STATE OF MAHARASHTRA Vs. RAMU MOTIRAM MOTWANI

JUDGEMENT

(1.) In this writ petition filed under Articles 226 and 227 of the Constitution of India, the State of maharashtra has challenged the order dated 19-10-1992 passed by the Resident Deputy collector (R. D. C. ) respondent No. 2, in proceedings initiated by it under section 4 (2) of the Bombay Government Premises (Eviction) Act, 1955 (hereinafter referred to as "the Act" for short). The R. D. C. has rejected the said application holding that the respondent No. 1 who was sought to be evicted was never a authorised occupant and he installed his panthela under the authority of R. T. O. Employees Credit Co-operative Society.

(2.) Mrs. Khade, learned Assistant Government Pleader appearing for petitioner has pointed out that the said application under section 4 (2) of the Act, was filed against the respondent No. 1 stating that after the new building of R. T. O. was constructed by P. W. D. possession of office building was taken on 1-5-1989 from Public Works Department and the respondent No. 1 encroached upon the government land in the premises of the office building of R. T. O. and has erected panthela in the compound of the building. Either the Public Works Department nor the regional Transport Officer has permitted the respondent No. 1 to install the panthela or to carry out his business in the premises. As the respondent is an unauthorised and illegal occupant, prayer was made to evict him as contemplated by section 4 of the Act. A show cause notice was thereafter issued to him by the Authority and the respondent No. 1 filed his written statement on 22-6-1990 before the respondent No. 2. The respondent no. 1 in his reply denied that there is any encroachment on Government land and he further denied that he is in unauthorised occupation of the premises. He contended that he is a tenant of R. T. O. Employees Credit co-operative Society Ltd. , from last 25 years and has been paying rent to the said society. He also pointed out that the Civil Suit having No. 560/ 1988 is pending in the Court of joint Civil Judge, Junior Division, Nagpur regarding dispute between him and the r. T. O. and the Civil Court has already passed order granting injunction and has restrained the said authority from taking any action in the matter of his eviction. Thereafter, the parties filed written notes of arguments and in the written notes of argument the petitioner has pointed out that the civil suit mentioned above was not against the R. T. O. but against the R. T. O. Employees Credit Co-operative Society. The respondent No. 2 has considered the situation and found that the applicant before it i. e. R. T. O. failed to show that the provisions of the Act are attracted. The said authority held that when Government premises or building are allotted to any person and there is breach of terms and conditions of allotment, the said act is attracted. If found that as the respondent No. 1 was not allotted or leased out the premises by the R. T. O. and as the R. T. O. admitted that the respondent No. 1 has encroached upon the land no action under the provisions of the Act is possible.

(3.) Mrs. Khade, contended that the approach is erroneous and contrary to the provisions of the Act. It is her contention that the Act prescribed procedure and machinery for eviction of tress passers also from government premises. She contends that the burden to show that the respondent No. 1 was not an unauthorised occupant was upon the respondent No. 1 and if the respondent no. 1 wanted to show that he had any authority to install his panthela on Government land, he ought to have produced such authority and discharged that burden. It is her contention that as the respondent No. 1 did not discharge that burden the respondent no. 2 ought to have presumed that the respondent No. 1 had no such authority and therefore, ought to have passed order of his eviction. She has also invited attention to the another order passed by the same authority in another case instituted by the present petitioner, against one Shamrao Daulal masram. It is her contention that in this case the authority has passed the order for eviction of Shri Masram, who was unauthorisidely running cycle stand on Government premises. She contends that the authority has thus taken a directly opposite stand in the matter of the present respondent No. 1.