High Court Punjab-Haryana High Court

Balwant Rai vs Zila Parishad on 20 May, 2009

Punjab-Haryana High Court
Balwant Rai vs Zila Parishad on 20 May, 2009
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
`gian