(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 10115 OF 2010 Guruprasad s/o. Shivprasad Khatri, Died through his legal heirs : 1/1. Sulochanabai w/o. Guruprasad Khatri, Age : 71 years, Occupation : Household. 1/2. Jagdishprasad w/o. Guruprasad Khatri, Age : 50 years, Occupation : Business. 1/3. Rajesh s/o. Guruprasad Khatri, Age : 48 years, Occupation : Business. .. Petitioners (Original All resident of Komti Galli, Parbhani. appellants) versus 1. Divisional Controller, Maharashtra State Road Transport Corporation, Parbhani Division, Parbhani. 2. The Resident Dy. Collector, Parbhani. .. Respondents. ....................... (2) Mr. S.S. Rathi, Advocate, for respondent no.1. Mr. K.J. Ghute Patil, Assistant Government Pleader, for respondent no.2. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 5TH JANUARY 2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. The learned Counsel appearing for the petitioners seeks leave to join the Resident Deputy Collector, Parbhani, as party respondent. Mr. A.D. Wange, learned Counsel appearing for respondent no.1, opposes the leave. However, in the interest of justice, leave granted. Necessary amendment be carried out forthwith. The learned Assistant Government Pleader accepts notice, upon rule, on behalf of the added respondent. 3. The petitioner claims to be licensee in occupation of premises belonging to respondent no.1 and has challenged judgment dated 16th August 2010, delivered by District Judge-2, Parbhani, in Regular Civil Appeal No. 150/2004, dismissing his (3) appeal challenging the order dated 19-11-2004 passed by the competent authority, in proceedings under the Bombay Government Premises (Eviction) Act, 1955, in Case No. APL/BGPE/33/91. 4. Mr. S.S. Rathi, learned Counsel appearing for the petitioner, has raised two contentions. The first one is that the notice, on the strength of which proceedings were initiated, did not seek petitioner's eviction but only pointed out that he was in arrears and prayed for recovery of those arrears, as arrears of land revenue. He has further urged that the authorities have charged the rate as per circular, while calculating arrears, thereby increasing license fee payable at the rate of 10 % per year. According to the learned Counsel for the petitioner, as there is no agreement between the parties in this respect, the circular relied upon by the respondents, cannot be the basis to effect such change in occupation charges. 5. According to Mr. A.D. Wange, learned Counsel appearing for respondent no.1, the petitioner has agreed to pay the rate of Rs. 1135/- per month, which is the rate above the highest bid then received by the respondent. According to the learned Counsel for respondent no.1, the arrears have been computed accordingly. The proceedings filed were for eviction (4) and the petitioner was all the while aware that the prayer for eviction is being considered by the competent authority. Hence, there is no prejudice to the petitioners. 6. After hearing the learned Counsel for the parties, I find that though the petitioner agreed to pay Rs. 1135/- i.e. above the rate then submitted by the highest bidder, that offer was not accepted and there is no agreement between the parties in this respect. The respondent no.1 is not in a position to show that because of that offer, the petitioner was allotted premises accordingly. In the absence of such material, at this stage, it cannot be presumed that the petitioners are legally under obligation to pay the rent / license fee at the rate of Rs. 1135/- per month. However, this issue is not concluded finally at this stage. 7. Perusal of the show cause notice dated 4-12-1991 reveals that it was issued under Section 5 of the Bombay Government Premises Eviction Act, 1955, calling upon the petitioner to pay the sum in arrears within ten days from its service and, in default, he was threatened that recovery of the said sum would be effected as an arrears of land revenue. Whether on the basis of such notice, proceedings for eviction, as instituted, can be sustained, or not, is a question which has not (5) been looked into by the authorities. 8. In the light of the above, I find it appropriate to direct the competent authority, namely, Residential Deputy Collector, Parbhani, to re-decide the controversy as early as possible. 9. The petitioners claim that they have already deposited an amount of Rs. 7,00,000/- and in pursuance to the orders passed by this Court, dated 26th October 2010, the petitioners have have deposited an amount of Rs. 1,00,000/- with the Registry of this Court. The amount outstanding is disputed by Mr. A.D. Wange, learned Counsel appearing for respondent no.1, who claims that huge amount running into approximately Rs. 6,00,000/- is still due from the petitioners. 10. In these circumstances, interest of justice can be met by directing the petitioners to deposit a further amount of Rs. 1,00,000/- with the Registry of this Court by 7th February 2011. 11. In the result, Writ Petition is partly allowed. (i) The impugned order dated 19-11-2004, passed by the Residential Deputy Collector, Parbhani, and the judgment and decree dated 16-8-2010, passed by the District Judge, Parbhani, (6) are quashed and set aside. The matter is remanded back to the Residential Deputy Collector, Parbhani, for decision afresh, in accordance with and in the light of the observations made above. (ii) The petitioners are directed to deposit a further amount of Rs. 1,00,000/- [Rupees one lac] with the Registry of this Court. (iii) After the amount is so deposited, the respondent no.2 shall proceed to hear the petitioner and the respondent no.1 and decide the controversy in accordance with law. Parties succeeding shall be entitled to withdraw the amounts deposited with the Registry of this Court. (iv) If the amount is not so deposited within the stipulated period, the respondent no.1 shall be at liberty to proceed with the recovery of the sum, in accordance with law, from the petitioners. 12. Rule is made absolute accordingly with no order as to costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp10115