Gujarat High Court
State Of Gujarat Through ... vs Lokumal Jawarharlal Ramchandani on 5 June, 2023
Bench: Sandeep N. Bhatt
C/SCA/11326/2014 CAV JUDGMENT DATED: 05/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11326 of 2014
To
R/SPECIAL CIVIL APPLICATION NO. 11342 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT THROUGH EXECUTIVE ENGINEER
Versus
LOKUMAL JAWARHARLAL RAMCHANDANI (Decd.) & ORS.
==========================================================
Appearance:
MR CHINTAN DAVE, AGP for the Petitioner - State
MR PRATIK Y JASANI, ADVOCATE for the Respondents
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 05/06/2023
CAV JUDGMENT
1. The present group of petitions is filed by the
petitioner - State of Gujarat to the separate but identical
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orders impugned dated 01.03.2013 passed by the 11
th
Additional District Judge, Rajkot in group of Regular Civil
Appeals, whereby the trial Court has set aside the order(s)
passed by the Appropriate Authority & Deputy Collector,
Rajkot in Eviction Cases dated 15.02.2011 under the Gujarat
Public Premise (Eviction of Unauthorized Occupants) Act,
1972.
2. The brief facts of the case are epitomized as
under :
2.1 The Government quarters in refugee colony are
allotted to the respondents by the United States of
Saurashtra, Revenue Department (Refugee), Rajkot vide order
dated 19.10.1949 on the certain terms and conditions. Since
their retirement and their death, the legal heirs of the
deceased have not returned back the said government
quarters and unauthorisedly occupying the same by not
paying even monthly rent.
2.2 The state authority had written communication to
the respondents to evict the said Government quarter vide its
communication dated 27.10.2009 and 18.12.2009. Thereafter,
the Competent Authority (Eviction) and Deputy Collector,
Rajkot had issued a show-cause notice dated 08.03.2010 to
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the respondents.
2.3 Being aggrieved by the said show-cause notice the
respondents have filed Special Civil Application No.3480 of
2010 before this Court, wherein this Court has, vide its oral
order dated 29.03.2010, dismissed the petition and directed
the respondents to make the submissions before the
Competent Authority concerned pursuant to the said show-
cause notice.
2.4 The State Authority has filed eviction cases under
Section 5 of the Gujarat Public Premises (Eviction of
Unauthorised Occupants) Act, 1972 before the Deputy
Collector and Divisional Magistrate, Rajkot in the year 2010,
wherein the Authority has, vide its order dated 15.02.2011,
held that the present respondents are unauthorisedly
occupying the Government quarters and directed to recover
the market rent and also to recover the taxis paid to the
Rajkot Municipal Corporation from the respondents.
2.5 Being aggrieved by the side order, the respondents
have preferred the Regular Civil Appeals No.21 of 2011 to 37
of 2011 before the trial Court - District Court, Rajkot.
2.6 The trial Court has, vide its separate but identical
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orders dated 01.03.2013, set aside the order passed by the
Competent Authority dated 15.02.2011 in Eviction Cases,
which are also separate but identical.
2.7 Hence, these petition by the State Authorities
before this Court, wherein this Court has issued rule vide
order dated 07.10.2014 and since then, these petitions are
awaiting final adjudication. Therefore, with consent of both
the learned advocates for the rival parties, this Court has
heard and decided this group of petitions finally, today.
3. Heard Mr.Chintan Dave, learned Assistant
Government Pleader for the State Authorities and Mr. Pratik
Jasani, learned advocate for the respondents.
4.1 Learned AGP Mr. Chintan Dave for the petitioner
- State Authorities has submitted that the respondents have
already retired and died and their legal heirs are occupying
the said Government quarters, which is unauthorizedly. He
has further submitted that they are not paying even market
rent and municipal taxes. He has submitted that the trial
Court has wrongly held that the respondents are not
unauthorisedly occupying the Government quarters.
4.2 He has submitted that the trial Court has
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erroneously relied as a lease, transfer and sublet contrary to
the terms and conditions of the order of the Government
quarter allotted to the refugees, who are retired from the
Government service and also died and therefore, the quarters
retrained by the legal heirs amount to unauthorized
occupants as per the definition given under Section 2(h) of
the Gujarat Public Premises (Eviction of Unauthorised
Occupants) Act, 1972. He has submitted that merely payment
of regular rent i.e. Rs.69/- per month does not become
entitlement to retain the Government quarters allotted to the
refugees.
4.3 He has submitted that the trial court has
committed gross error in appreciating the fact that the
government quarters are not allotted for the perpetual
succession but it is allotted to the refugees/employees only.
He has submitted that they must have to surrender back to
the State Government upon completion of the service or
death of the employees. He has submitted that the trial
Court has not properly appreciated the scheme of the
allotment of the Government quarters to such refusees, as
employees, in its true spirit.
4.4 He has submitted that the trial Court has
completely ignored the provisions of the Eviction Act by
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observing that returning a government quarter by the legal
heirs does not amount to unauthorised occupant.
4.5 He has submitted that when the original allottee
is no more, it is the duty of the legal heirs or relatives of
the original allottee to hand over the possession of the
government quarter to the State Authority back. He has
further submitted that looking to the allotment letter, there
was no provision that after the death of original allottee,
the legal heirs or relatives of the original allottee shall have
right to possess the said Government quarter. He has also
submitted that as per condition No.8 of the original allotment
letter, the Government is entitled to take over the possession
of the said Government quarter in question back after the
death or after retirement of the original allottee.
4.6 He has submitted that as per Section 2(h) of the
Act, the present respondents are the unauthorised occupants
of the Government quarters in question.
4.7 In support of his submissions, he has relied upon
the following decisions :
(i) 2008 (1) GLH 791 - Mangrol Takula
Panchayat versus Ranabhai @ Gagubhai
Gigabhai and others
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(ii) AIR 2023 (0) 13 (Guj.) - Jaferkhan
Alarakhabhai Radhanpuri Versus Dholka
Nagar Palika
(iii) Civil Appeal No.4064 of 2004 - S.D. Bandi
versus Divisional Traffic Officer, KSRTC (SC),
dated 05.07.2013
(iv) Special Civil Application No.17396 of 2013
and other allied matters - M.R. Makwana &
Ors. Versus State of Gujarat, dated
01.05.2023
4.8 He has submitted that these petitions may be
allowed and the order passed by the Competent Authority
may be upheld, by quashing and setting the impugned order
passed by the trial Court.
5.1 Learned advocate Mr.Pratik Jasani for the
respondents has submitted that the competent authority has
not properly appreciated oral evidence as well as documentary
evidence produced by the parties. He has submitted that the
competent authority has wrongly believed that the
respondents are unauthorised occupants of the disputed
premises. He has submitted that the authorities had issued
notice to the dead person, inspite of having knowledge of the
fact that the original allottees are no more. He has
submitted that, therefore the notice as well as the
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consequential proceedings are nullity.
5.2 He is submitted that the disputed quarters are
allotted to the father(s) of the respondents under the Special
Act for the displaced persons by the then Saurashtra
Government in the year 1949. He has submitted that the
said quarters were allotted on rent and therefore it was
leased for all purposes. He has submitted that the nature of
allotment can never be inferred to be that it is controlled by
the time, therefore, tenancy right would devolve on legal
heirs automatically considering the provisions of Section 5(11)
(c) of the Bombey Rent Act. He has submitted that there is
no stipulation that the person allotted quarters shall be
ceased to be tenant after the death of original allottee.
5.3 He has submitted that the disputed quarters were
allotted to lessee or transferee as a refugee, not as a
government servant. He has submitted that the respondents
have paid the rent prescribed by the government regularly
after and before the death of father of the respondents and
the department has accepted the said rent from the occupiers
and allowed to continue the possession. He has also
submitted that the impugned notices were issued in the
name of original allottees and therefore, it cannot be termed
as valid notice, where the heirs of original allottees are
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occupying the said quarters.
5.4 He has further submitted that in most of the
quarters, the legal heirs are residing and have paid rent to
the Authority. He has submitted that the quarters in
question were allotted to the original allottees by the
Saurashtra State in the year 1949 as refugees and since
then, the respondents are residing there. He has submitted
that the said colony is itself known as Refugee colony. He
has submitted that there is no time limit prescribed while
allotting the quarters in question. He had submitted that the
government has allotted the quarters in question to the
original allottees and after their death, the heirs of them are
in possession, and therefore they are not unauthorised
occupants. He has submitted that these petitions may be
dismissed and this Court may not interfere in the impugned
order passed by the trial Court.
6.1 I have heard learned AGP Mr.Chintan Dave for
the state authorities and learned advocate Mr. Pratik Jasani
for the respondents - original allottees. I have perused the
improved order passed by the trial court as well as the order
passed by the competent authority. I have also gone through
the material available on record. It is noted that the present
petitions are filed by the State of Gujarat under Aritlces 226
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and 227 of the Constitution of India. Before dealing with the
submissions made in the present petitions, it is appropriate
to re-produce Articles 226 and 227 of the Constitution of
India as under :
"226. Power of High Courts to issue certain writs-
(1) Notwithstanding anything in Article 32 every High
Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any
Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred
by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue
directions, orders or writs to any Government, authority or
person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such
Government or authority or the residence of such person is
not within those territories.
(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a
petition under clause (1), without
(a) furnishing to such party copies of such petition
and all documents in support of the plea for such
interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the
vacation of such order and furnishes a copy of such
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application to the party in whose favour such order
has been made or the counsel of such party, the
High Court shall dispose of the application within a
period of two weeks from the date on which it is
received or from the date on which the copy of such
application is so furnished, whichever is later, or
where the High Court is closed on the last day of
that period, before the expiry of the next day
afterwards on which the High Court is open; and if
the application is not so disposed of, the interim
order shall, on the expiry of that period, or, as the
case may be, the expiry of the aid next day, stand
vacated
(4) The power conferred on a High Court by this article
shall not be in derogation of the power conferred on the
Supreme court by clause ( 2 ) of Article 32.
227. Power of superintendence over all courts by the High
Court
(1) Every High Court shall have superintendence over
all courts and tribunals throughout the territories
interrelation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing
provisions, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms
for regulating the practice and proceedings of such
courts; and
(c) prescribe forms in which books, entries and
accounts shall be kept by the officers of any such
courts
(3) The High Court may also settle tables of fees to be
allowed to the sheriff and all clerks and officers of such
courts and to attorneys, advocates and pleaders practising
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therein: Provided that any rules made, forms prescribed or
tables settled under clause ( 2 ) or clause ( 3 ) shall not be
inconsistent with the provision of any law for the time
being in force, and shall require the previous approval of
the Governor.
(4) Nothing in this article shall be deemed to confer on
a High Court powers of superintendence over any court or
tribunal constituted by or under any law relating to the
Armed Forces."
6.2 From record, The following undisputed facts are
emerged.
6.2.1 The original allottees i.e. the father/grandfather of
the present respondents, got migrated to India from Pakistan
in the year 1947.
6.2.2 Since they were Government servants and were
the refugees, the erstwhile State of Saurashtra had allotted
the Government quarters in question to them in the year
1949, on certain terms and conditions stated therein.
6.2.3 The State of Saurashtra has allotted the said
quarters solely for the rehabilitation and resettlement of the
said refugees at that time and therefore, the said quarters
are known as refugee quarters till today.
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6.2.4 The original allottees have retired from service
after superannuation and have expired thereafter.
6.2.5 The rent of Rs.69/ is not paid by them to the
concerned authority.
6.2.6 The respondents are occupying the said quarters
till today. Some of them are the legal heirs and/or cousins
and/or tenants, etc.
6.2.7 There are 17 such Government quarters, which are
subject matters before this Court.
6.2.8 Some of them are in closed condition, in
dilapidated conditions and even not in proper condition in
which they can stay.
6.3 At this stage, it is relevant to refer to the order
of allotment issued by the Authorities concerned in the year
1949 to such refugees, one of such orders is as under :
" United State of Saurashtra
Revenue Department (Refugee)
Rajkot.
Date : 19th October, 1949
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ORDER
The displaced persons both Government
Servants and non-Government servants shown in the
attached list are granted one house each at their own
requested on the terms and conditions as shown below :-
1. they will pay monthly rent of Rs.25/- of such
amount as may be fixed hereafter by the Executive
Engineer.
2. They will keep up the building in good order
and will not cause any damage to it.
3. They will not make any addition or alteration
to the building.
4. They will not transfer or sub-let their use to
anyone else.
5. They will execute an affidavit tot he effect that
they do not possess any house or other accommodation
anywhere else in or outside Saurashtra.
6. They will surrender the accommodation at
present occupied by them to this department when they
vacate or when they are required by this department.
7. They will carry out the instructions on the
Executive Engineer, Rajkot from time to time.
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8. If default is committed in payment of rent for
any month or if any of the above terms and conditions
is violated, the grantee will be liable to be evicted.
Sd/- R.M. Trivedi
Asst. Secy. To Government
United State of Saurashtra
To :
All the allottees
The Executive Engineer
The Chief Accounts Officer
The Collector, Rajkot."
6.4 From above it transpires that there are specific
conditions in the allotment letter, more particularly Condition
No.6 that, they will surrender the accommodation at present
occupied by them to this department when they vacate or
when they are required by this department, and further
Condition No.7 that, they will carry out the instructions of
the Executive Engineer, Rajkot from time to time, and
further Condition No.8 that, if default is committed in
payment of rent for any month or if any of the above terms
and conditions is violated, the guarantee will be liable to be
evicted.
6.5 In the present case, the department has, time and
again, requested the present respondents to vacate the said
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Government quarters, but they have not vacated till date.
Further, there is default committed by the respondents in
payment of rent, which is undisputed, which can be seen
from the following statement made by the department.
Sl.No. SCA Nos. Rent not paid since
1. 11326/2014 Last 10 Years
2. 11327/2014 June, 2022
3. 11328/2014 June, 2019
4. 11329/2014 January, 2019
5. 11330/2014 Last 10 years
6. 11331/2014 September, 2022
7. 11332/2014 November, 2019
8. 11333/2014 September, 2017
9. 11334/2014 October, 2022
10. 11335/2014 Last 10 Years
11. 11336/2014 February, 2022
12. 11337/2014 November, 2021
13. 11338/2014 November, 2021
14. 11339/2014 January, 2022
15. 11340/2014 Last 10 Years
16. 11341/2014 April, 2022
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17. 11342/2014 June, 2022
6.6 At this stage, it is relevant to take into
consideration the relevant provisions of Section 2(e) regarding
public premises, which reads as under :
"2(e) "public premises" means-
(1) any premises belonging to, or taken on
lease or requisitioned by, or on behalf of, the
Central Government, and includes any such
premises which have been placed by that
Government, whether before or after the
commencement of the Public Premises (Eviction
of Unauthorised Occupants) Amendments Act,
1980, under the control of the Secretariat of
either House of Parliament for providing
residential accommodation to any member of
the staff of that Secretariat;
(2) any premises belonging to, or taken on
lease by, or on behalf of,- (i) any company as
defined in section 3 of the Companies Act,
1956, in which not less than fifty-one per cent,
of the paid up share capital is held by the
Central Government or any company which is a
subsidiary (within the meaning of that Act ) of
the first-mentioned company."
6.7 Since it is the public premises, at this stage, it is
relevant to refer to the provisions of Section 2(g) of the Act,
which is as under :
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"2(g) "unauthorised occupation", in relation to any
public premises, means the occupation by any person of
the public premises without authority for such
occupation, and includes the continuance in occupation
by any person of the public premises after the authority
(whether by way of grant or any other mode of transfer)
under which he was allowed to occupy the premises has
expired or has been determined for any reason
whatsoever."
6.8 From the conjoint reading of above, it becomes
clear that the premises in question is 'public premises' as
contemplated under the said Act. Therefore, the provisions
under the Act would be applicable and attracted in respect of
the premises in question. This brings into picture the
definition of the term "unauthorised occupation", which is
provided under Section 2(g). As per the said provisions, any
person who occupies public premises, without authority, for
such occupation, then he is in unauthorised occupation. The
said term also includes continuance of occupation of the
public premises by any person, even after the authority under
which he was allotted to occupy the premises, expires or gets
determined for any reason whatsoever. It is also relevant to
consider the contention raised by the respondents that notice
is issued in the name of heirs of dead person i.e. Lokumal.
It is relevant to refer to Section 4(1) & (2) of the Public
Premises (Eviction of Unauthorised Occupants) Act, which
read as under :
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"4. Issue of notice to show cause against order of
eviction.--
(1) If the estate officer is of 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
(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."
It is undisputed fact that notice is received by
heirs of original allottees, deceased Lokumal in the present
case, who are actual but unauthorized occupants and are
having knowledge about the notice of the public premises. On
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the contrary, this hyper-technical contention shows their
dishonest intention to prolong their occupation of premises
under one pretext or another. This Court is taking serious
note of such conduct of the respondents and it transpires
that the trial Court has committed gross error in giving
findings on this aspect. The trial Court has not appreciated
the contents of said notice itself and misread the
documentary evidence which should have been read in its
entirety. In fact, the said notice refers to conditions no.4 and
8 of the allotment order and this Court, vide order dated
29.03.2010 in Special Civil Application No.3480 of 2010, has
rejected the said petition filed by respondent against such
notice issued by the State Authorities.
6.9 From the facts noted above, it transpires that the
respondents (original allottees) have committed breach of the
conditions of the allotment order and since they have retired
from the services / expired, they have not vacated the said
quarters. Therefore, the concerned authority has filed an
application before the Deputy Collector and Sub Divisional
Magistrate, Rajkot for eviction of the government quarters
under Section 5 of the Public Premises (Eviction of
Unauthorised Occupants) Act. After hearing the parties, the
Competent Authority has, vide its reasoned order dated
15.02.2011, allowed the application and declared that the
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respondents are the unauthorised occupants.
6.10 At this stage, it would be fruitful to refer to
Section 5 of the Act regarding eviction of unauthorised
occupants, which the authority has properly followed, which is
as under :
"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 he may produce in support of the
same and after giving him a reasonable opportunity of
being heard, by himself, or by advocate, attorney or
pleader, the competent officer is satisfied that any of
the reasons specified in sub-section (1) of section 4
exists, the competent 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; and there upon the order shall be deemed to
have been duly served on all the persons concerned.
(2) If any person refuses or fails to comply with
the order of eviction within thirty days of the date of
its service under sub-section (1), the competent officer
or any other officer duly authorised by the competent
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.
(3) Notwithstanding anything contained in sub-
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section (2), where a person who has been ordered to
vacate any public premises for the reasons specified in
sub-clause (i) or (iv) of clause (a) of sub-sec. (1) of
section 4 pays to the competent officer the rent in
arrears or carries out or other- wise complies with the
terms contravened by him to the satisfaction of the
competent officer as the case may be, within one
month, of the date of service of the notice or such
longer time as the competent officer may allow, the
competent officer shall, in lieu of evicting such person
under sub-section (2), cancel his order made under sub-
section (1) and thereupon such person shall hold the
premises on the same terms on which he held them
immediately before such notice was served on him."
Thus, the above provisions empower the authority
to order eviction of an unauthorized occupants and therefore,
the authority has rightly passed the order.
6.11 In the present case, Neither the widow, nor the
legal heirs, nor the cousins, nor the tenant was allotted any
quarter by the Government, which is undisputed fact. Thus,
it can be said that the allotment orders were issued in
favour of the original allottees i.e. the father / grandfather of
the present respondents and it is also an undisputed fact
that the original allottees, who were refugees, have been
allotted the quarters and thereafter they have expired.
Therefore, it can be said that the agreement is in existence
between the original allottees and the Government and
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therefore, it cannot considered that that agreement is with
the present respondents, who are the heirs of the original
allottees.
6.12 This Court has decided the similar question in the
case of M.R. Makwana and others versus State of Gujarat -
Special Civil Application No.17396 of 2013 and allied matters
dated 02.05.2023. The relevant paras : 17.2.3.2 to 19 are as
under :
" 17.2.3.2 With regard to holding possession of the
Government quarters after retirement and/or death is
concerned, it is noted that after their retirement, the
respondent has called upon the petitioners to hand over
the vacant and peaceful possession of the Government
quarters in question on the ground that the so-called
agreement of allotment stands cancelled due to the
retirement on superannuation and/or death. Therefore, it
is clear that the petitioners are occupying the said
Government quarters after their retirement and/or death
illegally. At this juncture, Rule 12 of the Gujarat Civil
Services (Occupation of Government Residential
Accommodation) Rules, 2002 is required to be
considered, which is as under :
"12. Occupant of the residential accommodation -
The incumbent of a post, for whom a residential
accommodation has been made available, shall be
considered to be in occupation of the same during the
period of his incumbency of the post."
The said Rule 12 is enacted by the Government by
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exercising the powers conferred by the proviso to Article 309
of the Constitution of India, wherein, it is clearly stated that
the residential accommodation is available till an individual is
holding a particular post in the Government establishment.
Hence, as soon as the Government employee is discharged
from his post for any reason whatsoever, then he is bound to
vacate the residential accommodation provided to him.
17.2.4 With regard to question of illegal occupants is
concerned, it is noted that the petitioners were allotted these
Government quarters while they were in Government service
on curtained terms and conditions. They are retired / have
expired since long. They have not vacated the quarters in
question inspite of the terms and conditions of the allotment
letters. Some of them are even not paying the rent of such
quarters. The authorities have issued notices to the petitioners
time and again for vacating the quarters and for arrears of
rent. Thus, this Court finds that the petitioners are in illegal
possession of the said Government quarters since long.
18. From above, it is clear that the quarters are the
Government quarters and the Government is its owner. While
in service, the petitioners were allotted such quarters. They are
retired / have expired. Various notices were served to the
petitioners for vacating the quarters. Many of them are not
paying even rent to the Government as on today. Still they are
in possession of the said quarters and therefore, after
retirement, it can be said that the petitioners are occupying the
Government quarters illegally.
19. We cannot shut our eyes about the hard reality that
many Government employees, who are at present in the
service, are waiting for allotment of the Government quarters.
Learned AGP for the State has placed on record the statement
of the employees who seek Government quarter since long
which is about 1200 in figures. I know that all the employees,
who are in service, cannot be accommodated by vacating the
quarters in question, but atleast some of them can be
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accommodated by the Government.
It is relevant to refer to the decision of the Hon'ble
Apex Court in the case of S.D. Bandi versus Divisional
Traffic Officer, KSRTC & Ors., recorded on Civil Appeal
No.4064 of 2004, dated 05.07.2013. The relevant paras: 1, 2,
5 and 12 are as under :
"1. The instant case relates to the occupation of
government accommodation by members of all the
three branches of the State, viz., the Legislature, the
Executive and the Judiciary beyond the period for
which the same were allotted. The houses/quarters
difficulty in occupation beyond the accommodating of
period other such government prescribed causes
persons waiting for allotment and, therefore, the
Government is at a loss on the one hand in not being
able to accommodate those persons who are in need
and on the other is unable to effectively deal with the
persons who continue to occupy unauthorisedly
beyond the period prescribed.
2. Despite the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 (in short 'the
Act'), it is seen that it has not been effective enough
in dealing with the eviction inasmuch as the
competent Authority, i.e., Estate Officer has to first
initiate proceedings and pass orders after hearing the
parties and thereafter, one statutory appeal lies to the
District Judge under Section 9 of the Act. After
disposal of the appeal, people resort to writ
proceedings thereby enjoying the scarce government
accommodation. There are cases where the occupants
are so affluent that they are willing to pay the penal/
market rent and continue to occupy government
quarters especially in metropolitan cities where such
government quarters are a luxury situated in several
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acres of land within the heart of the city.
5. Pursuant to the said order, this Court, taking
note of the fact that in government quarters,
unauthorisedly, people are continuing for years
together to the detriment of the persons who are
entitled to occupy the same and also that the same is
the position in most of the State capitals and Head
quarters of the Union Territories, issued notices to the
Union of India, all the States and the Union
Territories with a direction to furnish the list of such
unauthorized occupants of government quarters in the
State capitals and Head quarters of Union Territories
belonging to all the three limbs of the State, viz., the
Legislature, the Executive and the Judiciary. This
Court further directed to furnish all the details
including names of such persons, details of quarters,
period of unauthorized occupancy, steps taken for
vacation and its result etc., and also that in case no
steps have been taken, reasons for such inaction.
12. Before considering the response of the Union
of India, States and the Union Territories as to the
suggestions of learned amicus curiae, let us consider
the relevant provisions of the Act applicable to the
persons in service. The Act was enacted to provide
for eviction of unauthorized occupants from public
premises. Section 2(e) of the Act defines `public
premises' as under:
"e) "public premises" means-
(1) any premises belonging to, or taken on
lease or requisitioned by, or on behalf of, the
Central Government, and includes any such
premises which have been placed by that
Government, whether before or after the
commencement of the Public Premises (Eviction
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of Unauthorised Occupants) Amendments Act,
1980, under the control of the Secretariat of
either House of Parliament for providing
residential accommodation to any member of
the staff of that Secretariat;
(2) any premises belonging to, or taken on
lease by, or on behalf of,- (i) any company as
defined in section 3 of the Companies Act,
1956, in which not less than fifty-one per cent,
of the paid up share capital is held by the
Central Government or any company which is a
subsidiary (within the meaning of that Act ) of
the first-mentioned company."
Section 2(g) defines "unauthorized occupation"
as under:
"(g) "unauthorised occupation", in relation
to any public premises, means the occupation by
any person of the public premises without
authority for such occupation, and includes the
continuance in occupation by any person of the
public premises after the authority (whether by
way of grant or any other mode of transfer)
under which he was allowed to occupy the
premises has expired or has been determined for
any reason whatsoever."
Section 4 of the Act speaks about issue of show
cause notice before passing an order of eviction
and Section 5 deals with eviction of
unauthorized occupants. Section 7 relates to
direction for payment of rent or damages in
respect of public premises. Section 9 speaks
about appeal against the order of the Estate
Officer. In terms of Section 10, the order passed
by the Appellate Authority shall be final and
shall not be called in question in any original
suit, application or execution proceedings
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whereas Section 11 speaks about offences and
penalty." "
6.13 It is also fruitful to rely on the judgment of the
Hon'ble Apex Court in the case of M/s Estralla Rubber
versus Dass Estate (Private) Ltd. reported in (2001) 8 SCC
97, and more particularly para 6 thereof, which reads as
under:
"6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in number
of decisions of this Court. The exercise of power under this
Article involves a duty on the High Court to keep inferior
courts and tribunals within the bounds of their authority and
to see that they do duty expected or required by them in a
legal manner. The High Court is not vested with any
unlimited prerogative to correct all kinds of hardship or
wrong decisions made within the limits of the jurisdiction
of the courts subordinate or tribunals. Exercise of this
power and interfering with the orders of the courts or
tribunal is restricted to cases of serious dereliction of duty
and flagrant violation of fundamental principles of law or
justice, where if High Court does not interfere, a grave
injustice remains uncorrected. It is also well settled that the
High Court while acting under this Article cannot exercise
its power as an appellate court or substitute its own
judgment in place of that of the subordinate court to correct
an error, which is not apparent on the face of the record.
The High Court can set aside or ignore the findings of facts
of inferior court or tribunal, if there is no evidence at all to
justify or the finding is so perverse, that no reasonable
person can possibly come to such a conclusion, which the
court or Tribunal has come to."
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6.14 Thus, in view of above facts and circumstances of
the case as well as keeping in mind the ratio laid down by
this Hon'ble Court as well as by the Hon'ble Apex Court as
noted above, this Court finds that the trial Court has
committed an error in evaluating the facts of the present
case. The order passed by the Competent Authority is just
and proper. The trial Court has not properly considered the
terms and conditions of the allotment order and has also not
properly interpreted the provisions of law in its true spirit
and committed error apparent on the face of record and also
findings are perverse, as such, is without properly considering
the terms of allotment order and also ignoring settled
position of law. The trial Court has also not properly
considered the factual aspects of the matter, therefore, such
erroneous order passed by the trial Court - District Court is
required to be quashed and set aside and the order passed
by the Competent Authority (Eviction), Rajkot is required to
be confirmed and restored.
7. For the reasons recorded above, the following order
is passed.
7.1 All these petitions are partly allowed.
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7.2 The orders impugned passed by the District Court,
Rajkot in Regular Civil Appeals No.21 of 2011 to 37 of 2011
dated 01.03.2013 are hereby quashed and set aside.
Consequently, the order(s) passed by the Competent Authority
(Eviction) is required to be implemented.
7.3 Rule is made absolute to the aforesaid extent in
all these petitions.
8. At this stage, learned advocate for the respondents
Mr.Pratik Jasani requests to stay of this judgment. This
Court has observed that since the respondents are occupying
the premises in question unauthorisedly and without
authority, as observed in this judgment above, the request is
rejected.
(SANDEEP N. BHATT,J)
M.H. DAVE
