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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Anant S. Dave, Alpesh Y. Kogje, JJ.
Manubhai Bhagvanbhai Parmar - Appellant
Vs.
State of Gujarat and Ors. - Respondents
Letters Patent Appeal No. 1392 of 2008 in Special Civil Application No. 2179 of 2000
Decided On : 20-01-2017
Letters Patent Appeal – Clause 15 – Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972 – Sections 4 and 7 – Rules, 1974 – Rule 4 – Challenging order passed by respondent No. 3-Collector as well as order passed by Extra Assistant Judge, Bharuch in Regular Civil Appeal by which the order of Collector came to be upheld, was rejected – 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 – Appellant points out from the Collectors order 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 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 – Ultimately, respondent No. 2 succeeded in Regular Civil Appeal decided in favour of that party vide judgment, 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 appellant – Held, State Government, which was never set aside by any authority at any point of time, but only in earlier proceedings it was held to be ineffective – 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 – 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 – Directions issued – Appeal Partly Allowed. (Paras 7 to 11)
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. 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
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