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2017 DIGILAW 150 (GUJ)

Manubhai Bhagvanbhai Parmar v. State of Gujarat

2017-01-20

ALPESH Y.KOGJE, ANANT S.DAVE

body2017
JUDGMENT : Anant S. Dave, J. 1. This appeal under Clause 15 of the Letters Patent is preferred against oral order dated 24.10.2008 in writ petition being SCA No. 2179 of 2000 passed by learned Single Judge, whereby prayer of the petitioner challenging order dated 22.02.1996 passed by respondent No. 3-Collector, Bharuch as well as order dated 16.02.2000 passed by learned Extra Assistant Judge, Bharuch in Regular Civil Appeal No. 21 of 1996, by which the order of the Collector came to be upheld, was rejected. 1.1 The above proceedings were initiated by the competent authority in exercise of powers conferred under the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter to be referred as "the Act, 1972") 2. Certain facts to be referred for deciding this appeal are as under:- 2.1 The dispute is regarding one residential unit bearing Block No. 14/5 of Lahori go-down at Bharuch popularly known as 'Bhukamp Aavas' (hereinafter referred to as 'the Unit' for short). 2.2 The Unit was initially allotted to one Rishikesh Chandrashankar Rajguru, the respondent No. 2 herein. However, on account of certain complaints received against this respondent No. 2 regarding subletting and misbehavior, such allotment of the Unit to the respondent No. 2 was canceled. 2.3 The decision of cancellation of allotment was challenged by respondent No. 2 before Civil Court by filing Regular Civil Appeal No. 123 of 1980 under Section 7 of the Act, 1972 challenging order by RDC, Bharuch dated 07.01.1980. 2.4 After the cancellation of such allotment, the same Unit was reallotted to the petitioner, initially on 29.09.1978 and thereafter on 06.09.1980 upon payment of consideration, a sale deed came to be executed by the office of the Collector in favour of the petitioner. 2.5 On 27.04.1983, the Civil Court decided the Regular Civil Appeal No. 123 of 1980 in favour of the respondent No. 2 holding that cancellation of allotment to respondent No. 2 was illegal and also directed the Collector to restore the possession of the Unit with respondent No. 2. (108-139). 2.6 In the meanwhile, the petitioner filed Regular Civil Suit No. 383 of 1983 on strength of sale deed in his favour praying for injunction from vacating the premises. This Suit was dismissed by the Civil Judge (Senior Division), Bharuch by decision dated 14.09.1989. (108-139). 2.6 In the meanwhile, the petitioner filed Regular Civil Suit No. 383 of 1983 on strength of sale deed in his favour praying for injunction from vacating the premises. This Suit was dismissed by the Civil Judge (Senior Division), Bharuch by decision dated 14.09.1989. This decision was challenged by the petitioner by preferring Regular Civil Appeal No. 100 of 1989 which also came to be dismissed by judgment dated 13.11.1992. Against this, the petitioner preferred Second Appeal No. 212 of 1992 before this Court which came to be dismissed by an order dated 02.03.1993. 2.7 The petitioner had also filed Regular Civil Suit No. 255 of 1993 against State as well as respondent No. 2 seeking mandatory direction of the Court to allot alternative plot to the petitioner identical to the plot allotted to him under the sale deed. Along with this suit, application Exh. 5 was filed, where, initially status quo was granted on 27.05.1993 and ultimately by order dated 08.07.1994, Exh. 5 application came to be rejected, against which Misc. Civil Appeal No. 125 of 1994 was filed under O-43 R-1(r) of the Civil Procedure Code. 2.8 It appears that respondent No. 2 filed application before the RDC and competent authority, Bharuch purportedly to be an application under the provisions of the Act, 1972 praying inter alia for action on the part of the authority to comply with the order of the District Judge contained in order dated 07.01.1980 and hand over possession of the premises to respondent No. 2. This application was decided by order dated 22.02.1996 (Annexure-H). The appellant challenged this order by filing Regular Civil Appeal No. 21 of 1996 in the Court of District Judge, Bharuch and the District Judge, Bharuch was pleased to pass final order dated 16.02.2000 dismissing the appeal of the petitioner. This dismissal was challenged by way of filing SCA No. 2179 of 2000. 3. At the outset, when this appeal came to be admitted by Division Bench of this Court, an order was passed in this appeal as well as Civil Application, which is reproduced hereinbelow:- "ORDER IN LETTERS PATENT APPEAL NO. 1392 OF 2008: Mr. This dismissal was challenged by way of filing SCA No. 2179 of 2000. 3. At the outset, when this appeal came to be admitted by Division Bench of this Court, an order was passed in this appeal as well as Civil Application, which is reproduced hereinbelow:- "ORDER IN LETTERS PATENT APPEAL NO. 1392 OF 2008: Mr. G.M. Joshi, learned advocate for the appellant points out from the Collector's order dated 29th August 1978 (Annexure A to the petition) that the appellant was initially allotted Block No. 67/5 by order dated 18.5.1978 and thereafter, by the aforesaid order dated 29th August 1978, the appellant was allotted Block No. 14/5. It is submitted that the entire dispute has arisen because Block No. 14/5 had previously been allotted to respondent No. 2 Rushikesh Chandrashankar Rajguru and the Collector had cancelled the allotment in favour of respondent No. 2 on the ground of breach of the terms of allotment, viz., sub-letting in favour of a third party and nuisance being caused by that party. It is submitted that, ultimately, respondent No. 2 succeeded in Regular Civil Appeal No. 123 of 1980 decided in favour of that party vide judgment dated 27th April 1983, but the present appellant was not made a party to the said proceedings. Still, subsequently, all the authorities have relied only on the judgment dated 27th April 1983 for the purpose of giving findings against the appellant. Mr. Joshi further relies on the decision of the Apex Court in Express Newspapers Pvt. Ltd. v. Union of India, 1986(1) SCC 133 (Paragraphs No. 85 and 86) in support of the contention that, once the block in question was allotted to the appellant, the respondent authorities cannot be permitted to evict the appellant under the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, under which the competent authority has purported to act even without issuing notice under Section 4(1) of the said Act. Since the above contentions require detailed examination, the Appeal is admitted. ORDER IN CIVIL APPLICATION NO. 13828 OF 2008: Rule returnable on 24th February 2009. Ms. Sandhya Natani, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondents No. 1 and 3 and Mr. D.N. Pandya, learned advocate waives service of notice of Rule on behalf of respondent No. 2. ORDER IN CIVIL APPLICATION NO. 13828 OF 2008: Rule returnable on 24th February 2009. Ms. Sandhya Natani, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondents No. 1 and 3 and Mr. D.N. Pandya, learned advocate waives service of notice of Rule on behalf of respondent No. 2. On the returnable date, the learned Assistant Government Pleader shall also indicate whether any other vacant block in Lahori Godown is available or not. Till further orders, there shall be ad-interim stay against eviction of the appellant from Block No. 14/5 in Lahori Godown." 4. Mr. Gautam Joshi, learned Counsel appearing for the appellant adheres to his contentions so recorded in the order impugned in this appeal that it is by virtue of registered sale deed qua the subject property executed by the Government that the present premises occupied by him seized to be public premises and alternatively, even if it is treated as public premises, no procedure of mandatory in nature is followed under Section 4 of the Act, 1972 or Rule 4 of the Rules, 1974 in exercise of powers conferred under Section 18 of the Act, 1972. the above Rule 4 mandates that the competent officer shall, in addition to the manner specified in sub-section (3) of section 4, cause a proclamation of the notice to be affixed in the colony office or in the office of the Mamlatdar within whose jurisdiction the concerned premises are situated or in the local office where the concerned person is working. Section 4(3) of the Act, 1972 mandates that 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. 4.1 Taking us to various grounds raised in this appeal, it is submitted that no authority or competent Court of law ever declared the sale deed executed by the appellant with the Government as illegal, null or void or even ineffective for all purposes. 4.1 Taking us to various grounds raised in this appeal, it is submitted that no authority or competent Court of law ever declared the sale deed executed by the appellant with the Government as illegal, null or void or even ineffective for all purposes. By taking us to definitions contained in Section 2 of the Act, 1972, such as 2(d), which defines "premises", 2(f), which defines "public premises" and 2(h), which defines "unauthorised occupation", it is contended that even if orders passed by various Courts, either in the litigation undertaken by the appellant, which attained finality up to Second Appeal before this Court or challenged made by private respondent to the order of the competent authority by filing appeal under the Act, 1972, it cannot be said that legal right available to the appellant to contest notice of eviction is lost. 20.01.2017 4.2 It is therefore submitted that under Section 4(3) of the Act, 1972 and Rule 4 of the Rules, 1974, no procedure is followed by the competent authority and therefore, on the strength of order passed by learned Extra Assistant Judge directing the competent authority to put back private respondent in possession and evicting the appellant herein is illegal. It is also submitted that in the proceedings undertaken by private respondent herein against cancellation of allotment of the premises by the Collector before the State Government and thereafter request of private respondent to put back him in possession, came to be turned down by the Collector, against which an appeal was preferred under Section 7 of the Act, 1972 by him. Admittedly, the appellant was not a party and therefore, it was incumbent upon the authority to follow the procedure of mandatory in nature, so envisaged under the Act, 1972 and the Rules, 1974. 4.3 However Mr. Gautam Joshi, learned Counsel for the petitioner was unable to dispute the fact that litigation of civil in nature undertaken by him culminated in Second Appeal before this High Court, which came to be dismissed. But, according to him, no authority or Court ever declared the sale deed executed by the authority with him, either illegal, null and void and therefore, it cannot be said that the appellant has occupied public premises unauthorizedly. But, according to him, no authority or Court ever declared the sale deed executed by the authority with him, either illegal, null and void and therefore, it cannot be said that the appellant has occupied public premises unauthorizedly. According to learned Counsel for the appellant, in both these eventualities, appeal filed by the appellant deserves to be allowed and he has remained in possession of the premises of the subject appeal throughout this period, i.e. atleast for 36 years and the same is not to be disturbed at behest of the private respondent. 5. As against above, Mr. Dabhi, learned AGP would contend that order passed by learned Single Judge is based on correct findings and proper interpretation of orders passed by the Courts below and execution of sale deed was done by a officer who was not authorized to do so and therefore, the appellant has lost in two different litigations, one undertaken by him up to this High Court in Second Appeal filed by him and another undertaken by private respondent in which he succeeded in appeal under Section 7 of the Act, 1972 and pursuant to which directions issued in the order by learned Extra Assistant Judge came to be complied with and thereafter also, suit was filed by the appellant in which no relief so claimed by him was granted and therefore, principle of res judicata would apply and the appeal deserves to be rejected. 6. Mr. Pandya, learned Counsel for private respondent relied on affidavit in reply filed on behalf of respondent No. 2 and order passed by learned Single Judge and other orders of Courts below, in which it was held that premises occupied by the appellant was not a private premises and it was clear that possession of the suit premises from private respondent was taken illegally and appellant could not have claimed ownership of the premises by virtue of sale deed dated 16.06.1980 and further, Mamlatdar and Deputy Mamlatdar, Bharuch had no authority to execute the sale deed when the proceedings were pending and principle of lis pendens would apply in the facts of this case. Reliance is placed on the decision in the case of Mahendrabhai Chanabhai Kandoliya v. Vakatar Bhagvanbhai Devabhai & Ors., reported in 2011 (3) GLH 120 , where Sarpanch of the village was removed from the office and challenge before learned Single Judge against removal failed. Reliance is placed on the decision in the case of Mahendrabhai Chanabhai Kandoliya v. Vakatar Bhagvanbhai Devabhai & Ors., reported in 2011 (3) GLH 120 , where Sarpanch of the village was removed from the office and challenge before learned Single Judge against removal failed. However, in LPA, the High Court quashed and set aside removal of Sarpanch and directed him to assume office. In the facts of that case, according to Mr. Pandya, during pendency of LPA, fresh election was held and new Sarpanch was elected and upon filing review application by new Sarpanch to recall the order of LPA, it was held that order passed in LPA of setting aside removal of the Sarpanch ought to have been given due effect and upon quashing and setting aside order of removal, Sarpanch should have been allowed to resume duty. Likewise, in the present case, when sale deed was executed during appeal preferred by private respondent, who was ordered to put back in his possession of the premises, effect of the sale deed is of nullity and right accrues in favour of the appellant. 7. Having regard to the facts and circumstances of the case and submissions canvassed by the learned counsels for the parties, the fact remains that the appellant/petitioner purchased the premises in question by virtue of registered sale deed executed by and on behalf of the State Government, which was never set aside by any authority at any point of time, but only in the earlier proceedings it was held to be ineffective. Further, no procedure of mandatory in nature envisaged under Section 4 of the Act, 1972 or Rule 4 of the Rules, 1974 framed in exercise of powers conferred under Section 18 of the Act, 1972 was followed against the appellant/petitioner. That Rule 4 of the Rules, 1974 mandates the competent officer to follow certain procedure in addition to the manner specified in subsection (3) of Section 4 for a promulgation of notice to be affixed in the colony office or in the office of the Mamlatdar within whose jurisdiction the concerned premises is situated or at least in the local office where the concerned person is working. Besides, even Section 4(3) of the Act, 1972 also mandates the procedure to be followed by the competent officer to serve notice to a person occupying public premise unauthorizedly or alternatively to affix such notice at the outer door or some other conspicuous part of the public premise in the manner prescribed. Thus, collectively, it transpires that neither respondent No. 2 nor the competent authority placed any material on record of the writ petition or in this appeal evidencing such procedure followed by them. The above procedure is to be considered in light of Section 2(d), 2(f) and 2(d) of the Act, 1972 which contain the definitions of "premises", "public premises" and "unauthorized occupant", respectively. Whatever procedure followed by the authority at the behest of respondent No. 2 cannot be said to be a procedure envisaged under the Act, 1972 and Rules, 1974 governing the subject premise. 8. The litigation undertaken by the appellant/petitioner of civil nature culminated into Second Appeal before this Court shall have no bearing as such so far as mandatory requirement of law to be followed by the authorities under Act, 1972 and Rules, 1974 are concerned. 9. We find no force in submissions made by either learned AGP or learned counsel for the respondent No. 3 about applicability of principles of lis pendens and the decision in the case of Mahendrabhai Chanabhai Kandoliya [supra]. 10. Under the circumstances, the judgment and order dated 24.10.2008 passed by the learned Single Judge in Special Civil Application No. 2179 of 2000 and order dated 22.02.1996 passed by the respondent No. 3 - Collector, Bharuch as well as order dated 16.02.2000 passed by the learned Extra Assistant Judge, Bharuch in Regular Civil Appeal No. 21 of 1996 are hereby quashed and set aside to the aforesaid extent and with a liberty to the competent authority, if permissible under law, to follow the procedure envisaged under the Act, 1972 and Rules, 1974 and also to explore the possibility to comply with order dated 19.01.2009 passed in civil Application No. 13828 of 2008 while admitting this appeal to make sincere efforts whether any other vacant block in Lahori Godown is available. 11. This appeal is allowed to the aforesaid extent only. Appeal Partly Allowed.