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Judgment
[1] Rule. Learned advocate Mr. Dhaval Nanavati waives service of rule on behalf of respondents.
[2] These three petitions are filed for quashing and setting aside the notice dated 02.06.2014 issued by the Deputy Municipal Commissioner, Planning
and Development, Surat Municipal Corporation.
[3] Considering the same subject matter in all the three petitions and common contentions raised, all the petitions are taken up for joint hearing and
final disposal. Facts are extracted from lead matter i.e. Special Civil Application No.9463 of 2014.
[4] The subject matter is land bearing survey No.732, 75/17 and 735/a, where the petitioners claimed to be tenants in the property which was
purchased by the respondent-corporation by sale deed and thereafter, the action is proposed under the provisions of Public Premises Eviction of
Unauthorized Occupants Act, 1971 (for short “Public Premises Actâ€)
[5] Learned advocate appearing for the petitioners submit that out of the total land of aforesaid survey Number, 47 Sq.Mtrs. of land rented to the
predecessors of the petitioner since 1946, where father of the petitioner had started small business and after the death of the father of the petitioner,
the petitioner is now in the said premises as a tenant. It is submitted that the respondent-corporation for the purpose of town planning appeared to
have purchased the aforesaid survey number from the original owners by way of sale deed. The sale deed thus referred to sitting tenants in the said
property and therefore, the respondent-corporation had purchased the said survey number by a private sale deed alongwith tenants including the
petitioner. The corporation therefore, stepped into shoes of landlord of the petitioner and was accepting the rent from the petitioner.
[6] It is submitted that the petitioner who is a tenant can be evicted only by the proceedings under the Bombay Rent Act and it is not open for the
respondent-corporation to treat the petitioner as an unauthorized occupant to initiate action under the provisions of Public Premises Act. Learned
advocate has relied upon the judgment of Apex Court in the case of Dr. Suhas H.Pophale v/s. Oriental Insurance Company Limited and its Estate
Officer, reported in AIR 2014 SCA 1509 to contend that the petitioner who is recognized as a tenant in the premises, cannot be evicted by invoking
provisions of Public Premises Act.
[7] As against this, learned advocate for the respondent-corporation submitted that the premises in question was included and reserved for public
purpose by “District Center†in the sanctioned development plan of 1986 and therefore, the standing committee vide Resolution No.762 dated
29.06.1981 resolved to acquire premises through compulsory acquisition. It is submitted that as per the resolution bearing No.433 dated 28.09.1995 of
the standing committee of the first respondent, one Mr. Bhupendra Dhirajlal Sukhramwala, one of the occupants has entered into an agreement to sale
with the first respondent on 17.1.1997 whereby the area admeasuring 4836.18 Sq.mtrs of Nondh Nos. 693 to 731, 732, 735/K and 75/17 of Ward No.4
have been sold to first respondent with all responsibilities including the responsibility of tenants situated thereon. Hence, the first respondent has
become the owner of the said premises being Nondh Nos. 693 to 731, 732, 735/K and 75/17 of Ward No.4.
[7.1] It is submitted that since the first and second respondents have acquired the status of owners after the agreement to sale in their favour by the
occupants of the Nondh Nos. 693 to 731, 732, 735/K and 75/17 of Ward No.4 and the premises in question is acquired/purchased under clause 77 of
the B.P.M.C Act, 1949, as per the resolution bearing No.433 of 28.09.1995 the second respondent has issued the impugned notice dated 02.06.2014
wherein the second respondent has called upon the petitioners and asked them to remove the structure standing on the land premises of area
admeasuring 47 Sq.Mtrs as the property/land/premises was legally purchased by the first respondent for public purpose in the public good and paid the
sale consideration to Chunilal Purshottamdas Sukhramwala and others who are owners of of the land premises in the year 1997. The first respondent
desires to put the premises for public purpose and therefore needs the land premises and therefore, called upon to handover the vacant and peaceful
possession vide the impugned notice. The impugned notice only contemplates that in the event if the occupants are failed to hand over the vacant and
peaceful possession then second respondent will compel to take actions under the provisions of Public Premises Act against all the occupiers, who are
occupying the said land in question to remove and to handover the peaceful and vacant possession to the first and second respondents. The impugned
notice dated 02.06.2014 cannot be said notice issued under the provisions of Public Premises Act.
[7.2] It is submitted that the land is required to be acquired by the Surat Municipal Corporation as per Section 20 of the Town Planning and Urban
Development Act, either by compulsory acquisition under Land Acquisition Act or by negotiation under the B.P.M.C. Act. As per the resolution
bearing No.762 dated 29.06.1984, the Standing committee of first respondent has authorized the Municipal Commissioner to acquire the premises in
question under compulsory acquisition, which was approved and sanctioned by the State Government. The same was further acquired under Section
77 of the B.P.M.C. Act.
[8] Having considered the rival submission of the parties and perused the documents on record, it is not in dispute that the premises in question was
originally owned by one Suleman Kharva, who sold the said property to one Chunilal Purshottamdas Sukharamwala by registered sale deed dated
30.03.1942 and out the said land admeasuring 4834.17.58 Sq.Mtrs, 47 Sq.Mtrs land was rented to the predecessor of the petitioners by the said
Chunilal Parshottamdas in 1942. On 17.01.1997, the said Chunilal Parshottam agreed to sell the aforementioned parcel of land to the respondent-
corporation and accordingly, the registered sale deed was executed on 17.01.1997.
[9] It appears that the aforesaid sale deed was executed as premises were included in development plant of 1986 and the premises in question was
reserved for the purpose of “P-41 “District Centreâ€. Accordingly, the proposal was made, resolved and accepted by the standing committee
for purchase of the premises. The perusal of sale deed indicates that the tenants in the property were mentioned and therefore, the premises were
purchased by way of sale deed including the sitting tenants. The petitioners have paid the rent after 1997 to the Surat Municipal Corporation which
appears to have been accepted by the Surat Municipal Corporation. Copies of such receipts are produced on record. In the meantime, a notice dated
02.06.2014 came to be issued, wherein it was directed to the petitioners to remove the construction from the premises in question and handover the
vacant possession of the land to the Surat Municipal Corporation, failing which, the action would be undertaken under the provisions of Public
Premises Act, at the costs of the petitioners.
[10] Considering the fact that by conduct of the respondent-corporation, the corporation has accepted the petitioners as their tenants invoking the
provisions of the Public Premises Act appears to be unwarranted. The Apex Court in the case of Suhas H. Pophale (Supra) has held as under:-
“The overall consequence
In Ashoka Marketing (supra), this Court was concerned with the premises of two Nationalised Banks and the Life Insurance Corporation. As far
as Life Insurance Corporation is concerned, the life insurance business was nationalised under the Life Insurance Corporation Act, 1956. Therefore,
as far as the premises of LIC are concerned, they will come under the ambit of the Public Premises Act from 16.9.1958, i.e the date from which the
Act is brought into force. As far as Nationalised Banks are concerned, their nationalization is governed by The Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970, and therefore, the application of Public Premises Act to the premises of the Nationalised Banks will be from the
particular date in the year 1970 or thereafter. For any premises to become public premises, the relevant date will be 16.9.1958 or whichever is the
later date on which the concerned premises become the public premises as belonging to or taken on lease by LIC or the Nationalised Banks or the
concerned General Insurance Companies like the first respondent. All those persons falling within the definition of a tenant occupying the premises
prior thereto will not come under the ambit of the Public Premises Act and cannot therefore, be said to be persons in “unauthorised occupationâ€.
Whatever rights such prior tenants, members of their families or heirs of such tenants or deemed tenants or all of those who fall within the definition of
a tenant under the Bombay Rent Act have, are continued under the Maharashtra Rent Control Act, 1999. If possession of their premises is required,
that will have to be resorted to by taking steps under the Bombay Rent Act or Maharashtra Rent Control Act, 1999. If person concerned has come in
occupation subsequent to such date, then of course the Public Premises Act, 1971 will apply.
It is true that Section 15 of the Public Premises Act creates a bar of jurisdiction to entertain suits or proceedings in respect of eviction of any
person in an unauthorised occupation. However, as far as the relationship between the respondent No. 1, the other General Insurance Companies,
LIC, Nationalised Banks and such other Government Companies or Corporations, on the one hand and their occupants/licencees/tenants on the other
hand is concerned, such persons who are in occupation prior to the premises belonging to or taken on lease by such entities, will continue to be
governed by the State Rent Control Act for all purposes. The Public Premises Act will apply only to those who come in such occupation after such
date. Thus, there is no occasion to have a dual procedure which is ruled out in paragraph 66 of Ashoka Marketing. We must remember that the
occupants of these properties were earlier tenants of the erstwhile Insurance Companies which were the private landlords. They have not chosen to
be the tenants of the Government Companies. Their status as occupants of the Public Insurance Companies has been thrust upon them by the Public
Premises Act.
As far as the eviction of unauthorised occupants from public premises is concerned, undoubtedly it is covered under the Public Premises Act, but it
is so covered from 16.9.1958, or from the later date when the concerned premises become public premises by virtue of the concerned premises
vesting into a Government company or a corporation like LIC or the Nationalised Banks or the General Insurance Companies like the respondent no.1.
Thus there are two categories of occupants of these public corporations who get excluded from the coverage of the Act itself. Firstly, those who are
in occupation since prior to 16.9.1958, i.e. prior to the Act becoming applicable, are clearly outside the coverage of the Act. Secondly, those who
come in occupation, thereafter, but prior to the date of the concerned premises belonging to a Government Corporation or a Company, and are
covered under a protective provision of the State Rent Act, like the appellant herein, also get excluded. Until such date, the Bombay Rent Act and its
successor Maharashtra Rent Control Act will continue to govern the relationship between the occupants of such premises on the one hand, and such
government companies and corporations on the other. Hence, with respect to such occupants it will not be open to such companies or corporations to
issue notices, and to proceed against such occupants under the Public Premises Act, and such proceedings will be void and illegal. Similarly, it will be
open for such occupants of these premises to seek declaration of their status, and other rights such as transmission of the tenancy to the legal heirs
etc. under the Bombay Rent Act or its successor Maharashtra Rent Control Act, and also to seek protective reliefs in the nature of injunctions against
unjustified actions or orders of eviction if so passed, by approaching the forum provided under the State Act which alone will have the jurisdiction to
entertain such proceedings.â€
[11] Considering the provisions of Gujarat Planning and Urban Development Act, Section 68 thus provides with the power to appropriate authority to
evict summarily, but the perusal of the impugned notice does not appear to be a notice as provided under the provisions of the Gujarat Planning and
Urban Development Act. The impugned notice is in the form of order, ordering eviction of the premises and this cannot be an order either under the
provisions of Town Planning Act nor under the Provisions of Public Premises Act. In the facts of the present case, it is clear that the petitioners who
were indicated as tenants cannot be treated to be unauthorized occupants, till the time that the petitioners are declared as unauthorized. Merely
purchasing of the property by way of private sale deed will not extinguish the rights of the petitioners qua the respondent-corporation and hence, the
impugned notice does not appear to be a notice which is supported by any provisions of law and hence, deserves to be quashed and set aside. Hence,
the notice dated 02.06.2014 qua the petitioners is ordered to be quashed and set aside. The quashing of the impugned notice does not preclude any
other proceedings available under law considering the fact that the premises in question are reserved as part of the Town Planning Scheme.
[12] With the aforesaid, the petitions stand allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.