IN THE HIGH COURT OF GUJARAT AT AHMEDABAD. SPECIAL CIVIL APPLICATION NO 8842 OF 1989 For Approval and Signature : Hon'ble MR. JUSTICE S.K.KESHOTE --------------------------------------------------------- 1. Whether Reporters of Local Papers may be allowed to see the Order ? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the Order ? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? --------------------------------------------------------- RAMBHABEN PANNABHAI VERSUS DISTRICT COURT, SURENDARNAGAR --------------------------------------------------------- Appearance: MR MR PRAJAPATI for MR MC BHATT for the Petitioner None present for the Respondent --------------------------------------------------------- CORAM : MR JUSTICE S.K. KESHOTE Date of Order : 20/01/2001 C A V JUDGMENT #. The petitioner, by this petition under Articles 226 and 227 of the Constitution of India praying for quashing and setting the order dated 30.6.88 passed by the competent authority under the Bombay Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred as the Act, 1972) at Annexure-E and judgment at Annexure-F of Joint District Judge at Surendranagar in Appeal No.2 of 1988 and judgment dated 16.12.89 in review application No.1 of 1989. #. The facts of the case are that the petitioner was appointed as Sweeper under the order Annexure-B dated 16.8.1975 in the District Court, Surendranagar and she continues in service. #. New building of District Court, Surendranagar was constructed somewhere in the year 1956. Mother-in-law Monghi Ghella of the petitioner was appointed as sweeper by the then District & Sessions Judge Zalavad Division vide order Annexure-A dated 29.9.1956. One room and small open Varandah situated in the compound of the District Court was allotted to the mother-in-law of the petitioner, as a residential quarter to her. The petitioner residing in the said quarter since her marriage with the deceased Monghi Ghella. In the year 1975, Moghi Ghella was retired. The District Court, Surendranagar made a reference to the competent authority under the Act, 1972 for the eviction of the petitioner from the quarter in dispute. The competent authority issued notice Annexure-D dated 21.9.86 to the petitioner and she was called upon to show cause as to why she should not be summarily evicted from the quarter. She appeared before the competent authority and stated that did show valid cause against eviction. #. The competent authority passed order in case No.17 of 1986 on 30.6.88 and directed for the eviction of the petitioner from the quarter. The order of the competent authority was appealable under the Act. The petitioner filed appeal No.2 of 1988 in the Court of District Judge, Surendranagar which came to be dismissed on 12.9.89 by the Joint District Judge, Surendranagar. The Joint District Judge, Surendranagar while dismissing the appeal of the petitioner granted her time upto 11.10.89 to vacate the quarter. This judgment of the Joint District Judge, Surendranagar dated 11.10.89 in Appeal No.2 of 1988 was challenged by the petitioner in this court earlier in Special Civil Application No.7169 of 1989. This petition was withdrawn by the petitioner on 9.10.89 to file review application before the appellate court. The petitioner filed Review Petition No. 1 of 1998 accordingly, which came to be rejected by the Joint District Judge, Surendranagar under its order dated 16.12.89. Hence this Special Civil Application. #. This Special Civil Application was admitted on 28.12.1989 and interim relief in terms of para 9(B) has been granted. #. None of the respondents have cared to file reply to the Special Civil Application. In this case the respondent No.1 is District Court, Surendranagar and respondent No.3 is this court. The respondent No.2 is the State of Gujarat through Deputy Collector and it is understandable from its side if the reply is not filed. As my experience goes in substantial number of the cases the officers of the State of Gujarat are not cared to file replies. However, this approach and attitude which may be privilege of State of Gujarat is difficult to appreciate and expect from the District Court, Surendranagar and this Court. This court time and again heavily come against the State of Gujarat and its officers for not filing reply to Special Civil Applications but if this Court itself does not file the reply to the Special Civil Application then it is a matter of serious concern. This Court, in the petition against it is expected to take all care and file the reply to the same with time limit is provided in its Rules. Though I am of the opinion that the respondent No.3, this Court is neither necessary nor proper party to this petition but once it is impleaded as a party and notice has been issued and served it has to file reply thereto and therein this point could have been raised. I fail to see any justification in the approach of this court not to file reply to this Special Civil Application. Not only this on behalf of the respondent No.3 neither advocate nor any of its officer is also present in the court to make oral submissions also. #. Equally, it is difficult to appreciate and expect this approach of the District Court, Surendranagar not to file reply to the Special Civil Application. Where in a litigation District Court is a party it is expected from it to file reply to the proceedings within reasonable time of service of notice. Being a District Court its officers are expected to know the basic principles of pleadings that where the facts in the petition are not denied by the respondent can be taken to have been admitted by it. It is true that this petition is against the order passed by the competent authority and the judgment of the Joint District court but it is always advisable and also in the larger interest of the institution as well as towards safer side to file reply or at least to send an officer with complete record to provide effective assistance to the court in the matter. Assistance of the party to the court in the proceedings is very necessary and this much is expected to be known or understood by the respondent Nos. 1 to 3 but that has also not been done in the present case. #. During the course of arguments in the matter filed against the decision of the competent authority or the court many questions of facts may arise for consideration and for which the reply from the other side or at least the record of the matter with the officer to assist the court is desirable. #. The learned counsel for the petitioner contended that the possession of the petitioner of the quarter is not unauthorised nor it became unauthorised. In his submission the proceedings could not have been initiated against the petitioner under the provisions of the Act, 1972. It is contended that the Act, 1972 does not oust the jurisdiction of civil court in the common law. For the eviction of the petitioner from the quarter only remedy available to the respondent No.1 to file civil suit. ##. Shri Prajapati, learned counsel for the petitioner urged that the District Judge, Surendranagar on its administrative side before initiation of the proceedings against the petitioner under the Act, 1972 has not passed any order directing the petitioner to vacate the quarter. It has next been contended that the proceedings are initiated against the petitioner for eviction from the quarter on the ground that her work was not satisfactory and it is a punitive action. Lastly it is contended that the learned Joint District Judge, Surendranagar has erred in appreciating the order of this court in Special Civil Application No.7161 of 1979 made on 9.10.1989. The notices are to be served upon all the occupants of the quarter is not done. It is urged that the learned appellate court has not properly appreciated and followed in its true spirit the decision of this court reported in 1977 GLR 666 (Mansingh Dhulaji Vs. Ahmedabad Municipal Corporation). #. I have given my thoughtful consideration to the submissions made by the learned counsel for the petitioner. ##. The order of this court dated 9.10.89 in Special Civil Application No.7169 of 1989 is produced by the petitioner which is at page No.49 as Annexure-G. This order reads as under :- "Mr.Bhatt learned Advocate for the petitioner submits that as several contentions were required to be raised in appeal and were as such not raised, the petitioner intends to file review petition before the ld. District Judge and therefore intends to withdraw this petition. Permission to withdraw this petition is accordingly granted. This petition stands disposed of as withdrawn/at this stage. Executive of the order dated 30.6.88 is stayed upto October 20, 1989 provided possession is not already taken away from the petitioner." ##. On reading of this order of the court I do not find any merits in the contention of the learned counsel for the petitioner that the learned Joint District Judge has not properly appreciated the order of this court aforesaid. Against the order passed in the appeal of the petitioner that Special Civil Application has been filed and it has been withdrawn by the counsel for the petitioner. The reason given for withdrawal was that as several contentions which were required to be raised in the appeal were not raised, the petitioner intends to file review petition before the learned District Judge and therefore intends to withdraw the petition. This permission as prayed was granted by the court. The court has not said anything on the merits of the matter nor given any direction to the appellate court. Only execution of the order dated 30.6.88 was stayed upto October 20, 1989 provided the possession of the quarter was not already taken away from the petitioner. The withdrawal of the petition filed against the order in the appeal against the petitioner possibly made for the reasons to give a fresh life to litigation by filing review application. This type of approach possibly may be there of the litigant when the court was not inclined to give any relief on merits. From reading of this order of the court, prima facie it appears that the petitioner would have failed to pursue in the matter to the court and would have taken the course to withdraw the petition to file review application. ##. I have gone through the order of the Joint District Judge, Surendranagar dated 16th December, 1989 passed on the Review Application and I do not find any illegality whatsoever therein which calls for interference of this court under Articles 226 & 227 of the Constitution. The petitioner has widened the scope of review to the extent where otherwise it was not permissible. The learned Joint District Judge, Surendrangar, has in fact, considered this matter afresh though earlier he dismissed the appeal and has consumed both in hearing arguments and giving the judgment, more than the time than what it was necessary. Each and every aspect of the matter has been gone into, considered and decided. It is unfortunate that the petitioner is not satisfied. The petition under Articles 226 & 227 of the Constitution is not a remedy of appeal. This court under either of the Articles is not sitting as an appellate court over the decision given by the Joint District Judge, Surendranagar. ##. It is a clear case where the petitioner is unauthorisedly occupying the public premises. The learned counsel for the petitioner has failed to produce on the record any documentary evidence to show that she is lawfully occupying this premises. It is also not the case of the petitioner nor she could produce any document that this premises has been allotted to her by the District Judge, Surendranagar. It is true, earlier lady - Monghi Ghella was occupying this premises but she retired from services and though the petitioner was appointed but simultaneously no order has been passed to allot this premises to her. To certain extent, the District Judge, Surendranagar has also not taken care of this premises. Once that lady retired from the services, possession of the quarter should have been taken then and there and then it has to be kept with him to be used for office purpose or where it has to be allotted, then to allot the same to the employee in order of seniority. For the reasons best known to the then District Judge, Surendranagar, the possession of the premises was not taken from that lady. The petitioner may be relative of that lady. That lady and the petitioner would have been residing in the premises together but the fact remains that it was not allotted to the petitioner and in the absence of allotment order of this premises in her favour, her possession thereof is nothing but only an unauthorised occupation. It is really shocking that this lady is serving with the District Court and still talking of technicalities and insisting for continuing in unauthorised occupation of the premises. Rightly, the proceedings have been drawn against her by the District Judge under the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. This remedy is available and rightly it has been resorted and the petitioner has failed to show her lawful possession on the premises and the order passed of her eviction from the premises is perfectly legal and justified, more so when the same has been confirmed in the appeal which order she unsuccessfully challenged before this court and again it was confirmed in review application. This plea taken that the notice was not given to all the occupants it is suffice to say that the notice is to be given to the concerned person and the concerned person was the petitioner and rightly she alone was given notice and this order has been passed. More so how far it is justified in the facts of the case to raise such contention by the petitioner instead of vacating the premises. The remedy of civil suit needs not to be taken. So far as title is concerned it is not in dispute that it is of Government. So far as possession of premises with earlier lady is concerned, it is also not in dispute that she was occupying the premises as she was in service of the District Court. The petitioner has failed to show her lawful possession of the premises. She has not claimed title of the premises or any other right. Her status is only that of a trespasser (unauthorised occupant) and rightly, order has been passed by the competent officer of her eviction therefrom and which order has been confirmed in appeal and in review application also. In the result, this special civil application fails and the same is dismissed. Rule discharged. The petitioner is directed to hand over vacant possession of this premises to the District Judge, Surendranagar, within fifteen days from the date of receipt of writ of this order and compliance of the order be reported to this court. In the facts of this case, no order as to costs. ....... Pvv/sunil