Gujarat High Court
Kalpeshbhai Kiritbhai Shah vs Dy. Executive Engineer on 19 October, 2023
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12012 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 12018 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 12019 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 12022 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 12144 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 12145 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 12146 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 12148 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 12149 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
==========================================================
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 ?
==========================================================
KALPESHBHAI KIRITBHAI SHAH
Versus
DY. EXECUTIVE ENGINEER
==========================================================
Appearance:
MR MEHUL SHAH, SENIOR ADVOCATE with MR JR SHAH(762) for the
Petitioner(s) No.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
MR MOHAMMEDSOHEL S SHAIKH(10953) for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR, SENIOR ADVOCATE with MR AADITYA P
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 19/10/2023
CAV JUDGMENT
1. The captioned writ-applications referred above are self-
same arising out of the identical issue being aggrieved by the
orders passed by the competent authority under the provisions
of the Public Premises (Eviction of Unauthorized Occupants)
Act, 1971 wherein by concurrent findings of Estate Officer and
City Civil Court, Ahmedabad held that the writ-applicant in all
the above writ-applications are unauthorised occupants. The
Special Civil Application No.12012 of 2023 is treated as lead
matter with the consent of the learned Senior Counsel
appearing for the respective parties and order passed in the
said writ-application shall govern captioned writ-applications.
2. By way of present writ-application the writ-applicant
lessee herein has challenged the impugned order dated
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
19.12.2022 (Annexure-A) passed in Eviction Application No.22
of 2022 passed by the Estate Officer, Ahmedabad duly
confirmed by the learned Additional Principal Judge, City Civil
Court, Ahmedabad by order dated 23.6.2023 below Ex.23 in
Regular Civil Suit No.6 of 2022 passed under Section 9 of the
Public Premises (Eviction of Unauthorized Occupants) Act, 1971
(hereinafter referred to as 'the Act' for short).
3. Brief facts germane for adjudication of the present
dispute read thus :-
3.1 It is the case of the writ-applicant lessee that the writ-
applicant lessee is tenant of the premises in question situated
at District, Sub-District Ahmedabad, City Ahmedabad, building
which is known as Ahmedebad Jilla Panchayat, Shop situated
on the ground floor.
3.2 The writ-applicant lessee herein is in possession and
occupation of the premises in question since many years and is
regularly paying rent for the said suit premises. Though the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
writ-applicant lessee herein is tenant of the premises no rent
note or lease deed has been executed and only for the first
time in the year 2007 a lease deed came to be executed which
has expired and thereafter no further lease has been executed
and therefore the writ-applicant lessee is unauthorized
occupant of the suit property and accordingly the respondent
passed resolution and thereafter the Estate Officer issued
statutory notice under Section-4 of the Public Premises Act
which came to be issued to the writ-applicant lessee alongwith
the plaint which has been filed by the respondent authority.
3.3 It is the case of the writ-applicant lessee that subsequent
to the said lease the respondent passed a resolution being
Resolution No.64 on 30.6.2010 and in the said resolution the
rent has been revised by the respondent and the respondent
has incorporated certain conditions while passing the said
resolution. The writ-applicant lessee alongwith other tenants
accepted the said resolution and started making payment to the
respondent qua the rent fixed.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
3.4 Further the life of lease expired by efflux of time,
however the respondent has not terminated the said lease and/
or claimed any right on the basis of same and, therefore,
considering the said resolution passed by the respondent, the
respondent can be said to have accepted that the writ-applicant
lessee is tenant despite the lease was over and, therefore,
passed the necessary resolution.
3.5 In May 2022, the respondent issued legal notice
through their advocate and in the said notice the respondent
has not only admitted that the writ-applicant lessee as well as
occupants as tenants but Jilla Panchayat has terminated
tenancy rights by issuing such notice and similarly after reply
given by the tenants, while giving rejoinder as well as filing
caveat before the City Civil Court the respondent has admitted
the writ-applicant lessee as tenant.
3.6 In May 2022, the respondent called upon the writ-
applicant lessee as well as other tenants to hand over
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
possession on the next day and in fact took over possession
illegally. In view thereof, the writ-applicant lessee was
constrained to approach the learned City Civil Court and seek
mandatory reliefs, wherein the competent Court directed the
respondent to return the possession of the subject matter of the
property to writ-applicant lessee and other tenants.
4. Being aggrieved by the order impugned passed by the
learned City Civil Court the respondent filed Appeal From
Order being AFO No.130 of 2022 whereby the said order
passed by the trial Court came to be confirmed reserving the
liberty in favour of the respondent to take appropriate action
in accordance with law.
5. It is stated that as far as eviction is concerned, the same
has been claimed mainly on two grounds by the respondent
authority; one arrears of rent and two bonafide requirement. It
is also stated that while passing the order the Estate Officer
has only allowed order of eviction and as far as mesne profit
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
is concerned, the said relief has not been granted by the Estate
Officer. The said order is not challenged by the respondent
authority.
6. In the aforesaid sets of facts the writ-applicant lessee
herein has approached this Court seeking the following
reliefs :-
"(A) Be pleased to admit the present petition and be pleased
to called for the papers and proceedings of the Civil Appeal
No. 6 of 2022 filed by the petitioner before the Hon'ble City
Civil Court, Ahmedabad along with the original records
produced by the respondent before the learned trial judge.
(B) This Hon'ble court may be pleased to quash and set
aside the impugned order passed in Civil Appeal No.6/2022 by
the Additional Principal Judge, City Civil Court No.2, order
dated 23.6.2023 Regular Civil Appeal No.6 of 2022 Annex.C at
Ahmedabad as well as order dated 19.12.2022 passed by the
Estate Officer in the interest of justice.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(C) The Hon'ble court be pleased to grant stay the
execution and implementation of the impugned order passed in
Civil Appeal No. 6/2022 by the Additional Principal Judge,
City Civil Court No.2, Ahmedabad as well as order dated
19.12.2022 passed by the Estate Officer and be pleased to
protect the possession of the petitioner qua the suit property
in question as mentioned in the memo of appeal till final
disposal of this petition.
(D) Grant any other and further orders which this Hon'ble
Court may deem fit and proper to grant."
7. Heard Mr. Mehul S. Shah, the learned Senior Counsel
assisted by Mr. J. R. Shah, the learned advocate appearing for
the writ-applicants lessees and Ms. Manisha Lavkumar, the
learned Senior Counsel assisted by Mr. Aaditya P. Dave, the
learned advocate appearing for the respondent.
Submissions on behalf of the writ-applicant :-
8. Mr. Mehul S. Shah, the learned Senior Counsel
appearing for the writ-applicant lessee submitted that in the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
notice under Section 4, the Estate Officer must contain that
occupant is an unauthorized occupant and the Estate Officer
must form his opinion in the notice under section 4 that the
occupant is an unauthorized occupant.
8.1 Before initiating the proceeding under the Public Premises
Act, resolution requires to be passed by the authority. Placing
reliance on the aforesaid submission, the authority contended
that the resolution dated 21.2.2022 has been passed, but the
same has not been produced before the trial court.
8.2 The Estate Officer requires to frame the issue from the
pleadings.
8.3 It is duty of the original plaintiff to prove their case by
leading oral evidence and chance is required to be given to the
other side for cross-examination. The original plaintiff requires
to produce evidence and the original documents.
8.4 The original plaintiff requires to give necessary notice
under Section 111 of the Transfer of Property Act before
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
initiating proceedings under the Public Premises Act.
8.5 As per the guideline issued by the Government, Public
Premises Act is not applicable to the facts of the present case.
8.6 The Estate Officer requires to record submissions and
evidence in the impugned order.
8.7 The Estate Officer requires to pass a reasoned order.
8.8 As per the provision of law, Estate Officer requires to
apply his own mind and pass the necessary order. Placing
reliance on the aforesaid submissions, it was submitted that
had the Estate Officer framed the issue, original plaintiff had
produced the evidence and also led the oral evidence.
8.9 It is necessary for the original plaintiff to contend in the
plaint that the occupant is an unauthorized occupant.
8.10 The Estate Officer has wrongly framed issues in the
impugned order more particularly issue No. 2. As per the
provision of law, negative is not required to prove.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
8.11 It was submitted that original plaintiff has relied upon
the Resolution No. 147 dated 7.6.2012 and on the basis of the
same alleged that the original defendant - writ-applicant
herein has committed default, even then said document has
not been produced before the trial court. Issue is, that if the
said resolution has not been produced, then how the Estate
Officer able to refer and rely upon the same and pass any
order in favour of the original plaintiff.
8.12 Bonafide requirement claimed by the respondent -
original plaintiff has already been claimed in the year 1980 but
the same has been given up by the original plaintiff and
almost after 40 years, once again eviction has been sought on
the same ground.
8.13 Placing reliance on the documents produced at Annexure-
D it was submitted that the respondent has prepared the draft
order and forwarded to the Estate Officer and, therefore, the
Estate Officer has not authored the order. As per the law,
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
Estate officer has been appointed and the Estate Officer is
required to act as Judge to adjudicate the matter and pass
necessary orders. In the facts of the present case instead of
applying his own mind and constructing the order, learned
Estate Officer has only signed the order which has been
prepared by some one else from the office of the respondent
and accordingly the order impugned is absolutely illegal and
contrary to the provisions of the Act.
8.14 It was submitted that the main ground of eviction as
contended by the respondent is to the effect that the lease was
executed in the year 2007 and the same expired in the year
2010 and thereafter no further lease has been executed and,
therefore, the writ-applicant is unauthorized occupant of the
premises.
8.15 It was further submitted that after the lease period was
over the respondent passed the Resolution No.64 dated
30.6.2010 and in the said resolution the respondent revised the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
rent and incorporated the terms and conditions and, therefore,
considering the said resolution dated 30.6.2010 it is improper
and illegal to accept the case of the respondent that after the
lease was over there was no renewal.
8.16 It was submitted that even assuming for the sake of
argument as contended by the respondent that after the lease
period was over, no lease has been executed, that under such
circumstances there was no reason for the respondent to pass
such resolution dated 30.6.2010. It was submitted that the
aforesaid clearly establishes tenancy created by the respondent
which has been continued and accordingly necessary resolution
came to be passed by the respondent.
8.17 It was submitted that it is not the case of the respondent
that the suit premises has been let out for the first time in the
year 2007 and lease document has been executed. On the
contrary, the writ-applicant and other tenants are occupying
the premises as tenant prior to 1980 and thereafter the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
respondent filed eviction proceedings against the tenants and to
support the aforesaid the writ-applicant placed on record the
order passed in Eviction Appeal No.31 of 1983 qua one of the
tenant and similarly one of the writ-applicant against whom
proceeding was initiated in the year 1982 and copy of the
order passed by the Estate Officer has been produced before
the learned trial Judge in the Eviction Case No.1 of 1983 and
thereafter tenancy right came to be created by the respondent
in favour of the writ-applicant as well as other tenants were
prior to 2007.
8.18 It was submitted that many years after creating tenancy
rights for the first time in the year 2007 lease document was
executed. It was submitted that after the resolution passed by
the respondent on 30.6.2010 correspondence has been
exchanged between the writ-applicant and the respondent
between 2012 to 2021 and the same has been produced before
the learned Estate Officer, even though the learned trial Court
thought it fit not to consider the same and the same is not
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
answered.
8.19 It was submitted that even assuming that the lease was
over and the same was not renewed and, therefore, the writ-
applicant is unauthorised occupant, even under such
circumstances notice under the provisions of Transfer of
Property Act was required to be given to the writ-applicant
and the same has not been given in the present case by the
respondent. On the aforesaid ground alone, the order
impugned requires to be quashed and set aside.
8.20 It was submitted that the respondent themselves having
admitted in the plaint, more particularly in para-2 that the
writ-applicant has paid rent as per Resolution No.64 dated
30.6.2010, the writ-applicant herein having not produced the
rent receipt in support of the statement would not in any way
change the nature of the writ-applicant i.e. being tenant of the
property.
8.21 It was submitted that the writ-applicant has paid
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
necessary rent until 2022 thus the order impugned passed by
the trial Court is erroneous.
8.22 It was submitted that the Estate Officer had only passed
the order of eviction, however the trial Court while passing
the impugned order in para-41 directed the writ-applicant
herein to pay four time legally due recoverable rent and to
support this direction the learned trial Court discussed the
same in paragraphs 37 to 40 of the impugned order.
8.23 The respondent having not preferred an appeal
challenging the order passed by the Estate Officer, it was not
open for the trial Court to pass such direction in appeal filed
by the writ-applicant herein and, therefore, such direction
given to the writ-applicant is required to be quashed and set
aside. It was submitted that the trial Court without
ascertaining the outstanding amount used the word "four times
legally due recoverable rent" and, therefore, the issue arises
that since the issue of what is due and recoverable rent, the
trial Court passed the impugned order without ascertaining the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
rent recoverable and in view thereof the same is required to
be quashed and set aside.
8.24 Placing reliance on the aforesaid submissions, It was
submitted that the writ-applicant is in possession and
occupation of the suit property for many years as tenant and
paying the rent regularly and in view thereof the orders
impugned passed by the trial Court as well as the Estate
Officer are required to be quashed and set aside.
Submissions on behalf of the respondent :-
9. Heard Ms. Manisha Lavkumar, the learned Senior
Counsel assisted by Mr. Aaditya P. Dave, the learned advocate
appearing for the respondent.
9.1 Ms. Manisha Lavkumar, the learned Senior Counsel
submitted that the present writ-application has been filed by
the writ-applicant challenging concurrent findings by the Estate
Officer under Section 5 of the Gujarat Public Premises Act
(Eviction of Unauthorised Occupants) Act, 1972 [hereinafter
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
referred to as the "PP Act"] and the Ld. District Judge under
Section 9 of the said Act.
9.2 From the admitted factual matrix, the following facts are
undisputed:
(a) Lease Agreements of all the writ-applicant lessee has
admittedly expired in the year 2010. After which, despite
negotiations, the same have not been renewed.
(b) The respondent Panchayat has over the years addressed
several communications to the writ-applicant lessee asking him
to evict the premises. Hence, there was never a positive assent
of the Panchayat for the writ-applicant to remain in possession.
(c) The writ-applicant's reliance on Resolutions to justify
nonpayment of lease amount or not entering into Agreements
under the guise of the said Resolution as binding Agreements
is baseless. Since, in fact the Resolution was merely an in-
principle assent given to enter into a lease deed on certain
terms, which admittedly, was never entered into.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
9.3 Ms. Shah, the learned Senior Counsel submitted that
thus, admittedly, when the lease period has expired by efflux
of time and also has been determined by way of several
notices, the writ-applicant lessee become "Unauthorized
Occupant" under the provisions of the PP Act.
9.4 Ms. Shah, the learned Senior Counsel reliance on Section
2(h) of the PP Act.
9.5 Ms. Shah, the learned Senior Counsel submitted that
therefore, upon expiration of the lease on basis of which the
writ-applicant lessee was in possession of the present public
premises, the same was "unauthorized occupant" within the
meaning of the said section. Moreover, there is no question of
determination, when admittedly, the lease period had expired
and there existed no lease after its expiration in the year 2010.
9.6 Ms. Shah, the learned Senior Counsel submitted that
Lease Agreements entered into between the petitioners and the
Ahmedabad District Panchayats, are governed by the provisions
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
the Gujarat Panchayat Act, 1993 (hereinafter referred to as 'the
Act' for short).
9.7 Ms. Shah, the learned Senior Counsel submitted that
therefore, unless the lease agreement is made and governed
between the parties in accordance with the provisions of the
Gujarat Panchayat Act, the lease agreements cannot be entered
into. The lease in question was entered into for a period of 2
years, 11 months and 29 days, which expired in the year
2010.
9.8 Ms. Shah, the learned Senior Counsel submitted that in
any case, in accordance with the definition of Section 2(h) of
the Public Premises Act, the lease period has expired and
hence, the writ-applicant lessee is 'unauthorized occupant' and
deserve to be evicted in accordance with the mandate of the
Public Premises Act.
9.9 Reliance placed by the writ-applicant on the decision in
the case of New India Assurance Company Ltd., vs. Nusli
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
Neville Wadia and Ors., reported in AIR 2008 SC 876, wherein
the Apex Court held in para-35 that summary of evidence must
be recorded by the Estate Officer, for it being the creature of
statute must adhere to the same.
Ms. Shah, the learned Senior Counsel answering the said
contention submitted that the learned Apex Court was deciding
a case under The Central Public Premises Act, 1972,
whereunder Rule 5 of the said Act provides for recording of
summary of evidence. Whereas, there is no equivalent rule
under The Gujarat Public Premises Rules and hence, the
reliance on the said judgement and the consequential argument
to record evidence is misplaced. It was submitted that when
upon the admission of the writ-applicant the lease period has
expired, there exists no subsisting lease agreements since its
expiry in the year 2010, there is no evidence required to be
recorded or controverted. The admitted facts remain undisputed
to hold that the writ-applicant lessee is unauthorized occupant,
liable to eviction under the Act.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
To substantiate the aforesaid contention Ms. Shah, the
learned Senior Counsel placed reliance on para-8 of Jain Ink
Manufacturing Company vs. LIC, reported in (1980) 4 SCC 435,
that the proceedings under the Public Premises Act are
"summary" in nature and hence there is no mandatory
requirement of elaborate evidence, cross-examination etc.
9.10 It was submitted that the contention raised by the writ-
applicant herein that the Estate Officer passed the impugned
order relying on the Draft Order prepared by one of the
officers which is actually a Draft Notice which is a submission
made by the officer in ordinary course of government
businesses. It was further submitted that the Annexure-D relied
upon by the writ-applicant itself shows that that it is only a
submission subject to approval, modifications and or rejections
if any. The said one paragraph of the submission does not
constitute the order which runs into 15-pages including
recording of submissions, analysis thereof and findings in terms
thereof.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
9.11 It was also submitted that it is not even the case of the
writ-applicant that the order lacks any material particulars.
9.12 Placing reliance on the aforesaid it was submitted that in
absence of any material particulars missing in the impugned
order, the said objection deserves to be rejected. To
substantiate the aforesaid submissions, Ms. Shah, the learned
Senior Counsel placed reliance on the the decision in case of
Mayur Jayantilal Parikh v. State of Gujarat [SCA 14992 of
2018].
9.13 Placing reliance on the aforesaid submissions, Ms. Shah,
the learned Senior Counsel submitted that no interference is
warranted under Article 227 of the Constitution of India
wherein the findings are concurrent findings of fact and the
same are not perverse.
10. The aforesaid submissions advanced by Ms. Shah, the
learned Senior Counsel came to be controverted by Mr. Mehul
Shah, the learned Senior Counsel appearing for the writ-
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
applicant wherein it was mainly submitted that the writ-
applicant lessee was required to be permitted to occupy the
premises on the ground of promissory estoppel.
10.1 It was submitted that the writ-applicant being the tenant,
it is the right of tenant to continue occupation "holding over"
in terms of Section 116 of Transfer of Property Act, 1882.
10.2 Ms. Shah, the learned Senior Counsel also reiterated the
submission that Resolution No.64 passed in the year 2010 was
not binding between the parties.
10.3 Placing reliance on the aforesaid submissions, it was
reiterated that in absence of any order or further agreement
terminating the lease between the parties, the parties are
governed by the said agreement. In view of the aforesaid, Mr.
Shah, the learned Senior Counsel submitted that the impugned
orders are required to be quashed and set aside.
11. Ms. Manisha Lavkumar, the learned Senior Counsel
refuted the said by submitting that the aforesaid submissions
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
advanced by Mr. Shah, the learned Senior Counsel by
submitting that there was no promise or binding action
undertaken by the respondent whereunder the respondents
were estopped from evicting the writ-applicant. It was
submitted that Resolution No.64 was merely to approve the
rate at which Panchayat would be "agreeable" to enter into
the agreement. Admittedly the said agreement never
materialized. Hence, mere acceptance of rent at rates
unilaterally decided by the writ-applicant lessee would not
amount to giving rise to any estoppel contrary to the statutory
stipulation. Moreover, the writ-applicant lessee declined to
enter into a fresh lease agreements as per the prevalent jantri
rates from 2012 onwards.
11.1 It was submitted that in absence of any promise or
positive assent by the respondent there may not any
promissory estoppel. Placing reliance on Section 157 of the
Gujarat Panchayats Act, 1993 it was reiterated by Ms. Shah,
the learned Senior Counsel that Section 157 of the Act requires
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
entering into lease agreement in a particular mode, lest the
same shall be void, the writ-applicant lessee cannot claim any
equity to say estoppel would override statutory provision.
11.2 It was submitted that Section 110 applies to village
panchayat and there is no such provision for District
Panchayat, however, the said submission was clearly
misleading. Ms. Shah, the learned Government Pleader
submitted that Section 157 applies to district panchayats which
is parimateria to Section 110 of the Gujarat Panchayat Act and
parties are governed by Section 157 of the Gujarat Panchayats
Act.
11.3 It was lastly submitted that the writ-applicant lessee
accepted and admitted that there are no rules under the
Gujarat Public Premises Act which mandatorily require the
recording of evidence.
11.4 Submission by Mr. Shah, the learned Senior Counsel that
Section 8 of the Act empowers the authority with the powers
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
of the civil court. It was submitted that Eviction Officer and
the Appellate Authority were based on the "unequivocal
admission" of the expiry of the lease agreements, [Please see:
Page 36 of the Petition] there was no further requirement on
part of the Eviction Officer to analyze or interpret evidence to
evince truth from the writ-applicant.
11.5 Placing reliance on the aforesaid, it was submitted that
the writ-application filed by the writ-applicant being devoid of
merit be dismissed with cost.
Analysis :-
12. It is apposite to refer to Sections 2(h), 4 and 5 of the
Public Premises (Eviction of Unauthorized Occupants) Act, 1971
read thus :-
"2(h) "unauthorised occupation" in relation to any public
premises, means the occupation by any person of the public
premises without authority for such occupation, and includes
the continuance in occupation by any person of the public
premises after the authority (whether by way of grant or any
other mode of transfer) under which he was allowed to
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
occupy the premises has expired or has been determined for
any reason whatsoever."
"4. (1) If the competent officer is satisfied-
(a) that the person authorised to occupy any public premises
has--
(i) not paid rent lawfully due from him in respect of such
premises for a period of more than two months, or
(ii) sub-let, without the permission of the State Government
or, as the case may be,the corporate authority, the whole or
any part of such premisses, or
(iii) committed, or is committing such acts of waste as are
likely to diminish materially the value, or impair substantially
the utility, of the premises, or
(iv) otherwise acted in contravention of any of the terms,
express or implied, under which he is authorised to occupy
such, premises, or
(b) that any person is in unauthorised occupation of any
public premises, or
(c) that any public premises are required for any other
purpose of the State Government, or, as the case may be, the
corporate authority to whom such premises belong, the
competent officer shall, notwithstanding anything contained in
any other law for the time being in force issue in the manner
hereinafter provided a notice in writing calling upon all
persons concerned to show cause why an order of eviction
should not be made.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(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, to show cause, if any, against the
proposed order on or before such date as may be specified in
the notice, being a date not earlier than ten days from the
date of issue thereof.
(3) The competent officer shall cause the notice to be served
by post or by having it affixed on the outer door or some
other conspicuous part of the public premises, and in such
other manner as may be prescribed, whereupon the notice
shall be deemed to have been duly given to all persons
concerned.
(4) Where the competent officer knows or has reasons to
believe that any persons are in occupation of the public
premises, then, without prejudice to the provisions of
subsection (3), he shall cause a copy of the notice to be
served on every such person by post or by delivering or
tendering it to that person or in such other manner as may
be prescribed.
(5) If any person makes an application to the competent
officer for extension of the period specified in the notice, the
competent officer may grant the same on such terms as to
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
payment and recovery of the amount claimed in the notice,
as it deems fit."
"5. (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 thereupon
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-section (2),
where a person who has been ordered to vacate any public
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
premises for the reasons specified in sub-clause (i) or (iv) of
clause (a) of sub-section (1) of section 4 pays to the
competent officer the rent in arrears or carries out or
otherwise 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."
12.1 It is also apposite to refer to Section 157 of the Gujarat
Panchayat Act, 1993 which reads thus :-
"S.157 ... Subject to the provisions of sub-section (2) no lease, sale
or other transfer of any immovable property vesting in, or acquired
by a panchayat shall be valid unless such lease, sale or other
transfer has been made with the previous sanction of the competent
authority.
(2) In the case of a lease of immovable property other than the
property vesting in the panchayat under section 108, no such
previous sanction shall be necessary, if the period of lease does not
exceed three years."
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
13. Heard the learned counsels appearing for the respective
parties. The following emerge for consideration of this Court;
13.1 The writ-applicants herein and the respondent Panchayat
entered into a Lease Agreement dated 4.8.2007 and
respectively.
The Lease was specifically mentioned to be at-will.
Hence, no claim under the Rent act or any other law can be
sought for.
The lease agreement entered into between the parties
expired by efflux of time. On 7.4.2010, communication came
to be issued by the respondent Panchayat to the writ-applicant
calling upon the writ-applicant to enter into new agreement
and to attend the meeting dated 19.04.2010 (for fixation of
rent increment). The aforesaid communication has been
referred to by the writ-applicant in letter dated 09.11.2012 at
page.114 of the paper-book. On 30.6.2010, the respondent
panchayat passed Resolution No. 64 which is duly produced
at page-106 of the paper-book. The said Resolution gives the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
approval for entering into the Rent Agreements at the agreed
rates. The resolution was an in-principle agreement and not a
binding contract between the parties. The said resolution
concluded as under :-
The aforesaid increment in lease amount and approval for
entering into lease agreement is unanimously resolved to be
granted.
13.2 On 16.8.2010, the respondent addressed a
communication to the writ-applicant and other lessees requiring
them to pay the remaining dues as per the Resolution No. 64
(page-106 of the paper-book-1). Undisputedly the writ-applicant
lessee failed to make the payment of the agreed amount of
rent from 1.7.2009 till 31.8.2010 @ page-108 of the paper-
book. On 18.8.2010, the respondent herein addressed a
communication to the lessees regarding payment of the rent as
well as to execute a rent agreement as per the new rate (page-
109A of the paper-book). Undisputedly the lease agreement
was neither renewed nor was the lessee i.e. the writ-applicant
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
occupying the premises with any legal authority. On 30.3.2012,
the lessee addressed communication stating that the writ-
applicant lessee was ready and willing to execute rent
agreement and had sent a draft for finalization (page-110 of
the paper-book). Despite the lease agreement having expired in
the year 2010 a new lease agreement had not been executed.
13.3 The sending of draft by the writ-applicant herein would
not entail that the lease agreement stood renewed. In fact,
non-execution of the lease agreement stipulates that the draft
was not accepted by the respondent authority. On 2.7.2012,
the Resolution No.147 was passed by the respondent in view of
the revised Jantri (land record prices as notified by the State
Government) rates. On 4.7.2012, communication was addressed
by the respondent to the writ-applicant lessee stating that the
Resolution No.147 passed by the respondent Panchayat had
unanimously agreed for the increment in rent (page-111 of the
paper-book). The writ-applicant lessee affixed his signature and
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
endorsement on the said communication reading "rent is not
acceptable". Hence in any case the parties were not ad idem.
13.4 On 19.10.2012, the respondent thereafter issued a
communication seeking eviction of the said writ-applicant
lessee stating that the rent agreement was not renewed and
also the arrears of the rent were not paid despite several
reminders (page-113 of the paper-book). The respondent in
the said communication informed the writ-applicant lessee that
as per Resolution No.147 rent increment was fixed. The writ-
applicant lessee was informed to pay the arrears and enter into
new rent agreement, which was not done. By the said
communication, eviction of the lessee was sought considering
that there existed no lease agreement between the parties as
also the fact that the rent dues remained unpaid. Hence, even
otherwise, the lease stood terminated/determined even after
expiry by efflux of time.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
13.5 On 9.11.2012, the writ-applicant lessee replied to the
said notice stating that the lessee has paid the rent which was
increased as per the old Resolution No.64 of 2010 (page-114 of
the paper-book). Significantly, the writ-applicant lessee in the
last para of the notice accepted that the lease agreement was
not renewed. On 13.7.2015, the respondent issued a
communication to the writ-applicant lessee requiring the writ-
applicant to remain present in the meeting dated 14.07.2015 in
order to discuss the rent arrears. The said negotiation between
the parties were never materialized and the same could not
be construed to mean extension of the lease of the writ-
applicant lessee.
13.6 On 18.7.2019, the writ-applicant lessee issued a
communication to the respondent stating the following (page-
122 of the paper-book) :
(i) The writ-applicant lessee was ready and willing to pay
only as per the 15% increase from 2019 onwards.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(ii) The writ-applicant lessee agreed to enter into new
agreement subject to the premises being transferred to the sub-
lessees to whom the writ-applicant lessee had let out the
premises pending the litigation.
13.7 On 27.08.2021 (@ page-123 of the paper-book), the
Executive Committee rejected the proposal made by the writ-
applicant lessee as the writ-applicant was not person from any
marginalized communities or government recognized
beneficiaries of any scheme, etc. Hence, the writ-applicant
lessee could not be granted the premises at lesser than
competitive market rates. Further the respondent Panchayat
resolved to take necessary action in pursuance of the same.
13.8 On 6.5.2022, the respondent Panchayat issued a legal
notice to the writ-applicant lessee calling upon the writ-
applicant lessee to evict the premises, stating the following
grounds:
(i) Bonafide requirement of use by the Respondent [internal
page-2 @ page-51 of paper-book]
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(ii) Non-payment of rent [para 3 at internal page-3]
The writ-applicant lessee responded to the said notice
vide their reply raising the following objections:
(i) No bonafide use. [para 3 at page. 55]
(ii) Non-payment of rent was wrong allegation, and
admittedly the writ-applicant lessee had paid the same rent
since 2010 resolution without any agreed increase. [para 4 at
page 57]
13.9 On 6.6.2022, the respondent Panchayat addressed a
rejoinder to the reply to the legal notice. In the said rejoinder
the writ-applicant lessee was served with a copy of the
following:
(a) Resolution No. 147 dated 01.04.2012.
(b) All the Notices given on various instances demanding the
lease amounts.
(c) Details of the unpaid lease amounts.
(d) Resolution No. 21/3 dated 21.02.2022
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(e) Consent proposal given by the writ-applicant on
18.07.2009
(f) Resolution dated 02.09.2021 rejecting the aforesaid
consent proposal.
13.10 In the meantime, the respondent authority sealed
the premises in question in possession of the writ-applicant
lessee which resulted into filing of the Civil Suit CCC 890 of
2022 seeking injunction before the City Civil Court
Ahmedabad which came to be granted in favour of the writ-
applicant lessee directing the respondent to unseal the
premises.
13.11 The respondent being aggrieved by the impugned order
dated 8.7.2022 approached this Court by filing Appeal From
Order No.130 of 2022 which came to be disposed of upholding
the order passed by the learned Civil Civil Court, Ahmedabad
and observed that appropriate proceedings under the Public
Premises Eviction Act be initiated, keeping it open for the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
respondent authority to initiate appropriate proceedings under
the Public Premises Eviction Act.
13.12 On 22.7.2022, Inquiry Application No. 26 of 2022
came to be filed before the competent Authority by the
respondent herein under the Public Premises Eviction Act, 1972
(page-3 of the paper-book). Notice came to be issued on
25.7.2022 under section 4 of the Act by the competent
authority (page-1 of the paper-book). On 6.9.2022, reply came
to be filed by the writ-applicant lessee before the competent
authority (page-5 of the paper-book).
13.13 On 19.12.2022, the competent authority passed eviction
order under Section 5 of the Act considering the writ-applicant
lessee as "unauthorized occupant" as defined under section 2(h)
of the Act. The competent authority recorded his "satisfaction"
as regards the writ-applicants being unauthorized occupants
with the conclusion of the lease period of 2 years, 11 months
and 29 days, since 2010 in the said order. This aforesaid is
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
admitted by the writ-applicant lessee. The said order dated
19.12.2022 passed under Section 5 of the Act reads thus :-
"Thus, considering representation of both the parties as
well as the details of available records, it appears that various
offices of District Panchayat are functional above the show-
room situated on the ground floor in the building known as
Ahmedabad District Panchayat. Among the said show rooms,
after the rent agreement with the Jilla Panchayat, Ahmedabad
for the Show Room/Shop No.1, admeasuring area of 251.00
(Ground Floor) + 219.00 (Area of margin) i.e. the property in
possession admeasuring total area of 470.00 sq.ft. ended in the
year 2010, no new rent agreement has been made between the
complainant and the occupant. It is corroborated from the
records.
As per the provisions made in the section - 4 (1)(A) (1)
to (4) of the Gujarat Act No.12 of 1973 The Gujarat Public
Premises (Eviction of Unauthorised Occupants) Act, 1972, the
rent due as per the rules for the period of more than two
months in connection with such property has not been paid.
Further, as per the resolution passed in the general body
meeting of the Jilla Panchayat, Ahmedabad on 21/02/2022, it
has been resolved to get back the occupation of the shops of
the Jilla Panchayat, Ahmedabad located at the ground floor
since the Jilla Panchayat, Ahmedabad does not have sufficient
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
space for its office building. Further, as per the provision in
section - 4 (1)(B), it has been been specifically provided that
if any person is in unauthorised occupation of any public
premises or as per section - 4 (1)(C), when any public
premises are required for any other purpose of the State
Government, or, as the case may be, the corporate authority
to whom such premises belong, such premises given on rent
can be evicted.
Thus, considering the provisions of section - 4 (1)(A)
(1), 4 (1)(B) and 4 (1)(C) of the Gujarat Act No.12 of 1973
The Gujarat Public Premises (Eviction of Unauthorised
Occupants) Act, 1972, it appears that the proprietor of the
Associate Manu. and Suppliers, Kalpeshbhai Kiritbhai Shah is
an unauthorised illegal occupant of the property of Show
Room No.1, admeasuring area of 251.00 (Ground Floor) +
219.00 (Area of Margin), i.e. total 470.00 sq.ft. area located at
the ground floor of S.No.4284/AP/11/3 paiki of Jilla
Panchayat, Ahmedabad among the property with independent
ownership and occupation of the Ahmedabad Jilla Panchayat
bearing Sessions No.2354/11/3 paiki of the Ahmedabad
Municipal Corporation. Moreover, in the interim order passed
by the Hon'ble High Court in the Civil Suit No.890/2022 filed
by the Jilla Panchayat, Ahmedabad, it has been stated to take
action as per the provisions of the Gujarat Public Premises
(Eviction of Unauthorised Occupants) Act to get back the
possession of the said place. Thus, it is established that the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
respondents have violated all the provisions of the section - 4
(1)(A)(1), 4 (1)(B) and 4 (1)(C) of the Gujarat Act No.12 of
1973 The Gujarat Public Premises (Eviction of Unauthorised
Occupants) Act, 1972.
Thus, it is also not established that the facts stated by
the respondents in the written reply submitted by them in
their defence are true.
After completing all the procedures as per section - 5
(1) of the Gujarat Act No.12 of 1973 The Gujarat Public
Premises (Eviction of Unauthorised Occupants) Act, 1972 and
considering the abovementioned facts, I pass the following
order as per the power conferred upon me.
Order
I, Mr. Suraj Barot, the competent authority and Deputy
District Development Officer (Revenue) Jilla Panchayat,
Ahmedabad (Appointed vide Notification No. Gh/J/15/75(A)
EVC 1173 A (A) dated 15/04/1975 of the Civil Construction
Department) pass the order that the Eviction Application
No.22/2022 of the complainant/applicant is allowed and the
respondent proprietor of the Associate Manu. and Suppliers,
Kalpeshbhai Kiritbhai Shah shall hand over the actual, vacant
and peaceful possession of the disputed property of Show
Room No.1, admeasuring area of 251.00 (Ground Floor) +
219.00 (Area of Margin), i.e. total 470.00 sq.ft. area located at
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
the ground floor of S.No.4284/AP/11/3 paiki of Jilla
Panchayat, Ahmedabad among the property with independent
ownership and occupation of the Ahmedabad Jilla Panchayat
bearing Sessions No.2354/11/3 paiki of the Ahmedabad
Municipal Corporation to the complainant/applicant within 30
days from the service of this order as per section - 4 (1)(A)
(1), 4 (1)(B) and 4(1)(C).
The order is passed today on 19/12/2022.
Sd/-(Illegible)
Dy. District Development Officer,
(Revenue) Jilla Panchayat,
Ahmedabad."
13.14 Being aggrieved by the said order passed by the
competent authority, as referred above, the writ-applicant
lessee preferred Appeal under Section 9 of the Act being
Regular Civil Appeal No.6 of 2022 before the City Civil Court
(page-121 of the paper-book) which came to be rejected vide
order dated 23.6.2023 passed below Ex.23 confirming the
findings by the competent authority that the writ-applicant
lessee herein is in unauthorized occupancy of the shop, with
the lease having lapsed in the year 2010.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
13.15 It is apposite to refer to the order dated 23.6.2023
passed below Ex.23 in the Regular Civil Appeal No.6 of 2022
by the learned City Civil Court, Ahmedabad, paragraphs 4, 6
to 8, 10 to 27, 30, 31, 34 to 41 read thus :-
"{4} So, being disappointed by the order passed by the Competent
Authority and Deputy Development officer (Revenue) Ahmedabad.
The original appellant/opponent has challenged the impugned order
before this court on various grounds by filing this RCA. main
grounds are....
1) The Competent Authority and Deputy Development officer
(Revenue) Ahmedabad has not written the said order but somebody
has written and only signed by him therefore it is not a legal
order.
2) The appellant/opponent submitted some documents and raised
material dispute before competent Authority but
respondent/applicant has failed to produce rebuttal documents even
though competent authority has passed mechanical order and has
required it to be set aside.
3) competent authority has not framed the issues and has passed
the eviction order therefore order is illegal and required to be set
aside.
4) competent authority has not considered the documents produced
by the appellant/opponent and passed the illegal order with
intention to help the respondent/applicant. After the expiration of
the rent agreement the opponent/appellant is not a trespasser but
he is still legally tenant of the disputed premises, therefore
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
respondent/applicant has no right to take possession from the
opponent/appellent. no notice is given to terminate the rental
agreement.
5) the respondent/applicant has taken illegal grounds in his eviction
application.
6) The respondent/applicant has not produced any documents with
regard to the bonafide requirement of the premises. If the property
is vacated, the opponent/appellant will suffer a lot of hardship. 7)
The opponent is regularly paying rent to the applicant, therefore
tenancy has not been terminated.
-: Issues:-
{6} 1. whether the appellant/opponent proves that the order passed
by the competent Authority and Deputy Development officer
(Revenue) Ahmedabad in eviction case no.22/2022 on.19-12-2022 is
illegal, perverse and arbitrary and therefore it should be set aside
by allowing this appeal?
2. What order?
{7} my answer to the above issues as under...
1, In the negative.
2. as per final order
{8} The respondent (now referred as Applicant) had filed the
eviction case no.22/2022 under section-5 of the Gujarat public
premises (eviction of unauthorized occupants act ) 1972 ( now
referred as an act ) against the appellant (now referred as
opponent) before competent Authority and Deputy Development
officer (Revenue) Ahmedabad. (now referred to as a competent
Authority), the brief facts of the case ( now referred as an
Application) the disputed premise/ showroom/shop no.1 an ad
measuring total 470.00 square feet situated at ground floor, District
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
Panchayat Building, Lal Darwaja, Ahmedabad. the applicant is the
owner of such premises. The opponent had obtained such premises
on rent through a rental agreement from the applicant and a rent
note was also made on 04-08-2007, the agreement was made only
for Two year eleven month and Twenty nine days, Such rent
agreement expired on 02-08-2010 and has not made any new
agreement between the applicant and opponent. Further, as per
resolution no.147 dated- 07-06-2012 passed by the executive
committee, it has decided to take possession of the premises. The
committee has also fixed a new rent amount, even though the
opponent is paying the amount as per rent agreement made on 07-
08-2007. Further District Panchayat has not enough space for office
and therefore it has decided to get possession of such premises.
further case is that as per the order of the hon'ble high court he
has followed the due procedure under the provisions of The Gujarat
public premises act-1972 and that very purpose applicant had filed
eviction application no.22/2022 on 22- 07-2022 before competent
Authority and prayed to passed an order for eviction in favor of the
applicant and also requested to recover the outstanding amount of
Rs. 19,42,620/00 from the opponent for unauthorized use of the
premises.
{10} I considered the arguments and documents which were
submitted by both sides before competent authority. I also perused
the record of the eviction case no.22/2022 and order which has
been passed by the competent authority on 19-12-2022. The
disputed premises is showroom/shop no.1 total ad measuring 470.00
square feet with marginal space situated at ground floor district
panchayat building, Lal Darwaja, Ahmedabad. The applicant is the
owner of the premises, such premises obtained by the opponent
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
from the applicant on rent Agreement and for that very purpose the
rent agreement had been made between the applicant and the
opponent on 04-08-2007. It was made only for Two years eleven
months and Twenty nine days. A rent agreement has been produced
by the applicant. It clearly seems that the rent agreement was made
between both the parties before sub registrar Ahmedabad and it
was registered on 04-08-2007 by sub registrar Ahmedabad. I
perused the condition no.13 of the rent agreement. It is valid for
35 months and 29 days from 04-08-2007. It means that the rent
agreement is not made for a complete three years. So, the rent
agreement expired on 03-08-2012. As per say of the applicant after
completing the period of rent agreement, the rent agreement has
not been renewed.
{11} As per say of the opponent, he is still continuing as tenant of
the disputed property and he is paying rent regularly but he has
not produced a new rent note or he has not produced any rent
receipts of rent amount before competent Authority as well as this
court also. Therefore, how can I believe that the opponent is still
continuing as a tenant of the disputed premises but considering the
original eviction application no. 22/2022 respondent/ applicant
mentioned that the opponent/appellant are paying rent as per the
resolution no. 64 on 30-06- 2010. Further opponents say that the
applicant had passed resolution no.147 on 07-06-2012 and raised a
dispute with respect to the rent but till today he has not been
Implemented therefore the opponent is not bound to pay rent as
per resolution no.147, the opponent has not accepted and did not
give any consent with the resolution no.147, so resolution no.147 is
illegal but in my view the owner of premises is the applicant, if he
has not implemented resolution no.147 it does not mean that
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
resolution no. 147 is illegal. Whatever resolution passed by the
applicant with respect to the rent then the opponent is duty bound
to accept it and should pay rent as per such resolution. How can
an opponent say that he will not accept and will not follow the
terms and conduction of the resolution no.147, as per say of the
opponent that the opponent has been paying rent as per resolution
no.64 and such rent paid till date 30-06-2010 but as discussed
above the opponent has not produced a rent receipt. A district
panchayat is a statutory body, if he receives rent amount then he
definitely issues a receipt but the opponent has not produced rent
receipt it means that he has not paid rent amount. If the rent
amount is paid by the opponent through cheque or other mode,
then the opponent has to produce a statement of bank account but
has not been produced. The learned advocate argued that the
applicant had filed eviction application no.22/2022 before
competent authority on maily three grounds (1) the opponent is
unauthorized occupants (2) the opponent has not paid rent (3)
disputed premises required for bonafide purpose.
{12} The learned advocate for the opponent relies upon the
Judgment of New India Assurance Company Ltd. Vs. Nusli Neville
Wadia and ors reported in AIR 2008 SC page-876 and argued that
while deciding the eviction application, the estate officer was
required to frame the issue. Further the landlord needs to lead oral
evidence and only thereafter it is for the defendant to lead the oral
evidence and chance of cross examination must be given to the
defendant. I will discuss the issue with respect to the framing of
the issue and lead an evidence letter on but the estate officer had
given an opportunity to the opponent for production of documents
but the opponent has not produced any single documents, the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
opponent failed to show that he is an authorized occupants,
Learned Advocate also relied upon the Judgment of Ashoka
marketing Ltd Vs. Punjab National Bank reported in 1991 SC page-
855 but facts of the cited Judgment differ from the case on hand.
{13} He relied on the Judgment of The Indian Bank Bangalor Vs.
Blaze and Central (P) Ltd reported in AIR 1986 Karnataka Page- 258
and the Judgment of Union of India Vs. T.R.varma reported in AIR
1957 SC page-882 and argued that Principal of natural Justice to be
followed by the estate officer and he should hold the inquiry as per
rule-5, for that very purpose i considered the record and preceding
of the eviction application no.22/2022, it clearly seems that the
estate officer has followed the due procedure, he has issued notice
under section-4 of the act to the opponent and the opponent
appeared through the learned advocate Mr.J.R.Shah and filed reply
therefore it can not be said that the estate officer has not followed
the due procedure and had not given any opportunity.
{14} Learned advocate for the opponent relied upon the Judgments
of Safari Airways Vs. The Estate officer reported in AIR 1983 Delhi
page- 347. and the Judgment of Minoo Framroze Balsara Vs. The
Union of India reported in AIR 1992 Bombay Page- 375 and argued
that the estate officer must form his opinion that the occupant is in
unauthorized occupation in the notice given under section -4 of the
act. Now I have gone through the notice issued by the estate
officer. It appears that the estate officer clearly mentioned that the
opponent is an unauthorized occupant of the disputed premises.
{15} The learned Advocate for the opponent argued that the
opponent is not an unauthorized occupant of the premises and the
opponent is continuing to pay regular rent to the applicant. but I
do not agree with the contention of the learned advocate of the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
opponent because before filing the eviction application the appellant
had issued notice to the opponent but the opponent has not paid
and also not vacated the premises, he is not paying rent as per
resolution no.147, therefore the applicant has filed an eviction
application. Moreover, after filing the application the competent
authority had also issued notice to the opponent. The learned
advocate for the opponent has produced 9 (Nine) documents vide
ex-14.but has not produced any rent receipts. as on today disputed
premises are in possession of the opponent. As per say of the
opponent he is paying rent as per resolution no.64 but as discussed
above the opponent has not produced any rent receipts therefore it
can not say that he is paying rent. Considering all facts, the rent
agreement expired in 2010 and a new rent agreement has not been
made, opponent not paying rent as per resolution no.147, therefore
in my view the opponent is unauthorized occupant of the disputed
premises. the opponent has filed civil suit against the applicant it
does not mean that he is legally tenant and legally occupant of the
premises.
{16} Learned advocate for the opponent argued that the applicant
has issued notice on 06-05-2022 for terminating the tenancy but has
not called for hearing therefore not mention date in the order and
has not given explanation as to why applicant has not mentioned
date in the order. Further argued that the opponent has produced
an affidavit in chief examined before competent authority but has
not cross-examined to the opponent by the applicant therefore
opponent submitted an Pursis for closing the right to produce an
evidence of the applicant but competent authority is not a civil
court and has no right to record evidence on oath power to record
evidence has not been vested into the competent authority.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
{17} Considering section -5 of the Public Premises (Eviction of
Unauthorized Occupants) act-1971 read as under......
{18} Section-5:-Eviction of unauthorized 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 sub-clause (ii) of clause (b) of sub-section (2) of section
4, the estate officer is satisfied that the public premises are in
unauthorized occupation, the estate officer shall 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 but not later than fifteen days from the date of the
order, by all person 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.
{19} So, considering the above provision, the word used like
"pursuance of a notice under section-4 and any evidence produced
by him in support of the same," here in this case, competent
authority has issued notice to the opponent under section-4 of the
act. The applicant has to produce documents which he relies on,
and the applicant has produced the same. Further section-5 says
that after the personal hearing estate officer satisfied that the public
premises are in unauthorized occupation, the estate officer shall
make an order of eviction. section-5 does not say that the estate
officer shall record the evidence and pass the eviction order. but
considering the Judgment of New India Assurance Company Ltd. Vs.
Nusli Neville Wadia Reported in AIR 2008 Sc Page- 876. and
argued that While deciding the eviction application, the estate
officer was required to frame the issue. further the landlord needs
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
to lead oral evidence and only thereafter it is for the defendant to
lead the oral evidence and chance of cross examination must be
given to the defendant. Here in this case the applicant has not
examined any witness therefore there is no question for cross
examination of the applicant, if the applicant had examined any
witness then definitely the right of cross examine will have to be
the opponent.
{20} In my view any person unauthorized occupying any public
premises then owner of the premise has to file an eviction
application before the estate officer who is appointed under section-
3 of the act, with supporting evidence. The estate office will issue
notice under section-4 of the act and after hearing, if the estate
officer is satisfied that the public premises are in unauthorized
occupation, the estate officer will pass an order of eviction. there is
no provision to record the evidence. therefore not necessary to
submit an affidavit in chief examination by either party before the
estate officer. The public premises ( eviction of unauthorized
occupants) 1958 was enacted to provide for speedy machinery for
eviction of unauthorized occupants of the public premises. section-5
of the act provides for taking possession of the public premises
from the person who is in authorized occupation. section -7 of the
act provides for recovery of rent or damages in respect of public
premises from persons, who are in unauthorized occupation thereof.
{21} I have gone through the original record of the competent
authority, the first notice had been issued by the competent
authority on 25-07-2022, then another notice issued on 23-08-2022,
01-09-2022, 16-09-2022, 06/09/2022, 20-10-2022, la. advocate Mr.
Janak R. Shah appeared on behalf of the opponent before
competent authority and submitted an adjournment application on
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
10-08-2022. He filed a reply on 06-09-2022, and he has also filed
an affidavit in chief examination of the opponent even though he
argued the competent authority has not given opportunity for
hearing, so such an argument can not be accepted. the competent
authority had given full opportunity to the opponent to produce
evidence.
{22} The showroom/shop no. 01 admeasuring 251.00 (ground floor)
including Marginal Space, total 470.00 square feet property situated
at ground floor, District Panchayat Building, Lal Darwaja,
Ahmedabad. is public premises as per section 2 (e) of the public
premises (Eviction of unauthorized occupants) act 1971.
section-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 Unauthorized occupants) Amendment Act,1980 (61 of 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) ..........
(i)....
(ii).....
(iii).....
(iiia)....
(iv).....
(v).....
(vi)....
(vii).....
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(viii)....
3).......
(i).....
(ii)....
(iii)....
(iv).....
as per section-2 (c) "premises" means any land or any building or
part of a building and includes-
(i) the garden,grounds,and outhouse,if any, appertaining to such
building or part of a building,and
(ii) any fitting affixed to such building or part of a building for the
more beneficial enjoyment thereof,
impugned order passed by the estate officer as per the section 2 (b)
of the act....
{23} Considering the eviction application no.22/2022, the applicant
has filed an eviction application under the provisions of Gujarat
Public Premises (Eviction Of Unauthorized Occupants ) act-1972,
and the opponent has filed the appeal provision of the act of 1971
therefore learned advocate for the applicant argued that act of 1971
would not be apply. Now, look at the provision of section-2 (D)
and 2 (F) and 2 (H) of The Gujarat Public Premises (Eviction Of
Unauthorized Occupants ) act-1972.......
Section-2(d):- "Premises" means any land or any building or part of
a building and includes.....
(1)the garden,grounds and outhouse, if any,appearing to such
building or part of a building,and
(2)any fittings affixed to such a building or part of a building for
the more beneficial enjoyment thereof.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
Section -2 (F):- Public Premises:- means any premises belonging to
or taken on lease or requisitioned by, or on behalf of, the state
Government,and includes any premises belonging to, or taken on
lease by, or on behalf of....
(i) any Municipal Corporation constituted under the Bombay
Provincial Municipal Corporation Act,1949 or any Municipality
constituted under the Gujarat Municipalities Act,1963.
(ii) a Panchayat constituted under the Gujarat panchayat Act,1961,
(iii))....
(iv)....
(v).....
section-2 (H)..... 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.
{24} Considering the above provisions, District Panchayat
Ahmedabad is constituted under the Gujarat panchayat Act,1961
and it is a statutory local body. It is true that District panchayat
Ahmedabad is the owner of the disputed premises. Therefore, The
Gujarat Public Premises (Eviction Of Unauthorized Occupants ) act-
1972 would apply to this case. the opponent has not raised any
objection with respect to the ownership of the premises.
section-2 (b) "estate officer" means an officer appointed as such by
the central Government under section-3, the opponent has not
raised any objection with respect to the appointment of the estate
officer.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
{25} So, looking at the above provisions of law, the owner of the
disputed premises is a District Panchayat Ahmedabad. governed by
the State Government it is a statutory local body, therefore such
premises fall within the purview of the public premises under
section- 2(H) of the The Gujarat Public Premises (Eviction Of
Unauthorized Occupants ) act-1972. Eviction order passed by the
competent officer duly appointed by the State Government under
section-3 of the act. Considering the appeal memo and argument on
behalf of the opponent, the opponent has not raised any objection
with respect to the appointment of the competent officer, therefore
it is presumed that the estate officer performed his act as per law
and with legal authority.
{26} I have also considered section-2 (a) of The Gujarat Public
Premises (Eviction Of Unauthorized Occupants ) act-1972.......
Section-2 (a):- Competent Officer- means an officer appointed as
such by the state Government under section-3.
{27} The learned advocate for the opponent argued that the
panchayat has not issued notice for terminating the tenancy but
such argument can not be acceptable, in my view notice is not
required because tenancy is already expired and therefore panchayat
had passed resolution no. 147 on 07-06-2012 for taking possession
of the premises but the opponent has not expected the terms and
condition of the resolution no.147 and he is not paying rent as per
resolution no.147. The learned advocate for the opponent argued
that the applicant had filed the application before a competent
officer on three points (1) rent agreement is expired (2) rent
agreement not renewal and (3) property required for bonafide
purpose but the appellant has not produced any single evidence.
Considering the apple memo rent agreement has expired, the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
applicant has passed resolution no. 147 on 07-06-2012 but the
opponent has not accepted the terms and conditions of the
resolution no.147 and has not paid rent, if he paid rent then
definitely he produced rent receipts but has not produced. The
applicant has filed an eviction application with specific reasons that
rent agreement has not been renewed and property is required for
its own purpose. Considering the record it is true that the rent
agreement did not renew. The office of the District panchayat
Ahmedabad is situated at the area of Lal Darwaja in Ahmedabad
City, as the population of Ahmedabad District is increasing day by
day, the staff also needs to be increased so that the staff needs a
place to sit for doing work, and therefore District panchayat
Ahmedabad also needs property for that purpose. Lastly, I am of
the view that the opponent is an unauthorized occupant of the
disputed premises. It is the legal and moral duty of the opponent to
vacate the disputed premises for the interest of the District
panchayat Ahmedabad and the public at large also.
{30} So, here in this case the owner of the disputed premises is the
Ahmedabad District Panchayat. The rent agreement expired in 2010,
Ahmedabad District Panchayat as well as competent officers have
issued notice under section-4 of the act. All these facts are not
disputed facts, even though the opponent has not evicted the
premises and therefore the competent officer had passed the
eviction order and it is not an Illegal. Moreover the applicant is
Ahmedabad Panchayat and it is a local body therefore as per cited
above Judgment, the rent act will not be applied.
{31} The learned advocate for the opponent argued that the
applicant has not produced resolution no.64 and 147. From very
beginning i.e 2007 the opponent is a tenant of the disputed
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
premises and paying rent regularly. The learned advocate for the
applicant argued that the rent agreement expired in 2010 and has
not been renewed, therefore notice is not necessary to issue to the
opponent for terminating the tenancy, the opponent has not been
paying rent as per resolution no. 147. Therefore the opponent is
unauthorized on the premises and he should be evicted from the
premises. The learned advocate further argued that Ahmedabad
District Panchayat is a local body and premises are required also
for bonafide purposes. In my view the rent agreement is not
renewed even though the opponent is in possession of the disputed
premises therefore his possession is unauthorized. The opponent is
paying rent it does not mean that he is legally a tenant of the
disputed premises. Moreover as discussed earlier, the office of the
District panchayat Ahmedabad is situated at the area of Lal Darwaja
in Ahmedabad City, as the population of Ahmedabad District is
increasing day by day, the staff also needs to be increased so that
the staff needs a place to sit for doing work and therefore District
panchayat Ahmedabad also needs premises for that purpose.
{34} So, considering Resio laid down in the above cited Judgment
squarely apply to the case on hand here in this case rent agreement
is expired in year of 2010 and has not renewed, opponent is not
paying rent as per resolution no.147, as per opponent he is paying
rent as per resolution no.64. but in my view after 2010 the rent
agreement was not renewed even though, if the opponent was
paying rent then it would not create tenancy.
{35} I have gone through the original eviction application
no.22/2022, the applicant demanded a due rent amount of
Rs.4,85,655/00 with four times of that amount, so, the applicant
wants to recover a total of Rs.19,42,620.00, the due amount is Rs.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
4,85,655/00 and four times the total amount comes Rs.
19,42,620.00 so why the appellant wants to recover four times
amount of due rent amount not stated and has not submitted any
written documents with this regard. The appellant has produced a
rent agreement with the eviction application, but there is no
specific condition mentioned for recovery of due rent amount. the
applicant relies upon section-269 of Gujarat panchayat act-1993.
{36} section-269......
(1)Whoever not being duly authorized in that behalf occupies is in
possession of any property vesting in, or under the control of, a
panchayat shall without prejudice to any other action which may
be taken under this act, he liable to pay in to the panchayat a sum
Up to four times the amount of rent which would have been
payable to the panchayat for the period of such occupation or
possession ,had the property been let by the panchayat.
(2) The sum so payable shall be determined by the panchayat in
the prescribed manner and thereafter the sum shall become due to
the panchayat and the provisions of chapter X shall mutatis
mutandis apply to the recovery thereof.
{37} So, the applicant demanded due rent of Rs. 4,85,655/- four
times of that amount in the eviction application but competent
authority has not passed any order of recovery of due rent. As per
the page no.2 of the eviction application rent amount due from
September-2017 to April-2022 and total amount is Rs.4,85,655/-. It
means that the opponent has not paid due rent to the applicant.
the opponent stated in pera18 of his written argument submitted
before competent authority, he had paid rent as per resolution
no.64. but has not produced receipt or Bank statement, how can I
believe that he has paid rent. He also stated that he is not liable to
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
pay rent with respect to the resolution no.147. In my view as the
applicant is an owner of the premises the applicant has the right to
decide how much rent to charge. How can an opponent say that he
will not accept and will not pay rent as per resolution no.147. If
the opponent feels that rent is very excessive, in that circumstance
he should vacate the premises Immediately but how can he say that
I am not bound to pay rent as per resolution no.147.
{38} So far the concern of the recovery of due rent, a competent
officer has not passed an order with respect to the due rent or
recovery of due rent. A competent officer totally silent about rent
demanded by the applicant in his original application, I have also
gone through the written argument filed by the applicant vide ex-
15 ,he has mentioned only that the opponent has not paid rent
from 2012 but applicant has not demanded due rent before this
court. disputed property is public premises within the meaning of
section 2(e) of the act. and opponent has to pay due rent, it is the
duty of the opponent to pay rent regularly to the applicant. but the
situation is the opponent is not paying rent and does not vacate the
premises, so the opponent is an unauthorized occupant of the
disputed premises.
{39} So far the due rent is concern the applicant has demanded
due rent from September-2017 to April-2022 , total 4,85,655/- with
four times as per section-269 of the act but considering the
Judgment of New Delhi Municipal corporation Vs.Kalu ram reported
in AIR 1976 Supreme court page- 1637, Hon'ble Supreme court held
that......
"section -7 only provides a special procedure for the realization of
rent in appears and does not constitute a source or foundation of
rent to claim a debt otherwise time-barred, the word "payable" in
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
section-7 in the context in which occurs, means " legally
recoverable"
{40} So, considering the provision of section-269 of the Gujarat
Panchayat act-1993, as well as section-7 of the public premises
(Eviction of Unauthorized Occupants) act-1971 and ratio lead down
by the Hon'ble Supreme court in above cited Judgment, the
applicant can not claim time barred rent, panchayat entitled for
only legally recoverable rent and same can recover from the
opponent.
{41} So, whatever reasons assigned by the competent officer for
allowing the eviction application no.22/2022 of the showroom/shop
no.01 admeasuring 251.00 (ground floor) with Marginal Space, total
470.00 square feet premises situated at ground floor, District
Panchayat Building, Lal Darwaja, Ahmedabad are not illegal,
perverse and arbitrary therefore my answer of issue no. 1 in the
negative and for the issue no. 2 i passed following final order
-:ORDER:-
1. The appeal of the opponent/appellant is hereby rejected
2. Order passed by the competent Authority and Deputy
Development officer (Revenue) Ahmedabad in eviction case
no.22/2022 on.19- 12-2022 is hereby confirmed.
3. The opponent is hereby directed to vacate the disputed premises
to the applicant within one month the date of this order.
4. The opponent is hereby directed to pay four times legally due
recoverable rent amount to the applicant within one month from
date of this order. If the opponent failed to pay, the applicant
would be entitled to recover through revenue procedure.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
Parties shall bear their own cost.
Decree be drawn accordingly.
The order is declared in the open court on this 23rd day of June,
2023 under my hand and seal.
Date :- 23-06-2023. [ Ambalal R. Patel ]
Place:- Ahmedabad. Additional Principal Judge
Court No.2, City Civil & Sessions Court,
Ahmedabad.
(Unique I.D. Code No.GJ00404)"
14. In the aforesaid sets of facts which are undisputed the
following emerge :-
(A) The property in question is of the ownership of the
State Government which belongs to the Panchayat. The parties
are governed by Section 157 of the Gujarat Panchayat Act. The
lease agreement entered into between the parties are governed
by the provisions of the Gujarat Panchayat Act. Section 157 of
the Gujarat Panchayat Act stipulates that no lease, sale or
other transfer of any immovable property vesting in, or
acquired by Panchayat can be valid unless such lease, sale or
other transfer has been made with previous sanctioned of the
competent authority, further in absence of such sanctioned the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
period of lease does not exist for more than 03 years. In the
facts of the present case, the lease was entered into between
the parties on 4.7.2007 which was specifically for a period of
35 months and 29 days in accordance the said lease
agreement. The lease stood expired thereafter. In view
thereof, in absence of any extension of said lease, the lease
having expired the writ-applicant lessee is unauthorised
occupant and accordingly to be evicted in accordance with the
mandate of the Public Premises Act under the provisions of
Sections 2(h) of the Public Premises Act. The Public Premises
Act is a complete Code in itself. In view thereof, Transfer of
Property Act and Rent Act would not be applicable and the
principles of holding out and protection of writ-applicant as
tenant would not apply to the facts of the present case.
(A1) The aforesaid has been dealt with by the Hon'ble Apex
Court in the case of Delhi Development Authority v. Anant Raj
Agencies Pvt. Ltd. Reported in AIR 2016 SC 1806, Para-23 and
25 read thus :-
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
"23. ....Therefore, the DDA vide notice dated 01.09.1972 decided
not to renew the lease of the property in question and terminated
the lease in respect of the same, though in law the same was not
even required on the part of the DDA in view of the conditions of
the lease deed as after the expiry of the original period of lease it
stands terminated by efflux of time.
25. Further, in the case of Ashoka Marketing Ltd. and Anr. v.
Punjab National Bank and Ors. MANU/SC/0198/1991 : (1990) 4
SCC 406, wherein the question for consideration was whether the
provisions of Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 overrides the provisions of Delhi Rent Control Act,
1958,the Constitution Bench of this Court after interpretation of the
relevant provisions of both the Acts has clearly held that the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 must
prevail over the Rent Control Act.....
......The Transfer of Property Act, 1882 is a general law governing
the landlord and the tenant relationship in general. The specific
Rent Control Acts are advancement over the Transfer of Property
Act, thereby providing more protection to the tenant from arbitrary
increase of rent and ejectment from the rented premises by the
landlord. Thus, in the light of the aforesaid case law, it can be
concluded that the Transfer of Property Act, 1882 is not applicable
in respect of the public premises."
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(A2) Considering the aforesaid, the said issue is no longer res
integra that no notice under Section 116 of the Act was
required to be issued as contended by the learned Senior
Counsel appearing for the writ-applicant lessee and that the
writ-applicant lessee would not be entitled to any protection
on the ground of general laws which otherwise governs civil
relationship between the parties.
(A3) Section 116 of the Transfer of Property Act will have no
application in the facts of the present case which are governed
by Public Premises Act and the same is uncontroverted.
(A4) For the aforesaid, it is apposite to refer to the ratio as
laid down in the case of B. Sharma Rao H. Ganeshmal and
ors. vs. Head Quarters Asst. and ors. reported in (1998) 9 SCC
577, Para-3 read thus :-
"3. ..... The case of the petitioners in the plaint is that they are
in occupation as tenants of the premises by virtue of Section 116
of the Transfer of Property Act and they could not be regarded as
unauthorised occupants. In other words in the suits the petitioners
have raised the question that they are not unauthorised occupants
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
and are not liable to eviction under the provisions of the State Act.
Having regard to the provisions contained in the State Act we are
of the view that the question whether the petitioners are
unauthorised occupants or not is required to be determined by the
Estate Officer under Section 5 of the Act and a person feeling
aggrieved by such determination can assail the same in appeal
before the appellate authority."
In the facts of the present case at the cost of repetition
the lease having expired in the year 2010, the writ-applicant
lessee is governed by the Public Premises Act and Section 116
of the Transfer of Property Act would not be applicable.
(A5) In the case of Sajidali Kausharali Shah v. Municipal
Commissioner, reported in 2023 2 GLR 893, It is apposite to
refer to Para-12 which reads thus :-
"12. This Court does not find any illegality or irregularity
committed by the respondent- Corporation in following the
provisions of the Public Premises Eviction Act before passing the
order. The petitioners were given ample opportunity of hearing.
The findings of the appellate forum do not in any manner suffer
from any vice of illegality or perversity. The petitioners have
miserably failed to show any violation of the provisions of the Act.
The provisions of Section 116 of the T.P. Act, on which reliance is
placed, will not apply in the case of the petitioners and hence, as
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
per their statement made before this Court in the earlier writ
petition, the case of the petitioners will fall under Section 4(1) of
the Public Premises Eviction Act......"
In the similar facts the Hon'ble Delhi High Court in the
case of Delhi State Industrial Development Corporation v. KC
Bothra, reported in 2004 72 DRJ 244, Para-29 read thus :-
"29. In the above view of the matter, the contention raised by
Mr. V.P. Chaudhary, learned Senior Advocate representing the
Entrepreneurs that the Entrepreneurs were entitled to a notice to
quit under Section 106 of the Transfer of Property Act for
determination of their lease or that the Entrepreneurs have become
tenants by holding over within the meaning of Section 116 of the
Transfer of Property Act after the lease having allegedly expired
due to efflux of time, holds no water. Taking a different view
would render the provisions of the Act nugatory and frustrate the
very object with which the Act was enacted by the Parliament."
(A6) The submissions of Mr. Mehul Shah, the learned Senior
Counsel appearing for the writ-applicant lessee stands answered
by the aforesaid positions of law wherein it was held that the
principles of "holding over" under Section 116 of the Transfer
of Property Act after the lease having expired due to efflux of
time would not be applicable considering the fact that the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
aforesaid would frustrate the very object of the Public Premises
Act, 1972.
(B) The contention of the writ-applicant lessee that in
absence of termination of lease, the lease would not stand
determined. The aforesaid was considered in the case of
Babubhai Gadarmal vs. Ahmedabad Municipal Corporation and
ors., reported in 1998 2 GLR 1341, wherein it was held that,
once the lease has come to an end by efflux of time, the
continuation of the lessee/writ-applicant in occupation of the
public premises thereafter is an unauthorized occupation and it
falls within the definition of Clause (h) of Section 2 of the Act,
1972. Para-13 of the said order reads thus :-
"13. The petitioners' possession after the expiry of the lease term is
an unauthorized occupation of the public premises. The petitioners
have no authority for such occupation as admittedly neither the
original owners or the respondent No. 1 has extended the period of
lease. The lease has come to an end by efflux of time and the
continuation of the petitioners in occupation of the public premises
thereafter is an unauthorized occupation as it falls within the said
definition as given in Clause (h) of Section 2 of the Act, 1972. If
we go by another aspect that the petitioners are continuing in
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
occupation even after the expiry of lease period and even if it is
taken to be an unauthorized occupation then too after notice given
by the Corporation of determining their authority to continue in the
possession, their occupation is only unauthorised....."
(B1) In the case of Gandhi Corporation V. Gujarat University
and ors., reported in MANU/G]/1227/2017, an identical issue
was for consideration of the Court wherein it was held that
once the lease had come to an end by efflux of time, the same
cannot be ignored, Paragraphs-5, 16 and 18 read thus :-
"5... it was submitted that as the petitioner has not handed over
the vacant possession on expiry of the lease, the proceedings have
been initiated under the Public Premises Act, 1972 as it is a public
premises ...
Moreover, it was also cited before the Court that as per the
provision of Section 108(q) of the Transfer of Property Act, the
petitioner is an unauthorized occupant, which provides, "on the
determination of the lease, the lessee is bound to put the lessor
into possession of the property".
16. .....Therefore, both clauses have to be read in a harmonious
way. In other words, if one of the parties is not inclined or willing,
it could be foisted upon or renewal cannot be claimed as matter of
right....
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
18. Another facet of submission with regard to the proceeding
under the Public Premises Act, 1972, is also well within the right
of the respondent when the petitioner - lessee has failed to
handover vacant and peaceful possession on expiry of the periodof
lease s1. Therefore, as discussed above, with reference to the
provision of the Transfer of Property Act, more particularly Section
108 of the Transfer of Property Act, when the petitioner has failed
to handover the possession, the respondent No. 1 would be justified
in resorting the proceeding under the Public Premises Act, 1972 for
eviction, which could be said to be in accordance with law or due
process. Therefore, no grievance could be made on that count by
the petitioner."
(B2) In the case of Cantonment Board vs. Church of North
India, reported in AIR 2011 SC 2339, the Hon'ble Apex Court
in para-17 held as under:
"17. ....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 defense. ... "
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(B3) In the case of Commissioner, Jalandhar Division and ors.
v. Mohan Krishnan Abrol and ors., reported in AIR 2004 SC
2060, Hon'ble Apex Court held that on expiry of the lease, the
writ-applicant lessee would be held to be in wrongful
possession and occupation of the property would be in the
nature of unauthorized occupation and therefore, it was open
for the competent authority in passing the impugned order
under the Public Premises Act, Para-13 read thus :-
"13. .....In the circumstances, we are of the view that on expiry
of the lease, respondent No. 1 was in wrongful and illegal use and
occupation of the property in the nature of unauthorized occupation
and therefore, the competent authority was right in passing the
impugned order of eviction under the 1973 Act."
(C) In the case of State of U.P. v. Rup Lal Sharma and ors.,
reported in 1997 2 SCC 62, the Hon'ble Apex Court
considered the definition of unauthorised occupation as defined
in Section 2(e) and held that, continuation in occupation of by
any person after the authority or the capacity in which he was
allowed to hold or occupy the premises expired or has been
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
determined for any reason, continuance in such occupation
after the determination of such authority would make the
occupation unauthorised for the purpose of the Public Premises
Act. Para-7 read thus :-
"7. Unauthorized occupation" is defined in Section 2(g). The
definition comprises within its contours occupation of the public
premises by any person without authority for such occupation, and
also the continuance in occupation of such premises by any person
after the authority under which or the capacity in which he was
allowed to hold or occupy the premises has expired or has been
determined for any reason However, thus continuance in
occupation after the determination of such authority would also
make the occupation unauthorised for the purpose of the said Act.
(D) In the case of Ashok Caterers v. Municipal Corporation
of Greater Bombay, reported in 1997 SCC 220, the Hon'ble
Apex Court held that expiry of authority to occupy occurs by
reason of the terms or conditions of occupation. Any order of
eviction on the ground of either "expiry" or "due
determination" has to be made in accordance with the
procedure prescribed by the statute. Paragraph-4 read thus :-
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
"4. .....The expiry of authority to occupy occurs by reason of
the terms or conditions of occupation. On the other hand, the
determination of authority to occupy to be due or valid must be
founded on one of the grounds specified by the statute. Any order
of eviction on the ground of either "expiry" or "due determination"
has to be made in accordance with the procedure prescribed by the
statute."
(E) In the case of Mukundsingh Yadav v. Logendrasingh Z.
Yadav, reported in 1994 1 GLR 708, it was held once the lease
period expires, ipso facto the occupant becomes unauthorized.
Paragraph-14 read thus :-
"14. Since the permission for continuance of the petitioner in
the" disputed premises, as a tenant, beyond the period of one year
was not granted, possession of the petitioner would be
unauthorised, as defined in Section 2(h) of the Gujarat Public
Premises Act. Learned Counsel Mr. Bhatt, for respondent No. 1 has
also placed reliance on a decision of the Apex Court of the land,
rendered in the case of Ashok Marketing Ltd. v. Punjab National
Bank reported in MANU/SC/0198/1991 : AIR 1991 SC 855. The
ratio propounded in the aforesaid decision is, squarely, applicable
and attracted to the facts of the present case. The contention of the
learned Counsel Mr. Bhatt for respondent No. 1 that possession of
the petitioner in respect of the disputed premises, after expiry of
the period of lease sanctioned by the competent authority, which
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
was one year, 'ipso facto', would be unauthorized is full of
substance."
15. In the facts of the present case and position of law as
referred above, the lease agreement having never renewed after
2010, the writ-applicant lessee under Section 2(f) of the
Gujarat Public Premises Act are said to be 'unauthorized
occupant' of the property in question.
(A) Reliance was placed by Mr. Mehul Shah, the learned
Senior Counsel appearing for the writ-applicant lessee on the
decision in the case of New India Assurance Co. Ltd. v. Nusli
Neville Wadia, reported in AIR 2008 SC 876, wherein in para-
35 it was held that summary procedure of evidence was
required to be followed by the Estate Officer, the same being
creature of statute.
In the opinion of this Court, the Hon'ble Apex Court
while considering the aforesaid decision was deciding the case
under the Central Premises Act, 1972 whereunder Rule-5
provides for recording of evidence of such summary of
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
evidence, whereas no such Rules provide under the Gujarat
Public Premises Act. Further in the facts of the present case,
the lease stood expired after 2010 for which no evidence is
required to be recorded and the facts being undisputed the
writ-applicant was held to be in unauthorized possession of the
subject premises and liable to be evicted.
(B) The Gujarat Panchayats Act is the special law governing
the leasehold relationship between the parties, wherein Section
157 clearly stipulates that in the absence of any sanction from
the state government, no lease agreement beyond the period of
03 years can be executed. The argument of continuing to
occupy the premises by the writ-applicant lessee herein beyond
03 years as tenant is contrary to the provisions of the Public
Premises Act. The only manner in which lease agreement or
leasehold relationship can be inferred between the parties is in
accordance with the provisions of the Panchayats Act and none
other. To the aforesaid conclusion, this Court deems it fit to
refer to the decision of the Hon'ble Apex Court in the case of
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
Gram Panchayat, Village Haripura vs. The Commissioner,
Ferozpur Division, reported in (2006) 8 SCC 286, Para-11 read
thus :-
"11. .....A particular method has been prescribed that how lease
to be executed as per Rule 6. Therefore, in this view of the matter,
we are of opinion that unless proper lease is granted in the manner
provided in Rule 6 of the Rules till that time simply because
someone has paid rent that would not entitle him to claim as a
tenant. In the absence of statutory provisions and rules thereunder,
it is difficult to accept that since the rent had been deposited with
the Gram Panchayat that would make them tenants. ...
The question is not the grant of lease on year-to-year basis. The
question is whether the Gram Panchayat has recognized the
contesting respondent as a tenant or not. Simply someone has paid
or deposited the rent with the Gram Panchayat voluntarily after
unauthorized occupying the Gram Panchayat land, he would not be
deemed to be a tenant. This would be mockery of law. A lawful
tenant is one who has been admitted as tenant after following due
procedure of law. It is not a one man show of the Sarpanch of the
Gram Panchayat that he can surreptitiously takes someone as a
tenant without following the procedure under therules,incasethe
Sarpanch or any Panch inducts someone as a tenant without
following the procedure prescribed under the Rules then such
induction of the person will not be authorised or lawful and the
Gram Panchayat will not be bound by that."
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
Considering the facts of the present case and the
position of law as referred above, simply because the writ-
applicant lessee paid or deposited the rent with the respondent
Gram Panchayat voluntarily after unauthorised occupation of
the subject premises the writ-applicant lessee would not be
deemed to be tenant. Admittedly no rent receipts are produced
by the writ-applicant lessee in the facts of the present case. In
view of the fact that, after 2010 the lease stood determined
and there is no other lease agreement entered into between the
parties. Though there were various communications between
the parties, having considered the record it appears that the
writ-applicant lessee never accepted the rise in the rent and
the draft lease which was submitted by the writ-applicant
lessee was never accepted by the respondent authority and in
view thereof, this Court is inclined to conclude that the
relationship of landlord and tenant between the parties does
not exist after 2010.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(C) The contention of the writ-applicant lessee that the
order impugned passed by the Estate Officer was based on a
draft order, does not appeal to this Court considering the fact
that even if considering it as a draft order though it was a
notice, on perusal of the said documents the Estate Officer has
recorded his own satisfaction that the writ-applicant lessee is
unauthorised occupant of the property in question which
includes recording of submissions, analysis and findings in
terms thereof.
(C1) For the aforesaid reason, this Court deems it fit to refer
the Special Civil Application No.14992 of 2018, in the case of
Mayur Jayantilal Parikh vs. State of Gujarat, Para-23 read
thus:-
"23. .....So, it appears that in substance, for not signing the
column No.5 of stenographer's register, the charge has been leveled
against the petitioner. It is also not the case that these judgments
lacked any material facts or findings. It does not appear on the
record that these cases have been compared or even randomly
examined."
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(C2) Considering the facts of the case and position of law as
referred above, it is not even the case of the writ-applicant
lessee that the order impugned passed by the Estate Officer is
lacking any material particulars and in view thereof the said
objection does not appeal to this Court.
(D) Answering Mr. Shah, the learned Senior Counsel's
contention that, the original plaintiff - respondent herein has
relied upon the Resolution No.174 dated 7.6.2012 on the basis
of which the writ-applicant lessee has committed default was
not produced before the trial Court and that if the said
resolution was not produced how the Estate Officer was able to
refer and rely upon the same and pass the order in favour of
the original plaintiff.
In the opinion of this Court,
(1) The said Resolution No.147 was produced by the District
Development Officer in the communication dated 27.8.2021
(page-123 of the paper-book).
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(2) The said communication alongwith Resolution No.147 was
produced by the writ-applicant lessee before the Estate Officer
under in the proceedings under Section 4 and also before the
Hon'ble Appellate Court.
(3) Upon considering the Resolution No.147 the learned
District Development Officer had rejected the offer dated
18.7.2019 of the writ-applicant lessee by the order dated
2.9.2021 (page-24 of the paper-book).
In view thereof, the Estate Officer had perused and
considered the contents of Resolution No.147 before passing
the impugned order.
In view thereof, the aforesaid contention raised by the
writ-applicant lessee does not appeal to this Court.
16. For the aforesaid reasons, this Court is not inclined to
interfere in the concurrent findings arrived at by the competent
authority.
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
(A) At this stage, it is apposite to refer to the decision in
the case of Puri Investments v. Young Friends and Co, reported
in 2022 SCC Online SC 283, para-17 read thus :-
"17. There was no perversity in the order of the Appellate
Tribunal on the basis of which the High Court could have
interfered. In our view, the High Court tested the legality of the
order of the Tribunal through the lens of an appellate body and
not as a supervisory Court in adjudicating the application under
Article 227 of the Constitution of India...."
(B) In the case of Keshav Shriyan v. IDBL and ors., reported
in 2018 SCC Online Bom 14289, wherein it was held that in
the proceedings arising out of the Public Premises Act where
the lessee was evicted, the Hon'ble Bombay High Court in
para-5 held as follows:
"5. The findings rendered by the Estate Officer as well as by the
Bombay City Civil Court are concurrent findings and being not
perverse, no interference is permissible under Article 227 of the
Constitution of India."
17. Considering the aforesaid position of law and the facts of
the present case, this Court is not inclined to interfere in the
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
concurrent findings arrived at by the competent authorities. In
the opinion of this Court, the competent authorities have
arrived at impugned reasonings after taking into consideration
the submissions advanced by the learned advocates appearing
for the respective parties, position of law and facts of the
dispute in question wherein the respondent authority requires
the premises as stated in para-2 of the legal notice duly
produced at page-70. In the opinion of this Court, the orders
impugned require no interference under Article 227 of the
Constitution of India. For the foregoing reasons, the orders
impugned passed by the respondent authorities are after
following due procedure under the Public Premises Act.
18. The direction (4) issued by the learned City Civil Court
in the order dated 23.6.2023 in the Regular Civil Appeal No.6
of 2022 wherein it is directed to the writ-applicant lessee to
pay the rent four times recoverable to the respondent within
one month from the date of the order, is directed not to be
acted upon considering the fact that Section 2(e) of the Act
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
stipulates the lessees to pay the rent due and payable. In view
thereof, the writ-applicant lessee having failed to pay rent the
aforesaid order came to be passed, however the respondent
authority having not challenged the said order passed by the
Estate Officer wherein the aforesaid prayer was not granted,
the Appellate Authority on its own passed the direction (4)
without framing any issue with respect to the same. In view
thereof, the same is required to be interfered with and the
order to the aforesaid extent is hereby quashed and set aside.
Ms. Shah, the learned Senior Counsel was not in position
to controvert the aforesaid which is undisputed.
19. For the foregoing reasons, the captioned writ-applications
stand dismissed.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
After pronouncement of the judgment Mr. Mehul S. Shah,
the learned Senior Counsel assisted by Mr. J. R. Shah, the
learned advocate appearing for the writ-applicants lessees
NEUTRAL CITATION
C/SCA/12012/2023 CAV JUDGMENT DATED: 19/10/2023
undefined
requested to stay this order for a period of two weeks. Ms.
Manisha Lavkumar, the learned Senior Counsel assisted by Mr.
Aaditya P. Dave, the learned advocate appearing for the
respondent strongly objected to such request. Looking to the
facts of the case and circumstances of the case, operation and
implementation of present order not to be implemented for a
period of one week from today.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
