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Gujarat High Court
Judgename :N.N.MATHUR
COMPETENT AUTHORITY,gujarat HOUSING BOARD - Appellant
Versus
DHAMJI vijendra MEHTA - Respondent
S.C.A. 5144 of 1994
Decided On : 11/08/1995
The competent officer can seek eviction of public premises -covered under the Gujarat Act of 1972 in three sets of circumstances.
@INN22-R = @INN22-R = @INN22-R = [Para 9] (b) Interpretation of Statutes-Preamble and Gujarat -Public Premises (Eviction of Unauthorized Occupants) Act, 1972-Sec. -4-Preamble does not over-ride express provisions of statute-Notice -to authorized person provided-Held, notice under sec. 4 is not -required to precede by notice that person is in unauthorized occupation. It is established law that preamble discloses the primary -intention of the statute but does not over-ride the express provisions -of the statute. As already stated, clause (a) of sub-section (i) of -section 4 by express provisions provides for issue of notice to persons -authorised to occupy. Thus in my opinion, notice under section 4 of -the Gujarat Act of 1972, is not required to precede by notice that -the person is in unauthorised occupation of public premises. [Para 11] (c) Gujarat Public Premises (Eviction of Unauthorized -Occupants) Act, 1972-Secs. 4 & 7-Sec. 4 provides for procedure -for eviction, Section 7 provides for payment of arrears of rent-Both -play in different fields. While section 4 provides procedure for eviction, section -7 provides procedure for payment of arrears of rent or damages in -respect of the public premises. Both play in different fields. [Para 13] (d) Civil Procedure Code, 1908-Affidavits not on -oath-Not stating which paras on basis of personal knowledge and -which on basis of information & belief-Held, they are not affidavits -in eye of law. The affidavits are not on oath and further the affirmation -is not in accordance with law, as it has not been stated that which -of the paras or part of the para are true to the personal knowledge -of the deponent and which paras are true on the basis of information -and belief. Thus, they are not affidavits in the eye of law. [Para 15] (e) Gujarat Public Premises (Eviction of Unauthorized -Occupants) Act, 1972-Eviction-Occupants failed to defend themselves -inspite opportunities-Interested in prolongition and not cooperation-Held, -it can not be said that they were denied opportunities. (f) Gujarat Publi Premises (Eviction of Unauthorized -Occupants) Act, 1972-Competent authority-Appointment of-Held, -no foundation is laid down for this contention. @GUJ = (G) CknH@kPk Hkcv@ HCkk (ù ùTklSkApPk XkkvCk^kKkv Bkk\km A@k^k^kk -WkkWkPk) ù ùlSklTkZkYk 1972 No foundation has been laid to show as to what is the -basis to say that the competent authority has not been appointed as -the competent authority. [Para 16] (g) Gujarat Public Premises (Eviction of Unauthorized -Occupants) Act, 1972 and Gujarat Housing Board Act, 1961-Public -premises- Held, Premises belonging to Housing Board are public -premises. The premises belonging to the Board are "public premises" -within the meaning of the Act of 1972 and the Board can take action -against an unauthorised occupant under the Act. [Para 16] (h) Gujarat Public Premises (Eviction of Unauthorized -Occupants) Act, 1972-Default-Relevant material and evidence -placed before competent authority-Held, occupants are in default -of arrears of rent. The entire relevant material was placed before the competent -authority and there is overwhelming evidence to show that the occupant-respondents -are in default of arrears of rent. [Para 16] (i) Gujarat Public Premises (Eviction of Unauthorized -Occupants) Act, 1972-Section 4-Civil suit pending-Held, -Housing Board is not debarred from proceeding under Gujarat Act, 1972. (j) Gujarat Public Premises (Eviction of Unauthorized -Occupants) Act, 1972-Sec. 4-Jurisdiction-Competent Officer -is appointed by State Government-Held, he cannot be said to have -personal interest, and (ii) Remedy of appeal is provided under Gujarat -Act, 1972. @GUJ = (L) CknH@kPk Hkcv@ HCkk (ù ùTklSkApPk XkkvCk^kKkv Bkk\km A@k^k^kk -WkkWkPk) ù ùlSklTkZkYk, 1972 The compentent officer is appointed by the notification -of the State Goverment, and he cannot be said to have personal interest -and further a remedy of appeal before the District Judge is provided -under the scheme of tha Act of 1972. [para 18] (k) Gujarat Public Premises (Eviction of Unauthorized -Occupants) Act, 1972-Sec. 4-Default-Material placed on -record-Held, no personal knowledge is required. No personal knowledge is required in the matter. Entire -material was placed before the competent authority. On the basis of -the material produced, the competent officer arrived at the conclusion -that the occupant-respondents in each petition were defaulters in -payment of rent. [Para 18]
( 1 ) IN this group of petitions, the petitioner-Competent authority, Gujarat Housing Board has approached this Court in second round.
( 2 ) THE Gujarat Housing Board had built tenaments in 326 Middle Income Group (M. I. G.) at Bhavnagar. The present respondents were allotted premises on hire purchase basis. In the year 1984, many of the allottees having not paid rent equivalent to amount of instalments due and payable under the agreement entered into between the Housing Board and the allottees, the Competent Officer appointed under the gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as the Gujarat Act of 1972) issued notice to the allottees calling upon them to show cause as to why an order of eviction should not be made. The competent Officer, after following the procedure laid down under the Gujarat Act of 1972, passed the order of eviction on 25-11-1986. The allottees against whom the order of eviction was passed, preferred appeals to the Court of District Judge, bhavnagar. The learned District Judge allowed the appeals and quashed the order of eviction on the ground that the allottees were not governed by the provisions of the Gujarat Act of 1972, and therefore, proceedings initiated by the Competent officer were without jurisdiction. The Gujarat Housing Board approached this court by way of filing Special Civil Application. This Court, by judgment dated 15-4-1991 held that the Housing Board is a Corporation established under the Act of 1961 and is controlled by the State Government, and therefore, the premises belonging to or taken on lease by or on behalf of the Housing Board is a public premises within the meaning of Sec. 2 (f) of the Gujarat Act of 1972. In view of this finding, this Court allowed the group of petitions and set aside the order passed by the District Judge and remitted the matter to the Competent Officer with a direction to pass orders afresh after affording reasonable opportunity of being heard to the respondents in accordance with law and in light of the observations made in the judgment. It appears that the Housing Board issued fresh notice to the individual defaulter-allottees with a view to update the arrears due. It would be convenient to refer one of the notices as filed in Special Civil Application No. 5144 of 1994. The notice has been given to one of the allottees, namely, Dhamji vijendra Mehta. English translation of the notice reads as under : xxx xxx xxx xxx xxx"the undersigned has reason to believe that : you have not paid the arrears of rent for more than two months of Rs. 0. 498/ - found due upto 8/91 for the premises shown in the accompanying schedule. You are required to produce the receipt/bank slip showing payment if made by you thereafter. Therefore, in view of the power vested in me under sub-sec. (1) of Sec. 5 of the gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, I intend to get the aforesaid premises evicted from its occupants within thirty days of the order of eviction (hereinafter will be called the order) for the reasons stated hereinabove. Now, therefore, you are hereby called upon to state within ten days of the receipt of this show-cause notice as to why order under sub-sec. (1) of Sec. 4 of the said Act should not be passed. If you want personal hearing or through advocate or Attorney, you are required to remain present at 12-00 on 10-12-1991, in the office of the Estate Officer, Gujarat Housing Board, Shastrinagar, Bhavnagar and produce the suitable evidence. "xxx xxx xxx xxx xxx
( 3 ) BEFORE the Competent Officer, on the first date of hearing, i. e. , on 10-12-1991, Mr. S. J. Sheth, learned Advocate appeared for the allottees and sought time for filing written statement. Thereafter also various adjournments were granted as is evident from the order of the Competent Officer, i. e. , on 9-1-1992, 10-2-1992, 12-3-1992, 26-3-1992, 11-5-1992, 9-6-1992, 8-7-1992, 5-8-1992, 8- 8-1992, 9-11-1
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