S.D. Shah, J.@mdashPresent Civil Revision Application is filed by Gujarat State Road Transport Corporation, original defendant, against the judgment and order passed in Exhibit 5, i.e., for an application for temporary injunction preferred by the respondent in the Court of Small Causes at Surat in Regular Civil Suit No. 551 of 1987 and confirmation of such order by the lower appellate Court by judgment and order dated 5th December, 1995 in Misc. Civil Appeal No. 279 of 1992.
2. Being aggrieved by such order of injunction which is granted against the Gujarat State Road Transport Corporation by two Courts below, the present Civil. Revision Application is preferred u/s 115 of the C.P. Code mainly on the ground that the premises in possession of the respondent is "Public Premises" as defined by Section 2(f) of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. By virtue of Section 16 of the said Act, it is submitted that jurisdiction of the Rent Court or the jurisdiction of any Civil Court with respect to such Public Premises was barred and suit cannot be entertained by any Civil Court. It would be just and proper at this stage to refer to definition of "Public Premises" as given in Section 2 as well as the bar of jurisdiction of Civil Court enacted by Section 16 of the said Act.
Sec. 2. In this Act, unless the context otherwise requires:
(a) "Competent Officer" means an officer appointed as such by the State Government u/s 3;
(b) "Corporate authority" means by Municipal Corporation, Municipality, Panchayat or other Corporation referred to in Clause (f) of this section;
(c) "land" includes benefits to arise out of land and things attached to the earth or permanently fastened to the earth or permanently fastened to anything attached to the earth;
(d) "premises" means any land or any building or part of a building and includes -
(i) the garden, grounds and outhouses, if any, appertaining to such building or part of a building, and
(ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;
(e) "prescribed means prescribed by Rules made under this Act;
(f) "public premises" means any premises belonging to or taken on lease or requisitioned by, or on behalf of, the State Government, and includes any premises belonging to, or taken on lease by, or on behalf of -
(i) any Municipal Corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949 or any Municipality constituted under the Gujarat Municipalities Act, 1963,
(ii) a Panchayat constituted under the Gujarat Panchayats Act, 1961.
(iii) any Corporation (not being a Company as defined in Section 3 of the Companies Act, 1956) established by or under a Central or State Act, and owned or controlled by the State Government, and
(iv) any University established or incorporated by or under any law in the State of Gujarat or any institution recognised by the University Grants Commission or declared by the Central Government to be a University, in accordance with the provisions of Clause (f) of Section 2 or of Section 3, as the case may be, of the University Grants Commission Act, 1956.
(g) "rent" in relation to any public premises, means the consideration payable periodically for the authorised occupation of the premises, and includes -
(i) any charge for electricity, water or any other services in connection with the occupation of the premises;
(ii) any tax (by whatever name called) payable in respect of the premises, where such charge or tax is payable by the State Government or the Corporate authority;
(h) "unauthorised occupation" in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reasons whatsoever.
Sec. 16 Bar of Jurisdiction:
No Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person on the ground that he is in an unauthorised occupation of any public premises or for any other reason specified in Sub-section (1) of Section 4, or the recovery of the arrears of rent payable under Sub-section (1) of Section 7 or the damages payable under Sub-section (2) of that section or the cost awarded to the State Government or the Corporate authority under Sub-section (5) of Section 9 or any portion of such rent, damages or costs.
3. In view of the aforesaid statutory provision, it was submitted before this Court by Mr. Y.S. Lakhani, learned Counsel for the petitioner-Corporation that the Small Causes Court at Surat was not justified in entertaining a suit at the instance of a person who was in unauthorised occupation of "Public Premises" which are of the ownership of the petitioner-Corporation. He submitted that a special procedure is provided for eviction of a person who is in unauthorised occupation of the public premises by the said Statute and in view of special procedure therein coupled with Section 16 of the said Act, jurisdiction of the Civil Court is expressly barred. He, therefore, submitted that the two Courts below committed a serious error of jurisdiction which could always be gone into by this Court u/s 115 of the C.P. Code.
4. In order to appreciate the dispute between the parties, it would be necessary at this stage to make reference to few relevant facts which has given rise to the present proceeding.
5. It may be noted that there is no dispute that the land in question along with superstructure thereon originally belonged to State of Gujarat and the present respondent and other persons were tenants of the superstructure paying rent at the rate of Rs. 1,492.22 ps. per annum. There was a proposal moved by the Gujarat State Road Transport Corporation to the State Government to acquire the said parcel of land for the purpose of constructing a bus stop at Surat and acquisition proceedings were commenced by issuing a Notification u/s 4 of the Land Acquisition Act, 1981. Since there were persons in possession of the superstructure, negotiations were resorted to with such persons and by settlement, the persons in possession of the superstructure agreed to hand over peaceful and vacant possession of the superstructure to the Gujarat State Road Transport Corporation. It would not be out of place to mention that the present respondents have already instituted Regular Civil Suit No. 778 of 1976 in the Civil Court at Surat and it was in such pending suit that ultimately a compromise was entered into and the suit was withdrawn by the respondents-plaintiffs.
6. It appears that on 15th September, 1976, a writing was executed by the plaintiff in favour of the petitioner-Corporation that on certain terms and conditions stipulated in the said writing, he would get the constructed area of 200 square feet on licence at a licence fee of Rs. 200/- per month for an initial period of 10 years and thereafter it will be open to the Gujarat State Road Transport Corporation to invite public tenders and to give the said premises to the highest bidder and if the plaintiff was ready and willing to pay the highest bid, his licence at the rate of highest bid will be renewed for a period of five years. By such agreement, the present plaintiff and other persons who were occupants of superstructure agreed to withdraw all the proceedings which they have instituted and accordingly Civil Suit No. 778 of 1976 was withdrawn.
7. Accordingly, agreement of Leave and Licence came to be executed between the petitioner-Corporation and the respondent-plaintiff on 22nd May, 1978, wherein the period of licence was fixed as commencing from 12th of May, 1978 to 11th of May, 1988. On the expiry of the said period of 10 years, the other terms and conditions of the licence were to operate and the plaintiff would become unauthorised occupant. Since the premises were thereafter held by the Gujarat State Road Transport Corporation on ownership basis as the ownership of the premises was vested in the Corporation after they were vested for the purpose by the State Government.
8. Since the period of ten years was approaching very fast, the respondent-Corporation called upon the respondent-plaintiff by Notice dated 7th November, 1987 that he may vacate the suit shop No. 9 w.e.f. 11th August, 1988 as the period of licence was to expire and that therefore, tenders were required to be invited as set out in the agreement between the parties. The process of inviting tenders was to be undertaken by the Corporation, but, before the same could be undertaken, the respondent-plaintiff instituted Civil Suit No. 559 of 1987 and in such suit, he applied for temporary injunction restraining the Corporation from taking possession of the shop No. 9 on the ground that he was, in fact, the tenant of the shop and that he was not the licensee and that he was not bound by the terms and conditions of the Leave and Licence Agreement dated 22nd May, 1978. He further submitted that the relationship between the parties was actually that of landlord and tenant and that he cannot be evicted out of the suit premises unless a decree of eviction is obtained against him under the provisions of the Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947.
9. In such suit, the petitioner-Corporation has appeared and filed its reply and taken up a contention that the premises in question were "Public Premises" and that the Civil Court or the Rent Court has no jurisdiction whatsoever with respect to the said premises to pass any order in view of Section 16 of the said Act as reproduced hereinabove. The trial Court vide its judgment and order dated 9th of October, 1992 granted injunction and Civil Misc. Appeal also came to be dismissed by judgment and order dated 5th December, 1995.
10. It is in the aforesaid fact situation that this Court is called upon to decide as to whether the interlocutory orders passed by the two Courts below are required to be interfered with firstly on the ground that neither the trial Court nor the lower appellate Court has jurisdiction to entertain the suit or to pass any order with respect to the Public Premises because of express bar created by Section 16 of the said Act. If the Civil Court or the Rent Court has no jurisdiction whatsoever and the procedure as prescribed under the same Act is required to be followed for the purpose of eviction of an unauthorised occupant, it goes without saying that the judgment and order of the two Courts below are required to be interfered with as they are passed without jurisdiction. On the other hand, if it is found that the provisions of the said Act are not attracted, this Court may not interfere with the concurrent judgments and orders of two Courts below.
11. Mrs. K.A. Mehta, learned Counsel appearing for the respondents submitted before this Court that in its revisional jurisdiction u/s 115 of the C.P. Code, the Court should not interfere when the two Courts have concurrently found that the respondents-plaintiffs have established prima facie case and that balance of convenience is also in their favour. As a proposition of law, no exception can be made, but, if Section 115 of the C.P. Code is read and if the Court is satisfied that Courts below have no jurisdiction to entertain the suit of this nature, the orders of the Courts below are orders of Courts without jurisdiction and the same can be surely interfered with u/s 115 of the C.P. Code. The matter is no longer res Integra as in the context of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 and more particularly Section 16 of the said Act, this Court has in the case of
12. In the present case, from the agreement produced on record the respondents are not disputing that the premises are the premises belonging to the petitioner-Corporation. They also do not dispute the fact that they are in possession of the premises pursuant to the agreement of Leave and Licence referred to hereinabove. The said agreement is dated 25th May, 1978. The contention on their behalf is that in fact the agreement is not one of Leave and Licence but is of tenancy and that they have become the tenant of the suit premises and that they cannot be evicted under the provisions of the said Act, 1972. In my opinion, such a contention is not available to the respondents-plaintiffs as by their very conduct they are estopped from pleading tenancy. In fact, on acquisition of the land for the purposes of providing bus stop for Gujarat State Road Transport Corporation, they were liable to be evicted from the entire parcel of land. They were not the owners of the land but they were simply the tenants of the State Government. At the most, they would have claimed compensation of their leasehold rights and nothing more. At the same time, they were conscious of the fact that they would be permanently deprived of the premises to which they were in possession. Therefore, in negotiation with the Gujarat State Road Transport Corporation, they agreed to hand over the peaceful and vacant possession of the premises along with superstructure on condition that shop of specific dimension is constructed and it is given to them as licensee for a period of 10 years and that licence fee was also a very minimal licence fee of Rs. 200/- per month. Under the said agreement they thus secured a specific benefit to themselves and agreed to the term that on the expiry of period of 10 years, the Corporation would be entitled to invite offers by public tender for the said shop and after receipt of the highest offer, if the licensee in possession was ready and willing to pay the equivalent amount, his licence would be continued for a further period of five years. They fully enjoyed licence which was granted to them for a period of 10 years; they were also put into possession of the constructed shop which was constructed by the Corporation. However, at the expiry of the period of 10 years when they were called upon to vacate by virtue of a notice, they instituted the suit in the Small Causes Court in the year 1987, i.e., prior to the expiry of the period of licence. They obtained ex parte injunction and from 1987 till date they have continued to be in possession of the said shop in total breach of the agreement executed by them with the Corporation or in total breach of the representation to the effect that they were bound by the terms and conditions of the agreement and that they would abide by such terms and conditions. They having taken full advantage of the said agreement and having enjoyed the possession of the suit shop as a licensee for full period of 10 years under the agreement duly executed by them, they cannot now be permitted to contend that in fact tenancy was created in their favour. Even after the expiry of the period of licence in the year 1988, they enjoyed possession under the order of injunction issued by two Courts below. In fact, by their very conduct, they are estopped from contending anything contrary to what they have agreed to in writing. Had they stated earlier, they would be claiming as tenant, the Corporation would not have agreed and the Corporation would have insisted to recover possession of the premises by paying appropriate compensation. It is unfortunate that the party who had backed out from the agreement and the promise given under such agreement, is protected by two Courts below especially when the two Courts have no jurisdiction with respect to the premises in question.
13. It is not necessary at this stage to decide the question as to whether the respondents-plaintiffs are tenants or licensees as in my opinion from the tenor of the agreement and various terms and conditions stipulated therein, the respondents intended the agreement to be one of licence only.
14. Whatever may be the claim of the respondents-plaintiffs, in my opinion, the Small Causes Court at Surat had no jurisdiction to entertain the suit of this nature. Admittedly, the premises in question belonged to the Gujarat State Road Transport Corporation, being its shop situated on the bus stop. The respondents-plaintiffs are earning their livelihood or much more income from such shop as in a town like Surat a shop situated on the bus stop would fetch very huge amount. In fact, at present, the very shop is likely to fetch very huge monthly licence fee to the Corporation compared to the meagre amount of Rs. 200/- per month. It is not at all disputed before this Court that the premises in question are Public Premises as defined by Section 2(f) of the said Act. It is also not disputed before this Court that by prior notice in writing the respondents-plaintiffs are called upon to hand over peaceful and vacant possession of the suit shop on expiry of the period of agreement. It is also not disputed that on expiry of the said period, the occupation of the respondents-plaintiffs is not protected under the agreement. They are, therefore, prima facie in unauthorised occupation of the suit premises as defined by Section 2(h) of the said Act. The procedure for eviction of persons in unauthorised occupation of public premises is now specifically provided by the State Law, namely, the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. The entire procedure is required to be followed and the petitioner-Corporation has stated before the Court that in fact they have commenced proceeding under the said Act by issuing notice of eviction and by initiating Eviction Case No. 6 of 1990.
15. In view of the aforesaid decision of this Court in the case of Gujarat State Road Transport Corporation v. Vimlaben (supra) is squarely attracted to the facts of this case. In the said case, this Court observed as under:
3A. Mr. Pranav Desai for Mr. G.N. Desai for G.S.R.T.C. firstly submitted that in view of specific statutory bar enacted by Section 16 of the aforesaid Gujarat Statute the Civil Court has no jurisdiction whatsoever to entertain any proceedings with respect to eviction of a person from public premises. He further submitted that the book stall is of the ownership of the Corporation and was allotted on licence basis subject to terms and conditions stipulated in the agreement to Vimlaben L. Shah. On completion of period of licence, she was liable to vacate the said stall but since she did not vacate the book stall and instituted Civil suit, the Corporation through its competent authority has no other option but to resort to statutory power given by Section 16 of the said Act. Said provision not only confers power of eviction on the specified authority but also prescribes elaborate procedure to be followed by the competent authority and further prescribes the remedy of appeal. In every respect, the procedure prescribed by the said Statute is a complete Code in itself and therefore, the legislature advisedly ousted the jurisdiction of the Civil Court so as not to create two parallel jurisdictions in two authorities. The ouster of jurisdiction of the Civil Court is so clear that it is not open to the unauthorised occupant to move the Civil Court even for injunction and the Civil suit instituted by Vimlaben L. Shah in the Civil Court was absolutely without jurisdiction. Secondly, he submitted that even if under misconception of law and without knowing the inherent absence of jurisdiction the trial Court has proceeded to pass an order of injunction it was inherently lacking any jurisdiction and the order was non-est, null and void in the eye of law and confirmation of such non-est order even by the District Court would not infuse life in an order which was still-born.
4. In the second C.R.A. he very vehemently submitted that when the Civil Court has no jurisdiction, whatsoever, u/s 16 of the said Act, Section 10 of the C.P.C. would have no application whatsoever because Section 10 empowers a Civil Court to stay the proceeding of the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. He submitted that proceedings before the competent authority under the provisions of Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 cannot be described by any stretch of imagination to be a "suit" within the meaning of the said term as understood in the common parlance or as defined in its dictionary meaning. He submitted that when the proceedings before the Civil Court are ousted of by the provision of a subsequent Statute, the provision of general law cannot be attracted as under the well-known maxim ''Generalibus Specialia Derogant'' - when a special provision is made on a certain matter, that matter is excluded from the general provision. This principle is also applied in resolving conflict between two different provisions of different Acts. The said provision would exclude the general provision and accordingly Section 10 of C.P.C. can have no application to eviction proceedings initiated by the competent authority under the aforesaid Act. In the case of Jadeja Shivubha Dolubha v. G.S.R.T.C reported in 18 GLR 656, the learned single Judge of this Court while dealing with Section 16 of the said Act has taken the view that the word "entertain" in Section 16 of the said Act would not only mean "receive and determine" but also means ''to adjudicate upon" or "proceed to consider on merits". If this is the real meaning of the word "entertain" it cannot be gainsaid that the legislature u/s 16 clearly intended that Civil Courts shall have no jurisdiction to adjudicate upon or proceed to consider on merits any claim in any suit or proceedings in respect of eviction of any person on specified grounds from public premises. In other words, the legislature by adopting the word "entertain" clearly intended to oust the jurisdiction of Civil Courts.
5. In view of the aforesaid decision of the learned single Judge of this Court and even otherwise from specific language employed by Section 16 of the said Act, there is no manner of doubt that the Gujarat Legislature by enacting Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 intended to create an independent and separate authority to decide the dispute of eviction from public premises by the competent authority and it also wanted to completely oust the jurisdiction of the Civil Court so as to avoid initiation of any parallel proceedings or invocation of parallel jurisdiction before the Civil Court. Despite the aforesaid legal position, the Civil Judge (J.D.) at Bhavnagar not only entertained the suit but granted injunction in favour of the allottee whose term of licence has expired and against whom the proceedings of eviction were initiated by the competent authority. The very act of entertaining the suit was without jurisdiction as the Civil Court lacked the jurisdiction, or to put it mildly its jurisdiction was specifically ousted by the special Statute.
16. In view of the aforesaid settled legal position, the suit filed by the respondent-plaintiff was as such without jurisdiction and the Rent Court has no jurisdiction to pass any order because jurisdiction of the Rent Court is specifically ousted. The orders passed by two Courts below were, therefore, absolutely without jurisdiction and are, therefore, liable to be quashed and set aside and are hereby quashed and set aside and the injunction granted in favour of the respondent-plaintiff is vacated.
17. It is clarified that defendants shall take possession of the suit premises from the respondent-plaintiff by following the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. Mr. Y.S. Lakhani, learned Counsel appearing for the Gujarat State Road Transport Corporation stated that admittedly the Corporation has already commenced the proceeding and it will take possession of the suit premises after following procedure prescribed by the said Act.
In the result, Rule is made absolute. The judgment and order of the two Courts below are quashed and set aside. There shall be no order as to costs.
