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Arjunsinh Rameshbhai Solanki v/s The Sardar Sarovar Narmada Nigam Ltd.

    R. Special Civil Application No. 16905 of 2019

    Decided On, 01 October 2019

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE BHARGAV D. KARIA

    For the Appearing Parties: B.M. Mangukiya (437), Bela A. Prajapati (1946), Advocates.



Judgment Text

Oral Order:

1. This petition is filed under Articles 226 of the Constitution of India and under the provisions of Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (Act No.12 of 1973).

2. The petitioners have prayed for the following relief(s):-

"28. A Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and hold and declare that the respondents have no authority or competence to remove the petitioners from the premises given to the petitioners by mere issuance of the notice as there is no such powers vested in the officers of the respondents for eviction as contemplated under the provisions of the Act.

B. Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and quash and set aside the impugned notice dated September 04, 2019 and September 24, 2019.

C. Pending admission and final disposal of the present petition, be pleased to stay the implementation, execution and operation of the impugned notices dated September 04, 2019 and September 24, 2019 and restrain the respondents from evicting the petitioners from the premises of the petitioners which is subject matter of this writ petition."

3. The brief facts of the case are that the petitioners, who are stated to be earning livelihood by running a small hotel like Dhabha, was situated on the plot of land having dimension of 20x25 feet alloted by the respondent-Corporation vide order dated 04.07.1979 in the name of the deceased-father of the petitioners.

3.1 It is the case of the petitioners that the father of the petitioners made an application for grant of the additional land ad-measuring 20x10 feet for the purpose of residence, which was also granted by the respondent and for both plots, necessary agreement was executed in favour of father of the petitioners in form of lease agreements which are stated to be not traceable.

3.2 It is the case of the petitioners that by communication dated 11.05.1993, which is produced at Annexure-E to this petition, whereby the petitioners were informed that the regular rent is recovered from the petitioners.

3.3 It is also the case of the petitioners that the electric connection has been obtained for the hotel of the petitioners and regular bills of the consumption of the electricity has been paid. The cess and tax have also been paid regularly to the Panchayat. The food license has also been obtained from the Food and Drug Control Administration, Gujarat State, however, such documents are not produced on record.

3.4 The father of the petitioners died on 01.12.2010, and therefore, an application was made on 28.01.2011 (Annexure-F, Page No.21) by the petitioner requesting to transfer the said piece of land in the names of the petitioners and accordingly, by communication dated 01.04.2011, the petitioners were informed that the aforesaid plots were transferred in the names of the petitioners. The lease agreement was executed with the petitioners on 01.04.2011. According to the said lease agreement, various terms and conditions are prescribed and lease was for the period of one year which was to be renewed.

3.5 The petitioners, thereafter, continued in possession of the premises in question and as per the petitioners due to the threat given by the respondents, the petitioners filed Regular Civil Suit No.41 of 2019 in the Court of Principal Civil Judge, Garudeshwar on the ground that the petitioners have already paid the rent in advance till March-2020 and accordingly, the suit for permanent injunction was filed for restraining the respondents from causing any hindrance in possession of the petitioners on the aforesaid plots.

3.6 The suit was filed on 04.09.2019 and the Principal Civil Judge, Garudeshwar issued summons by order dated 05.09.2019 making it returnable on 07.09.2019. On 12.09.2019, withdrawal purshis was given by the petitioners for withdrawal of the suit stating that there is a settlement outside the Court with the respondents. The said application was produced at Exh.6 and accordingly, on 12.09.2019, order below Exh.1 in Regular Civil Suit No.41 of 2019 was passed by the Court of Principal Civil Judge, Garudeshwar permitting the petitioners to withdraw the suit in view of the settlement arrived at outside the Court between the parties (Page Nos.34 & 35).

3.7 It is the case of the petitioners that notice dated 04.09.2019 was issued by the respondent- Corporation as a final notice for breach of the various conditions of the lease agreement which was executed between the parties. According to the said notice, the petitioners have committed breach of Conditions No.11 to 13, as no lease agreement was renewed after 2013. It was also pointed out that there is a breach of Condition No.19, as the petitioners have made unauthorized construction on the land adjusted to the land given for the residential purpose. It is pointed out that in the said notice that there is a breach of condition no.12 of the lease agreement, as the petitioners have made construction over the land which is not alloted to them for which notice was also issued on 02.08.2016. The petitioners, therefore, were put to the notice to vacate the plots alloted to them within 30 days, as there is a requirement for the Corporation for parking in view of the increase of tourists at Statue of Unity situated near the said plots. It is stated that if the petitioners do not vacate the plots, then the action will be taken in accordance with law.

3.8 It appears that the petitioners, thereafter, made an application which is at Page No.38 to the petition without any date, but it appears that it has been received by respondent no.2-Deputy Collector and Administrator on 24.09.2019, whereby the petitioners prayed to allow them to occupy the plots till the alternative arrangements are made. By letter dated 24.09.2019, the petitioners were informed that on completion of the notice period, necessary legal action shall be taken to vacate the plots by the respondent-Corporation.

3.9 The petitioner has, therefore, approached this Court by invoking provisions of Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (Act No.12 of 1973) (herein after referred to as the "Act").

4. Heard Mr.B.M.Mangukiya, learned advocate for the petitioners.

5. Learned advocate for the petitioners submitted that the respondent-Corporation has not followed the procedure prescribed under the provisions of the Act. He referred to the provision of Section 2(f) of the Act which defines "public premises" which 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, and thereafter, he referred to clause (iii) to point out that the respondent-Corporation is covered by the such defination of "public premises".

6. Reference was, thereafter, made to the provisions of Section 3 of the Act which defines appointment of competent officer and according to him, the notice dated 04.09.2019 was not issued by the competent officer. He thereafter, referred to provision of Section 4 of the Act which prescribes procedure for issuance of notice to show cause against the order of eviction. Referring to such provisions, it was submitted that the notice dated 04.09.2019 issued by the Corporation does not fall in any of the clauses of Section 4(a) of the Act, as the petitioner paid rent lawfully in respect of premises for the period for more than two months, nor the petitioners have sub-let, without the permission of the respondent, or nor 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 otherwise the petitioner never acted in contravention of any of the terms, express or implied, under which the petitioners are authorized to occupy such premises. It was submitted that the petitioner are not unauthorized occupants of any public premise, or that any public premises cannot be said to be recovered for any other purpose of the State Government, or, as the case may be.

Referring to sub-section (5) of the Act, it was submitted that no eviction order can be passed by the respondent-Corporation in violation of provisions of sub-section (5) of the Act.

7. Learned advocate for the petitioners submitted that the notice issued by the respondent-Corporation on 04.09.2019 is without any authority, as respondent no.2 is not competent authority to issue final notice under the provisions of the Act.

8. Having considered the aforesaid submissions made on behalf of the petitioners, following facts which emerge from the record are required to be noted.

a. That the petitioners are in possession of the premises in question pursuant to the lease deed executed in the year 2011.

b. Notice dated 04.09.2019 was issued by the respondent-Corporation for breach of the conditions of the lease-deed which was executed between the parties.

c. It is pertinent to note that on the same date i.e. 04.09.2019, the petitioners preferred Regular Civil Suit No.41 of 2019 and the same was withdrawn on 12.09.2019 on the ground that there is settlement outside the Court between the parties, meaning thereby, that the petitioners were aware about issuance of such notice dated 04.09.2019 by the respondent-Corporation when the suit was filed, and thereafter, there is nothing on record to point out that the on which terms the settlement is arrived at between the petitioners and the respondents so as to withdraw the suit. It also appears from the application dated 24.09.2019 of the petitioners addressed to the respondent-Corporation for granting more time to vacate the plots till the alternative arrangements are made by the petitioners. However, the said application is not considered and rejected by the letter dated 24.09.2019 by the respondent- Corporation, as the petitioners were already given final notice on 04.09.2019 and are granted 30 days time to vacate the plots.

9. In view of the aforesaid facts, it appears that the final notice dated 04.09.2019 is issued by the respondent-Corporation pursuant to the clause no.15 of the lease-deed which prescribes that whenever there is requirement by the respondent-Corporation by giving one month's notice, the plots can be vacated by terminating the lease.

10. It is also pertinent to note that the petitioners already filed Regular Civil Suit No.41 of 2019 which is withdrawn on the ground of settlement arrived at outside the Court between the parties. Therefore, now, the petitioners cannot raise the dispute with regard to invoking the provisions of the Act so as to continue in the premises which were alloted to the petitioners pursuant to the lease agreement between the parties in view of contractual agreement between parties. For the purpose of deciding the dispute wi

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th alleged notice issued by the respondent-Corporation for the breach of such conditions mentioned in the said notice, as stated herein above cannot be said to be a show cause notice under the provisions of Section 4 of the Act. 11. In view of the foregoing reasons, the petition is not maintainable under the provisions of the Act, as the petitioners already filed Regular Civil Suit for the protection of their possession which was withdrawn pursuant to the settlement arrived at outside the Court between the parties, at the most the petitioner can agitate the breach of the settlement before the Civil Court. The petition is, therefore, liable to the dismissed as jurisdiction under Article 226 of the Constitution of India can not be exercised for alleged breach of provisions of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972. 12. However, the petitioners are at liberty to approach the respondent-Corporation for extension of time to vacate the plots till alternative arrangement is made by them. The respondent-Corporation may consider such request on humane ground. 13. The petition is, therefore, devoid of any merit and accordingly, summarily rejected with no order as to costs.
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