SCA/8209/1990 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8209 of 1990 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAMNIKLAL D CHAUHAN - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MS KRISHNA MEHTA FOR MR DM THAKKAR for Petitioner MR SP HASURKAR, AGP for Respondents ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 04/11/2006 ORAL JUDGMENT 1. By this petition under Article 227 of the Constitution of India, the petitioner challenges the order passed by the learned Extra Assistant SCA/8209/1990 2/9 JUDGMENT Judge, Junagadh, dated 8th January, 1990 in Regular Civil Appeal No.130 of 1988 to the extent the same confirms the eviction order passed by the respondent No.1 holding the petitioner to be an unauthorized occupant under the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (the Act). 2. The facts stated briefly are that the petitioner was serving as a Talati-cum-Mantri under the Taluka Panchayat, Talala. By an order dated 18th December, 1970, passed by the Medical Officer, Primary Health Centre, Talala (Gir), the petitioner was allotted a quarter of the Revenue (hereinafter referred to as “the premises in question”), which at the relevant time was occupied by a Vaccinator, Shri K.P.Rathod, as an office. 3. Pursuant to the said order, the petitioner occupied the premises in question and started paying rent as per the rules. It is the case of the petitioner that the respondent authority stopped accepting the rent from the year 1977. Thereafter, the Mamlatdar, Talala initiated proceedings for evicting the petitioner from the premises in question under the provisions of the Act on the ground that he was unauthorizedly occupying the said premises. 4. The Deputy Collector and the Competent SCA/8209/1990 3/9 JUDGMENT Authority, Veraval, by an order dated 30th July, 1988 passed under the provisions of the Act, held that it was proved that the petitioner was an unauthorized occupant of the premises in question, and directed that the same be vacated within a period of 30 days and be handed over to the Mamlatdar, Talala. The competent authority also held that the petitioner was liable to pay market rent at the rate of Rs.447/- per month for the last 18 years, which came to Rs.96,552/- and directed that the same be paid immediately. 5. Being aggrieved by the aforesaid order passed by the Deputy Collector and Competent Authority, Veraval, the petitioner preferred an Appeal under the provisions of Section 9 of the Act before the Extra Assistant Judge, Junagadh. By a judgement and order dated 8th January, 1990, the Appeal was partly allowed. The order passed by the Deputy Collector & Competent Authority, Veraval was set aside, and the matter was remanded to the competent authority, with a direction to, at the first instance, issue notice under sub-section (3) of Section 7 of the Act against the petitioner, and after considering his objections as well as any evidence that may be produced by him in support of the same, and after taking into consideration Rule 8 of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Rules, 1974 (the Rules) for assessment of damages, pass an SCA/8209/1990 4/9 JUDGMENT appropriate order thereon. The order passed by the competent authority, insofar as the same related to the eviction of the petitioner from the premises was confirmed. Hence, this petition. 6. Heard Ms.Krishna Mehta, learned advocate on behalf of petitioner and Mr.S.P.Hasurkar, learned Assistant Government Pleader for the respondents 7. Learned advocate for the petitioner submitted that the petitioner was put into possession of the premises in question by an order dated 18th December, 1970 passed by the Medical Officer, P.H.C., Talala (Gir). Pursuant to the said order, the petitioner had occupied the premises and had been paying rent to the treasury in accordance with the rules, and the same was being duly accepted by the authorities. Suddenly, in 1977, the authorities have stopped accepting the rent without assigning any reasons whatsoever. It was submitted that the petitioner had no reason to believe that the officer who had allotted the premises in question to him was not authorized to allot the same. Even prior to the occupation of the premises in question by the petitioner, the same had been occupied by Shri K.P.Rathod, who was Vaccinator. Therefore, it is evident that all throughout the said premises had been occupied by officers of the SCA/8209/1990 5/9 JUDGMENT Panchayat. In the circumstances, it may be that it was the Mamlatdar, Talala, alone, who was the officer who was authorized to allot the premises in question to the revenue authorities, however, the petitioner had no cause or reason to believe that it was the Mamlatdar who was the competent authority for allotting the premises in question, and not the Medical Officer, P.H.C., Talala. The respondents, by their action of accepting the rent, had also acquiesced with the allotment of the premises in question to the petitioner. In the circumstances, after a delay of 18 years, it was not open to the respondents to all of a sudden contend that the petitioner was in unauthorized occupation of the premises in question. It was submitted that, in view of their own action of accepting the rent for the premises in question upto 1977, and their inaction in taking any action or drawing the attention of the petitioner to the fact that the occupation of the petitioner was not authorized, the respondents are now estopped from contending that the occupation of the premises by the petitioner was unauthorized It was submitted that, in the circumstances, the finding given by both the authorities below that the petitioner was in unauthorized occupation of the premises in question, is illegal and invalid, and deserves to be set aside by this Court. 8. Mr.S.P.Hasurkar, learned Assistant Government SCA/8209/1990 6/9 JUDGMENT Pleader has submitted that the premises in question were under the administration and control of the Mamlatdar, Talala, and that the Mamlatdar, Talala was the allotting authority so far as the revenue quarters at Talala are concerned. It was submitted that the petitioner, without obtaining the permission from the allotting authority, had taken illegal possession of the said premises and inspite of service of notice, had failed to handover the possession of the same, and therefore, the Mamlatdar, Talala was constrained to file eviction case. It was submitted that, after full-fledged hearing, the Deputy Collector and the Competent Authority had arrived at the finding that the occupation of the premises by the petitioner was unauthorized and had accordingly, rightly directed that the same be vacated. It was submitted that the order passed by the Extra Assistant Judge, Junagadh, upholding the aforesaid finding of the competent authority, was just, legal and proper and did not warrant any interference at the hands of this Court. 9. As can be seen from the record of the case, it is apparent that the premises in question was a revenue quarter, which was under the administration and control of the Mamlatdar, Talala, who was allotting authority insofar as the quarters at Talala are concerned. In the SCA/8209/1990 7/9 JUDGMENT circumstances, Medical Officer, P.H.C., Talala (Gir) had no authority to allot the premises in question to the petitioner as he was not the allotting authority in respect of the said premises. However, viewed from the angle of equity, it is apparent that the quarter in question was earlier occupied by a Vaccinator Shri K.P.Rathod, who appears to have been working under the Primary Health Centre, Talala. The said quarter was allotted to the petitioner, who was a Talati cum Mantri with the Taluka Panchayat. Pursuant to the allotment, the quarter was handed over to the petitioner, who occupied the same and paid the rent as per the rules applicable to Government servants, and the same was duly accepted by the respondent authorities. In the circumstances, the petitioner had no reason to believe that his occupation of the premises in question was in any manner unauthorized Therefore, though strictly speaking, the petitioner could not be said to be in authorized occupation of the premises in question, it also cannot be stated that his occupation was totally unauthorized. Admittedly, the petitioner was holding the premises in question under an order passed by the Medical Officer, P.H.C., Talala. The rent in respect of the said premises was being accepted by the Treasury Officer. The Mamlatdar, Talala who was the authority that was authorized to allot the premises, has permitted SCA/8209/1990 8/9 JUDGMENT the petitioner to occupy the premises in question for several years, without drawing his attention to the fact that the occupation of the petitioner was unauthorized, nor taking any action to ensure that the premises in question were vacated. In the circumstances, the respondent authorities have, by their conduct, permitted the petitioner to believe that he was in authorized occupation of the premises in question, hence, they cannot now be heard to contend that the petitioner was occupying the premises unauthorizedly. 10.However, as the allotment in favour of the petitioner had not been made by the Competent Authority, and the petitioner not being a revenue officer, was not entitled to occupy the said premises, the direction to evict the premises in question cannot be found fault with. However, in the peculiar facts and circumstances of this case, the finding that the petitioner was in unauthorized occupation of the premises in question is required to be quashed and set aside. Consequently, the respondent authorities cannot be permitted to assess and recover damages from the petitioner under sub-section (2) of Section 7 of the Act. 11.For the afore-stated reasons, the petition partly succeeds and the same is allowed to the aforesaid extent. The impugned judgement and SCA/8209/1990 9/9 JUDGMENT order dated 8th January, 1990 passed by the Extra Assistant Judge, Junagadh, is set aside, to the extent it directs the assessment of damages under the provisions of Rule 8 of the Rules. However, the impugned order insofar as the same remands the matter to the competent authority with a direction to issue notice under Section 7(3) of the Act is concerned, the same is confirmed, with a modification that the notice shall be issued under sub-section (1) of Section 7 of the Act to assess the arrears of rent payable by the petitioner in respect of the premises in question. In the peculiar facts and circumstances of the case, it is directed that the rent that may be determined by the authority shall be in accordance with the rent payable by a Government servant in authorized occupation thereof at the relevant time. The rent shall be recovered only for the period subsequent to the period from which the respondent authorities had stopped accepting the rent from the petitioner. Rule is made absolute accordingly, with no order as to costs. [HARSHA DEVANI, J.] parmar*