GUJARAT HOUSING BOARD Vs. RAMESHBHAI T BHATT

JUDGEMENT

(1.) Admit. By consent of the learned Advocate for the respective parties heard and finally decide. This Letters Patent Appeal is directed against the order dated 19/12/1988 by the learned single Judge of this Court in Spl. Civil Application No. 7361 of 1988 filed by respondent No. 1-Rameshbhai 1 Bhatt under Art. 226 of the Constitution of India directing the appellant Gujarat Housing Board to restore possession of the premises bearing No. 78/343 situated at Sector 24 Gandhinagar to the responnent No. 1 as the possession is unauthorisedly taken away from the respondent No. 1 by the appellant. The learned Judge also directed the respondent No. 1 to deposit the entire amount of instalments due and payable to the Board by respondent No. 3 In this Court on or before 10/01/1989 and on the said amount being deposited in this Court the Board is at liberty to withdraw the said amount and credit towards the dues in respect of the premises in question.

(2.) The undisputed facts are that the respondent No. 3-P. N. Trivedi is the allottee of the premises in question and was in arrears of instalments for the period upto September 1988 and in arrears of rent for more than seven months Therefore notice was served as inquired under Sec. 4 of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act 1972 (hereinafter referred to as the Public Premises Act) and that notice was affixed on the conspicuous part of the premises. Respondent No. 3 did not appear before the component authority and the competent authority passed the eviction order dated 11/08/1988 under Sec. 5 of the Public Premises Act and directed the respondent No. 3 who was the only party to the proceedings to hand over the possession on or before September 13 1988 It transpires that the eviction order was affixed on the conspicuous part of the premises as the respondent No. 3 was not available. As the possession was not handed over by the respondent No. 3 possession warrant was issued by the competent authority and the possession was taken from the respondent No. 1/10/1988 It is clear from the panchnama that the respondent No. 1 was in possession of the premises and his households wAre removed from the premises and the possession was taken from him. According to the respondent No. 1 appellant be rein and the respondent No. 3 were in collusion to take away possession from him even though be was residing in the said premises right from 1978 and used to pay rent at the rate of Rs. 100.00 per month from March 1978 and than Rs. 150.00 per month from April 1988 though the amount of the instalments was Rs. 66.00 per month. The respondent No. 1 petitioner in the Special Civil Application contended that the possession of the said premises is unauthorisedly taken away from him and the notice dated 7/10/1938 was served to him by the competent authority to show cause within 30 days as to why possession of the premises should not be taken from him and before the expiry of the 30 days the possession of the premises is taken away from him on 25/10/1988

(3.) Mr. M. C. Shah Estate Manager Division No. III of the Gujarat Housing Board respondent No. 2 present appellant in the affidavit deposed that the respondent No. 3-P. N. Trivedi was the allottee of the said premises and the respondent No. 1 was the sub-lessee and as per the agreement entered into between the Gujarat Housing Board and the allottee and as per the Disposal of Property Regulations framed by the Gujarat Housing Board no transfer is allowed by the allottee who is holding the premises on hire purchase and it is only after full price of the premises are paid by the allottee and after holding the premises for three years and that too by the consent of the Board the transfer is allowed. The respondent No. 3 allottee had not paid full price of the premises and was the tenant of the appellant-Gujarat Housing Board and was in arrears of rent for more than seven months and also in arrears of instalments. Therefore proceedings were started against him under Sec. 4 of the Public premises Act and as he did not appear before the competent authority eviction order was passed against him. It is therefore clear between even according to the appellant Gujarat Housing Board the respondent No. 3 was a tenant and the respondent No. 1 was a sub-tenant of the premises but no proceedings were started for taking possession on the ground of sub-lease or unauthorised sub-letting but proceeding were started only for non-payment of the rent for the period of about 7 months and the respondent No. 1 was not a party to the proceedings and even thee possession vas taken away from him in the execution of the warrant.