The Gujarat High Court has reiterated that merely because a wrong provision is quoted by the authority for exercising its power, it would not invalidate the order if it is shown that such an order could otherwise be passed under other provisions of the statute.
Accordingly, Justice AS Supehia declined to quash an order of eviction against the writ petitioner by holding:
"The petitioner has no right to keep on occupying the property of the respondent Nagarpalika even after the demise of his father, to whom the property was given on rent for 11 months in the year 1971. The provisions of the Eviction Act has been precisely invoked in the case of the petitioner and hence, no interference by this Court is necessitated."
The tenant-father of the Petitioner had been issued an eviction notice u/s 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in 1977. However, he was allowed to stay due to an order of the Civil Court. In the instant application, the Petitioner, the occupant of land in question, was challenging the order of the Sub-Divisional Magistrate who had held that the Petitioner was an unauthorised occupant of the property in question since he was a adopted child and adoption is not allowed in Islamic Law.
The Petitioner argued that he being an adopted son was a 'protected tenant' and could not be evicted by relying on the definition of 'tenant' u/s 5(11)(c)(2) of the Gujarat Rents, Hotel and Lodging House Rates Control Act. Further, relying on Suhas H. Pophale Vs. Oriental Insurance Company Limited and its Estate Officer, the Petitioner submitted that the Eviction Act would only apply in those cases where the occupants had occupied the authorities after the Act came into force. However, the Petitioner had already occupied the place before 1972.
Per contra, the Respondent submitted that merely because the Civil suit had been decreed in his father's favour did not imply that the same decree would be extended after the demise of the father. The Respondent had not extended the rent agreement for the property which belonged to the Nagarpalika.
Subsequent to these contentions, the Petitioner had pointed out that notice was issued to him under Section 5 of the Eviction Act and no notice was issued under Section 4 which was the appropriate provision. Hence, the entire procedure to evict him should be nullified.
As regards the issue of the rent agreement, Justice Supehia confirmed that the Respondent had not entered into any agreement with the Petitioner. Further as per Sec 4(1) and 4(4) of the Rent Act, it was clear that the provisions will not apply to Government or local authority premises. Thus, the father of the Petitioner and the Petitioner himself could not be a 'protected tenant' under the Rent Act. Justice Supehia explained:
"In absence of such agreement the petitioner cannot step into the shoes of his father and claim to be a legal occupier of the premises."
To address the issue of the wrong provisions, Justice Supehia referred to Ram Sunder Ram vs. Union of India & Ors. to hold that citing a wrong provision of law did not vitiate the exercise of power so long as the power did exist and could be traced to an available source of law.
Accordingly, the writ petition was dismissed.
Case No.: C/SCA/3189/2018
Case Title: JAFERKHAN ALLARAKABHAI RADHANPURI v/s DHOLKA NAGAR PALIKA
Citation: 2022 LiveLaw (Guj) 339