L.P.A.No.284 of 2008 (O&M) [1 ]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
L.P.A.No.284 of 2008
Balwant Rai … Appellant
VERSUS
Zila Parishad, Ludhiana and others … Respondents
L.P.A.No.285 of 2008
Rajinder Singh … Appellant
VERSUS
Zila Parishad, Ludhiana and others … Respondents
L.P.A.No.286 of 2008
Satwinderpal Singh … Appellant
VERSUS
Zila Parishad, Ludhiana and others … Respondents
L.P.A.No.287 of 2008
Rattan Singh … Appellant
VERSUS
Zila Parishad, Ludhiana and others … Respondents
L.P.A.No.284 of 2008 (O&M) [2 ]
L.P.A.No.288 of 2008
Devinder Singh and others … Appellants
VERSUS
Zila Parishad, Ludhiana and others … Respondents
L.P.A.No.289 of 2008
Kulwinder Singh … Appellant
VERSUS
Zila Parishad, Ludhiana and others … Respondents
Decided on : May 20, 2009
CORAM :
HON’BLE MR.JUSTICE UMA NATH SINGH
HON’BLE MR.JUSTICE A.N.JINDAL
Present: Mr.Amit Rawal,
Advocate for the appellants.
Mr.Ashish Verma, Advocate
for respondent No.1 – Zila Parishad.
A.N.JINDAL, J.-
This judgment shall dispose of six Letters Patent Appeals
directed against the common judgment dated 13.08.2008 passed by learned
Single Judge of this Court setting aside the order of the Commissioner –
respondent No.2 and restoring the order of the Collector – respondent No.3,
ordering ejectment of the appellants, who were having kiosks (Khokhas)
(later converted into shops) on the land in dispute.
This is second round of litigation thwarting the efforts of the
respondent Zila Parishad (herein referred as `respondent’) for ousting their
L.P.A.No.284 of 2008 (O&M) [3 ]
licensees – appellants (herein referred as `appellants’) from the unauthorised
occupation over the land under the respondent. The prime question
involved in the instant appeals is whether the licensees even after the expiry
of their licenses could stay in the premises against the wishes of the
licensor.
Though the controversy involved in all the six appeals is one
and similar, but for the just decision of the same, the facts are being taken
from L.P.A.No.284 of 2008.
The respondent is a statutory body constituted under the Punjab
Samitis and Zila Parishad Act, 1961 (herein referred as Zila Parishad Act).
In or around 1950, the respondent had given wooden kiosks to some
persons, who had migrated from Pakistan on license. After the expiry of the
license period, the respondent had moved for ejectment of the licensees
under the Punjab Public Premises (Eviction and Rent Recovery) Act, 1959
(herein referred as Punjab Public Premises Act). The matter went upto the
Supreme Court. However, during pendency of the SLP in the Supreme
Court, an agreement had arrived at between the parties i.e, the Zila Parishad
and the appellants/licensees to the effect that the Zila Parishad will remove
the kiosks and build the `Pucca’ shops and the same would be given to the
occupants as licensees. It has further been agreed that license fee would be
determined by the agreement and the area of the shops would also be
determined according to the needs and area of kiosks, occupied by the
licensees. The agreement was complied with by the parties and the
appellant agreed to occupy the shop as licensee for five years at the license
L.P.A.No.284 of 2008 (O&M) [4 ]
fee as fixed by the agreement and accordingly, he was put in possession in
Shop No.52, Guru Teg Bahadur Market, Ludhiana (herein referred as the
`disputed premises’). As per Clause 11 of the agreement, the license fee
was to be increased to the extent of 3% in every five years. Pursuant to the
aforesaid agreement executed in the year 1976, the license continued upto
16.6.1981 and on renewal upto the year 1986. In the meanwhile, Punjab
Panchayat Samitis and Zila Parishad (Sale, lease and other alienations of
property and public places) Rules, 1964 (herein referred as the ‘Rules of
1964’) were amended in the year 1984. The amended Rules provided for
enhancement of the lease money by 10% of the existing lease amount, per
year. Herein, it was also provided that in case, the licensee does not agree
to such increase, then the property shall be leased out by auction. In
nutshell, according to the amended Rules, 1964 the property or any public
place belonging to the respondent or Panchayat Samiti could be given on
lease only by way of auction after giving due publicity and further with the
occupant, who wanted to continue as lessee and could get the lease deed
renewed three months prior to the expiry after enhancing the lease money
by 10% per annum. According to Rule 3(b)(ii), the respondent approached
the appellant and other similarly situated licensees for enhancement of the
license fee/lease money by 10%, but they resisted and did not agree to
renew the license after the year 1986. they also did not vacate the shops
after expiry of the lease period.
Sometime in the year 1989, some of the licensees including the
appellant had filed CWP No.12881 for issuing a direction for quashing the
L.P.A.No.284 of 2008 (O&M) [5 ]
enhanced license fee i.e, to the extent of 10% per annum, which was
dismissed vide order dated 25.4.1990 (Annexure P-2). However, in Review
Application filed by the appellant/s, the order dated 25.4.1990 was recalled
with the observations that the appellant/s (petitioners therein) may seek
their remedy in Civil Court. However, no civil suit was filed. After the
expiry of the lease period, the application filed by the respondent under
Public Premises Act for ejectment of the appellant was accepted, against
which an appeal was preferred before the Commissioner, Patiala Division,
Patiala, who vide order dated 23.11.1998 (Annexure P-5) set aside the order
of ejectment passed by the Collector, Ludhiana dated 13.7.1994 (Annexure
P-4) and remitted the case back with the following observations:-
“…the respondent -Zila Parishad will assess the remaining
recoverable amount w.e.f, the last date of the expiry of lease
and calculate enhancement @ 3% only and convey the same to
the lessees, who would be duty bound to deposit the same
within a period of one month from the date such orders are
received by him, failing which, the same can be recovered as
arrears of land revenue. With the above observations the
parties present have been advised to appear before the
Collector on 15.3.1999.
A copy of this order be placed in all the five files for
information and record.
Sd/- RPS Pawar
Commissioner, Patiala Division
Patiala”L.P.A.No.284 of 2008 (O&M) [6 ]
On filing of the review petition by the Zila Parishad, the
Commissioner, Patiala Division, Patiala dismissed the same vide order
dated 12.10.1999 (Annexure P-6). Aggrieved by the aforesaid orders, the
Zila Parishad filed writ petitions, which were allowed and the learned
Single Judge held as under:-
“In the result, this petition is allowed, the order of the
Commissioner is set aside while that of the Collector ordering
the ejectment of the private respondent is restored. It is,
however, directed that the private respondent is granted 6
months time to vacate the premises. No costs.”
It is the aforesaid order of the learned Single Judge, which has been sought
to be challenged by way of the instant appeals.
Submission of the appellant – licensee is that the respondent
Zila Parishad has concealed the material facts as in the year 1997, the
respondent had served a legal notice upon the appellant by giving reference
to the notification dated 25.4.1984 and that the appellant had already
enhanced the license fee which is being paid to the respondent, and,
thereafter referred to the fact that the appellant had approached the
respondents and on account of verbal statement, the license fee was
assessed at the rate of Rs.984/- per month for one year and the arrears after
fixation of the license fee upto 31.08.1997 had been paid. It is further
submitted that through the aforesaid notice, the appellant had been called
upon to deposit the arrears of license fee at the rate carrying an increase of
10% with effect from 1.9.1996 to 31.8.1997 and upto date after the
L.P.A.No.284 of 2008 (O&M) [7 ]enhancement of the same by 10% from the previous year’s license fee. The
appellant had also replied to the notice through his counsel, stating that the
provision to increase the license fee by 10% is applicable only to those
shops which were allotted in an open auction and further stated that the
shop in question was taken at a monthly rent of Rs.285/- per month and the
respondent is illegally recovering the enhanced rent from the appellant
under duress, mis-representation, and on threat of eviction. It was
specifically stated that the license deed was required to be written afresh
and in case a document is there, then the same would continue and the
appellant would remain a tenant by efflux of time on the same terms and
conditions, on which the shop was earlier let out.
As regards the civil suit, it was submitted that it was filed,
however, the same was withdrawn on the assurance given by the counsel for
the respondent in the Trial court. Further more, it is contended that the
appellant is not under any obligation to execute the fresh license deed as
the old license deed is still subsisting between the parties and no
enhancement could be made. The factum with regard to the previous round
of litigation upto the Supreme Court of India and with regard to entering
into agreement with the respondent has been admitted. However, it was
submitted that other 15 persons did not initiate any legal proceedings when
the matter was pending before the Apex Court. However, the compromise
was also arrived at between said 15 persons and the shops were also
allocated to those 15 persons as well as to those 14 persons, who had
initiated the legal proceedings. It was also admitted that pursuant to the
agreement in the year 1976, the license deed was executed between the
L.P.A.No.284 of 2008 (O&M) [8 ]respondent and the appellant/s and they were allowed to use the shops as
licensees and the license fee was fixed at the rate of Rs.708/- per month.
In the year 1981 i.e, on 16.6.1981, a fresh license deed was executed
between the respondent and the appellant/s. It was also submitted that as
per clause (7) of the deed (Annexure P-1), license fee was to be increased
by 3% to which the licensee had no objection. It has been further averred
that on 13.5.1988, the appellant/s had received a notice dated 25.4.1984
from the respondent calling upon him/them to pay the increased license fee
by 10% by giving reference to the rules and further called upon to execute
an agreement. Failing to comply with the terms of the notice, another
notice was received on 4.8.1989, vide which the license executed in their
favour was terminated and it was stated that if they continue to occupy the
premises in question, the application for ejectment under Punjab Public
Premises and Land (Eviction and Rent Recovery) Act, 1973 would be
initiated.
The learned Single Judge while examining all the documents
and giving due consideration to the rival contentions reached the conclusion
that order of the Commissioner was not correct, therefore, after holding that
since the petitioners (appellants herein) had not entered into a fresh
agreement and were unauthorised occupants, directed their ejectment by
restoring the order passed by the Collector.
Arguments heard. Record perused.
The matter in nutshell relates to the shops situated in the
commercial vicinity of the business hub of the State of Punjab i.e.
Ludhiana. Initially, the appellants were allotted specific portion on
L.P.A.No.284 of 2008 (O&M) [9 ]payment of some license fee. Thereafter, they erected kiosks thereon.
Subsequently, the respondents agreed to construct shops at the site with the
intervention of the Apex Court and to give the same to the appellants by
way of license. There is no denying a fact that during the aforesaid period,
the Rules of 1964 had come into force, whereby, the Zila Parishad could let
out the shop only by way of auction and that too for a period of five years.
The said Rules were amended by introducing Punjab Panchayat Samitis
and Zila Parishads (sale, lease and other alienation of property and public
places) (First Amendment) Rules, 1984 (hereinafter referred as Rules of
1984.
In the Rules of 1984, the following words were added in
Clause (b) to Rule 3:-
“Provided that the auction shall not be necessary for the grant
of lease of property or public place if, –
(i)such property or public place is proposed to be leased out to
the Central Government, State Government, a Corporation or
a Board owned or controlled by the Government or to a
Mahila Mandal and in such a case the amount of lease
money shall be assessed by the Executive Engineer,
Panchayati Raj working in the Department of Rural
Development and Panchayats in accordance with the
principles being followed by the Department of Public
Works in assessing the rental value of the property;
(ii)the person to whom the property or public place is initially
leased out by auction agrees, three months prior to the expiry
L.P.A.No.284 of 2008 (O&M) [10]of the lease period, to enhance the lease money by ten
percent of the amount of existing lease money per year.”
In the said Rules of 1984, after Rule 7, the following words have been
added:-
“8.(1) If the person to whom the property or public place
is leased out under the provisions of these rules neither delivers
to the Panchayat Samiti or Zila Parishad, as the case may be,
the vacant possession of the property or public place
immediately after the expiry of the period of lease nor agrees to
enhance the lease money as provided in clause (ii) of the
proviso to clause (b) of rule 3, within the period specified
therein, he shall, for the period he retains the property or public
place in an unauthorised possession, be liable to pay to the
Panchayat Samiti or Zila Parishad, as the case may be, an
amount equivalent to twenty times the amount which would
have been payable had the lease of such property or public
place continued during that period.
(2) The provisions contained in sub-rule (1) shall be deemed
to be one of the terms of lease of property and public place
granted by the Panchayat Samiti or Zila Parishad, after the
commencement of the Punjab Panchayat Samitis and Zila
Parishads (sale, lease and other alienation of property and
public places) (First Amendment) Rules, 1984.”
No doubt, initially the occupants were inducted as licensees,
L.P.A.No.284 of 2008 (O&M) [11]however, with the incorporation of the aforesaid rules, certainly the same
became applicable to the appellants as the Statutory Rules would supersede
the conditions of the license agreement and it would not be lawful for the
appellants to claim different treatment for their long stay. As such, the
appellants could not claim the protection of stipulations in their agreements
prior to 1964, but they were duty bound by the stipulations as incorporated
in the Statutory provisions. Actually, the appellants being the licensees had
no claim to stay, on non-compliance of the provisions of the aforesaid
Rules. They continued dragging the respondents on account of one
litigation or the other. It is third round of litigation on the basis of which
they are claiming their possession. Earlier, in view of the judgment dated
16.10.1969 delivered by the Apex Court, the shops were constructed and
possession of the same was given to the appellants under an agreement as
licensees for a period of five years, which continued upto 1986.
Thereafter, on account of the amendment in 1984, when the appellants were
asked to enter into fresh agreement after making payment of enhanced lease
money by 10% of the existing lease money per year, they (19 persons) filed
CWP No.12881 of 1989 titled “Gurbax Singh and others vs. Zila Parishad,
Ludhiana and another”, in which the Division Bench of this Court vide its
judgment dated 25.4.1990 while dismissing the petition observed as under:-
“The challenge here is to the demand for enhanced license fee,
on the wholly untenable plea that the provisions of Punjab
Panchayat Samities and Zila Parishad (Sale, lease and other
alteration of property and Public Places) Rules, 1964
(hereinafter referred to as `the Rules’) were not applicable, as
L.P.A.No.284 of 2008 (O&M) [12]the petitioners had entered into possession of the shops under
agreements.
Admittedly, the shops belong to the Zila Parishad and the
petitioners have been in possession thereof, as licensees and
what is more, the agreements referred to by them were for a
limited period of time which has since elapsed. No exception
can thus be taken to the Zila Parishad calling upon them to pay
enhanced license fee in terms of rule 3(b) of the Rules.
Dismissed.
April 25, 1990 sd/- S.S.Sodhi, Judge sd/- A.P.Chowdhri, Judge"It appears that since the doors of the appellants to insist for
their claim were shut for all times to come, they moved an application for
review of the aforesaid order, wherein, the Division Bench while allowing
the application, passed the following order:-
“We recall our order dated April 25, 1990 and instead dismiss
the writ petition with the observation that the petitioners may
seek their remedy in the Civil Court.
September 7, 1990 sd/- S.S.Sodhi, Judge sd/- A.P.Chowdhri, Judge"Any way, though the Division Bench had recalled the detailed order, yet
they had dismissed the writ petition and directed the petitioners therein, to
seek remedy before Civil Court, if they so desired, however, the Division
Bench was never of the view that the respondents were not within their
L.P.A.No.284 of 2008 (O&M) [13]powers to enhance the license fee.
It is worthwhile to notice that the appellants (licensees/
petitioners in the aforesaid writ petition) though, had filed a civil suit, but
they, for the reasons best known to them, had withdrawn the same.
Faced with the situation, the Collector, Zila Parishad, Ludhiana
had to apply for ejectment of the appellants from the premises on the
ground of unauthorised occupancy. It is well-settled by now that in case of
public premises owned by the Government or the semi-Governmental
bodies, on the expiry of the lease, the possession of the premises becomes
unauthorised and illegal and no further notice is required and the
Authorities are vested with the powers under the Public Premises Act for
ejecting the unauthorised occupants and they could deal with the public
premises in accordance with the provisions of Punjab Public Premises
(Eviction of Unauthorised Occupants) Act. There is no denying a fact that
the shops in possession of the appellants are public premises. It has also
not been denied that the appellants had earlier been in possession as
licensees and after the licenses had expired in 1986, they did not opt to
renew the license as per terms and conditions under the Rules of 1984. As
such, after the expiry of the period of lease, they were unauthorised
occupants. Resultantly, the District Development and Panchayat Officer-
cum- Collector, Ludhiana, while exercising the powers under the Public
Premises Act, accepted the petitions and ordered the ejectment of the
appellants while observing as under:-
“…I have come to this conclusion that on 15.6.1986 the period
mentioned in the lease deed came to an end. The respondent
L.P.A.No.284 of 2008 (O&M) [14]
did not get the lease deed renewed according to the terms and
conditions of the Zila Parishad. It is correct that the respondent
did not take this shop in open auction but the license deed
signed by him contains a clause of the renewal of lease deed
every five years. It is clearly stated that in case any condition
is violated or he does not get his lease deed renewed at time
then he will be liable to be ejected. The respondent has
violated the terms of the lease deed and he did not get renewed
after 15.6.86. In so far as the question of notice for renewal of
the lease deed is concerned, the same is not required because it
is not the duty of the Zila Parishad that it should issue any
notice. Rather it is the duty of the respondent that it should get
its lease deed renewed in time as per the usual practice. Zila
Parishad had written a letter to the respondent that a fresh lease
deed may be written with 10% increase in rent but the
respondent did not do so…..”
At the end, the Collector ordered the ejectment of the respondent (appellant
herein) from the shop No.53. No illegality in the aforesaid order dated
13.7.1994 (Annexure P-4) could be pointed out by the counsel for the
appellants as has been rightly observed by the learned Single Judge. Since
the proceedings before the Collector under the Public Premises Act are of
summary in nature, no issues were required to be framed and the
Authorities are not required to deal with the case like a trial in a suit. The
Apex Court while dealing with the issue of res-judicata also dealt with the
procedure in such cases, in the matter of Inder Singh and another vs.
L.P.A.No.284 of 2008 (O&M) [15]
The Financial Commissioner, Punjab and others, 1997(1) PLJ 53 and
observed as under:-
“Shri Ujagar Singh, learned Senior Counsel for the appellants
contended that the view taken by the High Court is not correct
in law. Since the proceedings before the authorities are of
summary nature, the doctrine of res judicata has no application.
The Act does not prescribe any principles of res judicata as
such. The proceedings before the authorities are of summary
nature. It would not be correct to apply the principle of res
judicata. We find force in the contention. It is not in dispute
that the order passed by the authorities is without any
elaborate trial like in a suit but in a summary manner. It is
well settled law that the doctrine of res judicata envisaged in
Section 11 of CPC has no application to summary proceedings
unless the statute expressly applies to such orders. The
authorities are not civil Court nor the petition a plaint,
(emphasis laid). No issues are framed nor tried as a civil suit.
Under these circumstances, the Division Bench of the High
Court was clearly in error to conclude that the earlier
proceedings operate as res judicata.”
The order passed by the Commissioner dated 12.10.1999
(Annexure P-5) actually did not upset the earlier order, but it was only a
remand order to invite the parties to enhance the rent only at the rate of 3%
per annum after three years. Without commenting over the rate of
L.P.A.No.284 of 2008 (O&M) [16]
enhancement, it would be suffice to observe that the enhancement could
only be in terms of the provisions of Rules of 1984 and not under the
agreement prevailing prior to coming into force the said Rules.
As a matter of fact, the appellants are contesting nothing, but
resisting the enhancement. The order dated 12.10.1999 (Annexure P-5)
passed by the Commissioner, Patiala also refers to enhancement of rent,
which has been challenged in the present round of litigation.
At the cost of repetition here, it may be observed that earlier
also, the appellants had come to the Court by way of a writ petition, which
was dismissed by the Division Bench by observing that the authorities were
competent to enhance the rent as per the 1984 Rules. However, in order to
get rid of the said order passed by the Division Bench, the appellants appear
to have pleaded for mercy before the Court to agitate the issue before the
Civil Court. After withdrawal from the Civil Court, they continued to
contest the enhanced rent before the Collector or Commissioner, which
orders were again challenged in the writ petition, wherein, the learned
Single Judge vide the impugned judgment dated 13.8.2008, again while
validating the orders of the Authorities observed that the Rules would be
applicable after the expiry of the period as specified in the agreement.
Since the Commissioner, Patiala had also gone a step further without going
into the validity of the order of the Collector, therefore, the learned Single
Judge was justified in setting aside the order passed by the Commissioner
and restoring that of the Collector, whereby, the appellants were directed to
L.P.A.No.284 of 2008 (O&M) [17]
ejected from the premises, which were in their unauthorised occupation
after the year 1986.
In view of the above discussion, all these appeals being devoid
of any merit are hereby dismissed.
( UMA NATH SINGH ) ( A.N.JINDAL )
JUDGE JUDGE
May 20, 2009
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