant. The Court also
did not agree with the stand taken by the petitioner
herein that notice of cancellation of allotment on
29.03.1997 with a corrigendum on 03.04.1997 was
sufficient to terminate or determine the lease as the
termination of the lease shall not invoke the powers
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under section 111 and section 106 of the Transfer
of Property Act. It also took note of the fact that
notice required under section 111(g) was a must
and without issuance of any such notice under
section 111 and as per the provisions of 106 of the
Transfer of Property Act. It conclusively held that
there had been no termination or determination of
the lease and since the lease had not come to an
end, it is not possible to hold that the respondent
can be said to be in unauthorised occupation in
relation to the Public Premises Act.
31 The Court also further held that if the rent is
payable year after year, section 106 of the Transfer
of Property Act provides for determining the lease
by six months prior notice. It is for the Estate
Officer to satisfy himself that the person is in an
unauthorised occupation of the premises for him to
issue the orders and direction. The Court was also
of the opinion that it was since leased for 99 years,
by efflux of time, on 21.02.1966, the lease will be
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terminated and till then, it will remain in force
unless determined under section 111 read with
section 106 of the Transfer of Property Act.
32 The Court also relied on the decision of Allahabad
High Court in the case of Dalip Singh vs. Kudan
Singh, AIR 1914 ALLAHABAD 128, which says that
if a rent is payable annually, the tenancy will be
yearly and it can be legally terminated by giving
lessee six months notice expiring at the end of the
year. Therefore, unless six months notice is given,
as required under section 106 of the Transfer of
Property Act, any order passed is illegal. It was
emphasized on the part of the petitioner before the
appellate Court that the lessee was bound to
complete the construction on the plot within 36
calendar months, which it had failed to and,
therefore, there was a breach of condition of the
lease deed and the possession of the lessee had
become unauthorised and therefore, the lessee
could be termed as unauthorised occupant. It was
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also argued that there was a breach of clauses 2
and 3 of the lease deed and, therefore, the lease
deed was liable to be fortified, which has been done
by the Kandla Port Trust on 29.03.1987 and,
therefore, the order of eviction under section 5(1)
was justifiable.
33 The Court also was of the opinion that as per
Clauses 2 and 3 of the lease deed, M/s. Batliboi &
Company Private Limited was required to carry out
the construction on the plot and, therefore, by
21.02.1970, the same ought to have been done. Not
only M/s. Batliboi & Company Private Limited
never did that, the petitioner continued to accept
the yearly rent and subsequently, it also permitted
transfer by lease in favour of the present
respondent. Therefore, the condition has been
essentially waived by the petitioner.
33.1 For nearly 18 years, the petitioner never became
aware about the breach of condition committed by
the lessee. From the year 1967, they continuously
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breached the vital conditions of the lease, which
was an exquisite permission given for transfer of
lease, taking into consideration their silence for a
very long stretch of period would amount to the
waiver. It is covenant in a lease, which is a single
breach and, thereafter, year after year, would
amount to waiver of breach of covenant.
34 The Court also read section 114 of the Transfer of
Property Act, which provides that if a breach of
covenant is permitted within a reasonable time, a
clause of forfeiture would not be affected. It noticed
that the respondent had removed the quantity of
food grains and used cargo within a reasonable
time after the receipt of notice. Therefore, it cannot
be said that the lessee is liable for a new breach.
One of the grounds accepted by the Court
concerned was that the respondent allowed the use
of the plot by one Ship Shipping Service, which is
the sister concern of M/s. A. Jaswantrai and
Company and due to personal relations this
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storage of used cargo in the open plot was not
charged. Therefore also, there is no question of
breach of any condition. Accordingly, it held that
the order of eviction passed by the Estate Officer
was required to be quashed.
35 Worthwhile would it be to refer to the lease deed of
99 years entered into on 20.07.1966 between the
petitioner and the original lessee M/s. Batliboi &
Company Private Limited. It speaks of early rent
and sub-clause 2 and 3 speak of covering of the
said premises by the lessee in the following
manner:-
"(2) The Lessee will from time to time and
at all times pay and discharge all rates,
taxes, charges and assessments of every
description which are now or any at any
time hereafter during the continuation of
this lease be assessed, charges, or imposed
upon or in relation to the premises hereby
demised or any buildings to be erected
thereupon.
(3) Within the period of Thirty six
calender months from the said Twenty first
day of February, Nineteen hundred and
Sixty Seven 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)
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the Lessee shall and will at his own
expenses erect upon the demised premises
cover in and complete ina substantial and
work-manlike manner a building to the
satisfaction of the said Chariman 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 description
and design respectively as shall have been
prescribed and/or approved of in writing
by the Chairman.
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 and arranged in such manner
as shall have been previously proposed
and submitted by the Lessee to the said
Chairman and approved of in writing by
him.
Any provided all the materials used in the
said building shall be good and sound and
shall have been approved by the Chairman
and the timber shall be of good teak only
or such other good timber as shall be
sanctioned by the Chairman.
And provided further that all drains and
sewers for the said premises shall be
constructed; made, laid and connected to
the satisfaction of the Chairman and/or
any Local Authority and in such position
as shall be directed by the Chairman and/
or by the said Local Authority."
36 Clause 2(7) also requires reproduction, which
speaks of carrying on the business without any
nuisance:
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"(7) The Lessee will use the premises
primarily for Business purpose and
consistently with the requirements of
Business 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."
37 Clause 4 says that any breach would permit the
lessor to determine the lease for retaking
possession of the premises:-
"4. The Lessor, may in case of 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 enter on the demised
premises or any part thereof in the name
of the whole and retake possession of the
demised premises and any structures,
buildings and constructions of whatsoever
nature standing thereon; and in that case
the Lessee shall not be entitled to any
compensation paid by way of refund or
any part of the lumpsum development
charges paid hereunder or any outgoings
paid by him in this behalf or by way of
any damages for any loss of property or
business suffered by him provided
however,
(i) In case of any breach of the terms by
the Lessee relating to non-payment of
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ground rent, installment of lumpsum
development charges or any other dues
outgoings and impositions, hereunder
levied or imposed, the Lessor shall not
take any action under this Clause unless
the Lessee has been in arrears for a period
of over two years.
(ii) In case at the time of determination
of this lease-deed, there exists some
building or structure on the demised
premises the Lessor shall, within
reasonable time of his having taken over
the same, pay reasonable compensation to
the Lessee for the said buildings and/or
structures. Such compensation shall
invariably be between the then market
value of the demised premises with and
without the aid buildings and/or
structures."
38 One notice for determination is contemplated
under clause 5:-
"5. No forfeiture or re-entry shall be
affected except as herein provided
without the permission of the Lessor or
the Chairman who shall not permit such
forfeiture or re-entry until and after
month of the Lessee being served with a
notice in writing by the lessor.
(a) Specifying the particular breach
complained of, and
(b) Directing the same to be remedied, if
the particular breach is capable of being
so remedied."
39 The lease deed being signed on 21.02.1967, the
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transfer had been effected in favour of respondent
on 18.10.1988 from M/s. Batliboi & Company to
M/s. Western Trading Company. Clauses 7 and 8
of the lease deed speak of the transferee to abide by
the covenant and conditions contained in the lease
of transferor .
40 It is quite clear from these covenants that original
lessee was required to carry out the construction
over the said premises to the satisfaction of the
Chairman or such office as he may appoint within
36 calendar months from 21.02.1967 that is the
date on which the lease was given in favour of the
respondent. Necessity of carrying out the business
without causing any nuisance, disturbance or
annoyance to the lessee or any of the tenant in the
conditions at Gandhidham is also one of the
covenants.
41 Clause 2(10) also provides permission for
inspection of the premise to the Chairman or any
authorized officer or to the sanitary staff for the
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purpose of maintaining sanitation.
42 Clause 2(12) provides for not to transfer or assign
premises without prior permission in writing from
the Chairman or any authorised officer. In the
event of breach, Clause (4) permits the
determination of the lease to the Chairman by
entering upon the premises or any part thereof and
take wholly the possession of the premises. A
month's notice has been made mandatory under
Clause 5 before forfeiture or reentry. The present
respondent agreed to abide by all the terms and
conditions of the earlier lease.
43 In this background, the notice of 22.04.1996
deserves reference at this stage, which speaks of
breach of Clause 2(3)(6) of the lease deed where
there was a necessity for completion of the
construction of the plot within a period of 36
months, as it has not been completed or
commenced in 32 years, therefore, this breach has
been construed seriously.
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43.1 Notice also speaks of dumping of huge quantity of
soya bean, wheat and rice in bags. It also speaks of
using of the plots in open for storage amounting to
change of use of land and thereby, causing
nuisance to the adjacent plot holders. It directed
the constructions to be completed within 30 days
time and removing the dumped bags and
completing the construction. In the event of failure,
the action of cancellation of allotment was to be
initiated.
44 As mentioned hereinabove, by way of Special Civil
Application No. 3544 of 1996 had been preferred
before this Court by one Vasant Ambeskar and this
Court vide order dated 25.02.1997 passed the
following order :-
"The petitioner has pointed out that
respondent Nos.7 to 14 allotees of plots at
Kandla Port Trust at Gandhidham have
not made construction as required and
were found storing food grains in open and
particularly in rainy season it was found
that they were keeping food grains in open.
It is pointed out that the Executive
Magistrate also passed an order that
within a period of ten days the food grains
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must be removed under a covered godown.
One such notice is annexed to the petition
at page 21. Letter was issued by
Gandhidham Municipality in this behalf,
which is at page 22 of the petition. It is
pointed out that the storage of food grains
in open during monsoon season causes
nuisance and it destroys the food
grains.Insects are not only spoiling the
food grains but the same is the cause for
the spread of the decease. Various notices
issued by the Kandla Port Trust calling
upon these persons not to store food
grains in the open and to complete the
construction, are placed on record. Till
date no constructions is made.
The Respondent Nos.7 to 13, though
served have not chosen to remain present
before the Court. Mr. Brahmbhatt learned
Advocate has placed on record letter dated
21.2.1997 addressed to him by Kandla
Port Trust indicating the present position
of construction and use of plots to whom
notices have been issued. From the
contents of the letter it is clear that the
plot holders have not done anything even
after issuance of the notices by Kandla
Port Trust. We fail to understand as to why
Kandla Port Trust has not taken any
action which was required to be taken
much earlier.
Under the circumstances we direct the
respondents Nos. 7 to 14 not to use the
plots allotted to them by Kandla Port Trust
without previous permission of this Court
and kandla Port Trust shall see that action
is taken at the earliest s breach is
committed.
Fresh Notice to be issued to respondent
no.
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S.O. To 25.03.1997"
45 Pursuant to the directions issued on 25.02.1997,
on 29.03.1997, the petitioner ordered cancellation
of allotment on account of breach of the terms and
conditions and on account of non-compliance of
the directions by notices dated 07.03.1996 and
22.04.1996. There had been breaches of not
removing the dumped material from the plot and
also of not completing the construction within the
period of 30 days.
46 The Division Bench also took note of the various
notices issued by the Kandla Port Trust calling
upon the person not to store food grains in open
and to complete the construction and yet no
construction had been made and, therefore, it
directed the Kandla Port Trust to initiate action.
47 The petitioner, therefore, directed that by
committing such breach of terms and conditions of
the allotment, the respondent was entitled to
determine the lease and the same had been with
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effect from 09.04.1997. It also directed to hand
over the vacant and peaceful possession to the
Estate Manager on 10.04.1997.
48 Notice also came to be issued under sub-section
B(2) of section 4 of the Public Premises Act, 1971
on 10.07.1997 and, therefore, it had asked the
respondent to show cause as to why the order of
eviction be not made on or before 28.07.1997. The
respondent approached this Court in Special Civil
Application No. 3544 of 1996. The Court disposed
of the proceedings by saying that plot holders can
approach the Chairman of Kandla Port Trust with
necessary application for review of the decision of
the Chairman and directed the petitioner to
consider the review application with sympathy. It
also permitted the Chairman of Kandla Port Trust
to revoke or modify the order of cancellation of
lease of the plots. The respondents were also
permitted to submit necessary plan within the
period of one month from the date of order either
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by revocation or modification and plot holders were
permitted to approach the Court through Civil
Applications and were given time of one year from
the date of approval of the plan to complete the
construction. It also further stated that those of
them, who have been restrained from making any
construction, they shall maintain the status quo till
the review or modification application is decided.
The Court also further stated that this order shall
also enure for the benefit of those plot holders, who
are before the Court.
49 As mentioned hereinabove, the Chairman, Kandla
Port Trust, after giving opportunities to the parties,
rejected the application for not having found any
valid reason for restoration of the cancelled plots
and called upon the respondent to hand over the
peaceful and vacant possession. Worthwhile, it
would to reproduce the some of the reasons of the
order of the Chairman, while rejecting the request:
"11. In addition to the breach of
not commencing and completing
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construction on the plot, M/s. Western
Trading Co. committed another breach
of keeping bags filled with Soya-bean,
Wheat and Trice on the open plot
resulting into the public nuisance as
brought out to the notice of Hon'ble
High Court of Gujarat by the petitioner
Shri Vasant V. Ambeskar in the Special
Civil Application bearing No.3544 of
1996. The Hon'ble High Court of
Gujarat took note of all the facts and
passed orders dated 25.2.1997 in the
said Special Civil Application No. 3544
of 1996 directing the respondents not to
use the plots allotted to them by Kandla
Port Trust without prior permission of
the Court and also directed that Kandla
Port Trust shall see that action is taken
at the earliest by them, as breach is
committed by the allottees. The period of
9 years was more than sufficient for M/
s. Western Trading Co. for making use
of the plot by completing construction
on the plot as per the approved plan.
The Kandla Port Trust acted reasonably
by issuing a notice to the allottee to
remedy breach and on failure to remedy
breach committed by the party, Kandla
Port Trust took action for cancellation of
allotment and determination of the
lease.
12. The Section No.8 in
Gandhidham Township is a Prime
Commercial Locality and lot of
construction has already been carried
out in this area and the applicant M/s.
Western Trading Co. could not give
sufficient grounds or justification for not
taking any steps either to commence
and subsequently complete the
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construction in accordance with the
plans approved by Gandhidham
Development Authority.
13. Inspite of a specific condition
stipulated in the Lease- deed and agreed
to by the lessee to carry out
construction on the leased land, the
first lessee has not carried out
construction for about 24 years (1964 of
1988) and thereafter the transferee i.e.
present lessee M/s. Western Trading Co.
had not carried out construction for
about 0 years( from 1988 to 1997)
though the lessee was having un-
disturbed and absolute possession of
the plot in question. Thus, the valuable
plot of land bearing No.92 in the prime
location remained un-constructed from
1964 to 1997 i.e. about 33 years and
the land remained out the economic
use.
14. M/s. Western Trading Co. under
his representations dated 18.2.1998
and 14.10.2003 failed to give any
convincing reasons for not initiating or
undertaking any efforts to commence
and complete construction on the land
which was in the possession of Lessees
for about 33 years and has not given
justification for restoration of plot
No.92, Section-8 in his favour. Hence it
has been decided not to revoke or
modify the notice of cancellation of
allotment dated 29.3.1997 issued by
Estate Manager on behalf of the Board
of Trustees of the Port of Kandla, Kandla
Port Trust and as the allotment is
already cancelled, M/s. WesternTrading
Co. Ltd is hereby called upon to hand
over vacant and peaceful possession of
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the cancelled plot No.92 in Sector No.8
at Gandhidham back to Kandla Port
Trust in accordance with the said
notice."
50 It appears that this order of 25.11.2003, passed by
the Chairman, Kandla Port Trust, deciding not to
revoke or modify the order of cancellation dated
29.03.1997, issued by the Estate Manager on
behalf of the Board of Trustees of the Port of
Kandla, the petitioner, Kandla Port Trust, has
already been continued. Thus, consequently, the
allotment has already been cancelled. There has
been no challenge to the cancellation of the
allotment by notice dated 29.03.1997 by any mode
or manner, neither there had been any petition
preferred nor had they preferred any civil suit
questioning and challenging the cancellation of
allotment. Therefore, when the notice was issued
under the Public Premises Act, under sub-section
(1) of section 5 of the Transfer of Property Act, the
Estate Officer, appointed under section 3 of the
Public Premises Act , in exercise of powers under
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sub-section 12 of section 5, ordered the respondent
to vacate the said premises within 15 days from the
date of publication of the order. This order of
19.12.2005 passed by the Estate Officer has been
challenged by way of Regular Civil Appeal No.56 of
2005, which is under the provisions of section 9 of
the Transfer of Property Act, which is impugned
here.
51 Additional affidavit on behalf of the respondent will
be relevant, at this stage, which says that during
the pendency of this petition, in similar cases of the
present nature, the petitioner has regularized the
breaches of non-construction committed by the
lessee by imposing penalty and the circular dated
11.02.2004 permitted the regularisation of the
breach committed by the lessee by charging the
penalty. The respondent also made a
representation to the petitioner. However, on
11.11.2011, petitioner No.2 rejected the
representation of the respondent and decided not
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to revoke the order of cancellation of 29.03.1997. It
is further stated that the petitioners have
regularised the breach vide notice dated
03.04.2012 for non-construction and non-
completion of the construction by one of its lessees.
Therefore, even on the ground of uniformity in the
policy and on the ground of parity, the case for
regularisation of the breach should be considered.
Some of the circulars of the year 2012 have been
brought on the record.
52 All the petitions of the petitioners are not
entertained upholding the judgement and order
challenged in these petitions, whereas both the
petitions preferred by respondent M/s. Western
Trading Company and Madhuben Resorts Club
Pvt. Ltd. are allowed partly by directing the
respondents to consider the representations of the
petitioner for regularisation of the breach including
by imposing penalty etc. on the ground parity.
53 The reasons given by the Court below, while
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dismissing the plea of present petition, are sound
and in tune with principles well established. The
lease not having been terminated as required under
the Transfer of Property Act and as the breach has
continued for an exceptionally long period, sudden
action on the part of the petitioner to initiate the
proceedings under the Public Premises Act have
been rightly not endorsed by the Court of learned
Joint District Judge. No interference is warranted.
54 At the same time, since the breach is quite obvious,
the respondent shall need to get the same
regularised by making a request which has been
done by way of representation by the respondent.
55 Having considered for some other parties, let the
same be considered on the ground of parity with
necessary penalty and other directions of
compliance. Let the same be considered within
three months from the receipt of the copy of this
judgement.
56 Civil Applications, if any, pending, shall be
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disposed of in view of the order passed in the main
petitions.
(SONIA GOKANI,CJ)
SUDHIR
