SCA/5557/1987 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5557 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= MANGUBEN WD/O.AMBALAL PATEL - Petitioner(s) Versus GUJARAT HOUSING BOARD - Respondent(s) ========================================================= Appearance : MS VASUBEN P SHAH for Petitioner(s) : 1, MS KJ BRAHMBHATT for Petitioner(s) : 1.2.1, 1.2.2,1.2.3 None for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 19/11/2008 ORAL JUDGMENT 1. This petition has been preferred praying for following reliefs: SCA/5557/1987 2/11 JUDGMENT “(A) be pleased to admit this petition; (B) be pleased to issue a writ of Mandamus or a writ in the nature of mandamus or any other appropriate writ, direction and order against the respondent under Article 226 of the Constitution of India forbearing the respondent from allotting the tenement no.1143 situated in Sector 27, Gandhinagar to any person and/or further directing the respondent to put the petitioner in actual physical possession of the said tenement or any other similar tenement in the said area and further forbearing the respondent from taking any steps against the petitioner pursuant to the letter dated 29-9-87 at Annexure `F'...” 2. The petitioner, since deceased, has been substituted by his legal heirs as permitted by the Court vide order dated 8.5.1997. 3. The facts which are not in dispute are that the petitioner had applied in SCA/5557/1987 3/11 JUDGMENT response to a public advertisement dated 13.3.1983 for purchasing a residential house put up in Sector No.27, Gandhinagar, under Higher Income Group Scheme No.764 on hire purchase basis. The petitioner was allotted Tenement No.1143 admeasuring 4166 sq.mtrs. vide allotment letter dated 3.2.1984 by the respondent-Board. A sum of Rs.15,300/- was paid by way of deposit being 25% of the value of the tenement. As per condition No.6 of the allotment letter, the petitioner was liable to pay monthly installment of Rs.824/- for a period of eight years, as stated in the succeeding condition, namely condition No.7. Admittedly, the petitioner made payment of monthly installments upto the month of March 1985, the last installment having been paid on 28.3.1985. The petitioner does not dispute the fact that the petitioner had not made payment of any further monthly installment. The petitioner has thereafter approached this SCA/5557/1987 4/11 JUDGMENT Court seeking a direction qua the respondent-Board to forbear from allotting the tenement in question to any other person and other reliefs. 4. Upon notice having been issued, the respondent-Board has put in appearance and tendered affidavit-in-reply dated 7/8.4.1988. In paragraph-12 of the affidavit-in-reply, the respondent states that after the impugned notice dated 29.9.1987, the premises in question have already been allotted to the next person in the waiting list and possession has already been handed over to one Shri Jagubhai Vitthaldas Patel, resident of Sector No.16, Gandhinagar. 5. The learned advocate for the petitioner assailed the action of the respondent- Board on the ground that as per allotment letter, the petitioner was to be handed over possession after remaining personally SCA/5557/1987 5/11 JUDGMENT present at the stated office in Gandhinagar or Ahmedabad but on the day the petitioner went to the office at Gandhinagar, no responsible person was present to hand over possession of the premises to the petitioner. It is the say of the petitioner that thereafter, the petitioner visited the office of the respondent-Board at Gandhinagar a couple of times but no possession of the premises was actually handed over to the petitioner. That the petitioner had paid fourteen installments regularly subsequent to the allotment but thereafter, because the petitioner fell ill and being an agriculturist, suffered due to poor monsoon, could not pay the balance installments. The learned advocate therefore submits that in the circumstances, the action of the respondent-Board in taking recourse to the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, SCA/5557/1987 6/11 JUDGMENT 1972, is not warranted. It was submitted that the statutory requirements laid down by the provisions of the said Act have not been complied with and the possession of the petitioner divested under the provisions of the said Act is illegal and unwarranted. Lastly, it was submitted that in light of the averments made in the affidavit-in-reply, the petitioner is not only never put in possession of the premises, but proceedings for eviction have been taken against the petitioner and the premises have been allotted to a third party, and, therefore, the petitioner must not be asked to make payment of any further sum either by way of outstanding installments due or by way of penalty. 6. None appears on behalf of the respondent- Board though the matter was heard at length on 17.11.2008 and again today. 7. However, the petition does not merit SCA/5557/1987 7/11 JUDGMENT acceptance. Considering the prayers made, the relief by way of a direction to the respondent-Board forbearing it from allotting the premises in question to any person cannot be granted in light of the subsequent developments which have come on record by way of affidavit-in-reply. Similarly, the alternative prayer to direct the respondent to put the petitioner in actual possession of the premises also cannot be granted for the same reasons. The prayer that the petitioner be put in actual physical possession of any other similar tenement in the said area by the respondent- authority cannot be granted. The petitioner had entered into a contract with the respondent-Board and as per the terms of the said hire purchase contract, certain obligations in law were cast upon the petitioner before the petitioner could claim absolute title to the property. The petitioner having failed to carry out the SCA/5557/1987 8/11 JUDGMENT conditions of making payments of the installments at regular intervals cannot seek performance of the contract by the respondent-Board either in relation to the same premises or any other premises. In fact, in absence of any contract in relation to any other premises, such a relief cannot be granted. 8. So far as the last prayer is concerned, namely directing the respondent to forbear from taking any further steps against the petitioner pursuant to letter dated 29.9.1987, suffice it to state that the petitioner had already incurred the obligation under the contract and cannot be permitted to resile from the said contract or seek modification of the contract. That is something which the parties to the contract can work out after negotiations of their own. The Court cannot direct one of the parties to the contract to re-write the terms of the SCA/5557/1987 9/11 JUDGMENT contract. 9. The entire petition is based on a misconception as to the position in law. As per terms of the letter of allotment dated 3.2.1984, it is clear that if the petitioner did not obtain actual possession of the premises within thirty days from the date of tendering of acceptance letter, the possession is deemed to have been handed over and accepted by the petitioner upon completion of the said period of thirty days. Therefore, the grievance of the petitioner that the petitioner was never put in possession of the premises in question does not merit acceptance. 10.Similarly, grievance regarding the petitioner being evicted under the provisions of the Act is also misdirected in law. If the petitioner says that the petitioner was never put in possession, SCA/5557/1987 10/11 JUDGMENT there can be no question of making a grievance as to operation of provisions of the Public Premises Eviction Act. In any view of the matter, the issues raised in relation to lack of compliance with the provisions of the said Act can be raised by way of statutory remedy of appeal as provided by Section 9 of the said Act. 11.The petitioner also cannot complain about lack of opportunities considering the notices issued on 28.2.1986 (Annexure-D) and 25.9.1986 (Annexure-E). In fact, the subsequent notice specifically is complying with the requirements of the provisions of the Public Premises Eviction Act in calling upon the petitioner to make payment of the outstanding dues within a period of ten days and also produce evidence as regards the amount of installments paid for seeking credit thereof failing which the premises shall be allotted to some other applicant. SCA/5557/1987 11/11 JUDGMENT Admittedly, the petitioner did not avail of the opportunities granted. The averments in the petition for such failure about the petitioner being ill or being prevented by financial stringency due to weak monsoon are mere bald averments without any evidence in support of such averments. Hence, even on this count, the petitioner cannot succeed. 12.In the aforesaid set of facts and circumstances of the case, it is apparent that on none of the grounds pleaded in the petition or urged at the time of hearing is the petitioner entitled to any relief. The petition is accordingly rejected. Rule discharged. There shall be no order as to costs. (D.A.Mehta, J.) (sunil)