IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No. 15264 of 2007
DATE OF DECISION : 23.12.2008
Shadi Lal
.... PETITIONER
Versus
Panchayat Samiti Mukerian and others
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr. S.K. Sharma, Advocate,
for the petitioner.
Mr. K.S. Dadwal, Advocate,
for the respondents.
***
SATISH KUMAR MITTAL , J.
The petitioner, who was a tenant of Panchayat Samiti,
Mukerian – respondent No.1, has filed this petition under Articles 226 and
227 of the Constitution of India for quashing the order dated 19.5.2004,
passed by the Sub Divisional Magistrate, Mukerian, exercising the powers
of the Collector under the Punjab Public Premises and Land (Eviction and
Rent Recovery) Act, 1973 (hereinafter referred to as `the Act’), ordering the
eviction of the petitioner from the shop in dispute, and recovery of amount
of due rent, amounting to Rs.2,20,548/- from the petitioner as arrears of land
revenue; as well as the order dated 15.2.2005, passed by the Deputy
Commissioner, Hoshiarpur, exercising the powers of the Commissioner
CWP No. 15264 of 2007 -2-
under the Act, dismissing the appeal of the petitioner against the aforesaid
order.
The brief facts of this case will show how a tenant of a local
body, by mis-using the provisions of law, remained in possession of a shop
let out to him in a public auction for 16 years without payment of a even a
single penny as rent.
In the present case, in an open auction, the petitioner took shop
No. 13 on rent from respondent No.1 Samiti at the monthly rent of Rs. 825/-
being a highest bidder. He took possession of the shop on 1.1.1988. As per
the terms and conditions of the auction, the rent was to be paid by the tenant
by 10th of every month. The rent was also to be increased by 10% every
year. The petitioner did not pay any rent after taking possession of the shop,
in spite of the notices issued to him in this regard. Ultimately, respondent
No.1 Samiti was constrained to file an application for ejectment under the
provisions of the Act in April, 1993 and for recovery of the rent due,
amounting to Rs. 62,557/- at the rate of Rs. 825/- per month, including 10%
annual increase for each year, in the rent as per the agreement between the
parties. In the said ejectment application, the petitioner was duly served. He
appeared before the Collector and contested the application. Both the parties
were directed to lead evidence in support of their respective version.
Respondent No.1 Samiti examined two witnesses and produced several
documents. The petitioner was afforded many opportunities to cross
examine the witnesses and lead evidence, but on three consecutive dates i.e.
CWP No. 15264 of 2007 -3-
on 15.3.1994, 18.3.1994 and 21.3.1994, neither the petitioner nor his
counsel came present. Ultimately, the Collector proceeded the ex-parte
proceedings against the petitioner and decided the ejectment application
vide order dated 29.3.1994, ordering the eviction of the petitioner and
further ordering the recovery of the rent upto 31.3.1993, amounting to Rs.
62,557/- as arrears of land revenue.
Against the abovesaid order, the appeal was filed by the
petitioner in June, 1994. The said appeal remained pending for four years
because of non-availability of the record of the Collector. Ultimately, vide
order dated 21.1.1998, the case was remanded to the Collector, Mukerian, to
decide the case after affording one more opportunity to the petitioner to
rebut the evidence led by respondent No.1-Samiti. After the remand, the file
could not be re-constructed due to non-cooperative attitude of the counsel
for the parties and the original file was not available, as the record of the
case was destroyed in a fire incident at Record Room, Hoshiarpur.
Therefore, the Collector, Mukerian, vide letter No. 2369 dated 29.7.1988
directed respondent No.1-Samiti to file a fresh case. Accordingly,
respondent No.1-Samiti, after serving notice to the petitioner for payment of
arrears of rent of Rs. 2,20,548/- from 1.1.1988 to 30.4.2000, filed a fresh
eviction application under the provisions of the Act, before the Sub
Divisional Magistrate, Mukerian, exercising the powers of the Collector. In
the said ejectment application, after the evidence led by respondent No.1
Samiti, the petitioner was afforded opportunity to adduce evidence, but in
CWP No. 15264 of 2007 -4-
spite of availing several opportunities, the petitioner, yet again, did not lead
any evidence in support of his claim. When the case was fixed for
arguments, the petitioner only filed written arguments. The Collector, after
hearing both the parties, ordered the ejectment of the petitioner, vide
impugned order dated 19.5.2004, while observing as under :
“I have perused the evidence brought on the file and also
carefully gone through the written arguments submitted by the
counsel for the petitioner. From the documentary evidence it is
clear that the Panchayat Samiti Mukerian is the owner of the
shop no. 13. The respondent in his written statement admitted
that he is in possession of the shop in dispute. The counsel for
the petitioner argued that shop no. 13 was leased to the
respondent on a monthly rent of Rs. 825/- per month with a
stipulation of 10% increase in rent every year and respondent
defaulted in making payment of Rs. 2,20,548/- upto 30.4.2000.
The respondent has failed to comply with the terms and
conditions of the agreement executed between the parties. No
evidence was produced by the respondent to controvert this
issue. I am fully agree with the argument of the petitioner’s
counsel that the respondent also breached the terms and
conditions laid down in the agreement. The respondent is in the
arrears of rent amounting to Rs. 2,20,548/- and he is liable to
pay the same.”
CWP No. 15264 of 2007 -5-
Against the aforesaid order, an appeal was filed by the petitioner before the
Commissioner. On 4.10.2004, during the pendency of the appeal, possession
of the shop in question was taken by respondent No.4. The Commissioner,
vide his order dated 15.2.2005, dismissed the appeal. Hence, this writ
petition.
After hearing counsel for the parties and going through the
impugned orders, we do not find any ground to interfere in the impugned
orders, in exercise of the writ jurisdiction of this Court. Undisputedly, in a
public auction, the petitioner had taken the shop in question on rent from
respondent No.1 Samiti at the monthly rent of Rs. 825/-. Though the
petitioner has denied that there was no stipulation of 10% yearly increase in
the rent, but a perusal of the terms and conditions of the auction (Annexure
P-10) shows that there was a clause providing 10% yearly increase in the
rent. Admittedly, possession of the disputed shop was taken by the petitioner
on 1.1.1988. Thereafter, from the said date till 4.10.2004, when possession
of the shop was taken by respondent No.4, not even a single penny was paid
by the petitioner towards the rent. Neither during the course of arguments
nor in the petition itself, any sufficient reason has been given by the
petitioner for non-payment of rent for such a long period. The petitioner was
taking frivolous plea that there was no provision for increase of rent and
because of that, he was not paying the rent, as respondent No.1 Samiti was
demanding the rent after adding 10% yearly increase in the rate of rent. This
explanation appears to be unjustified, because not even for a single day, the
CWP No. 15264 of 2007 -6-
petitioner has paid any amount of rent. In this petition, the petitioner has
taken various pleas that his ejectment order as well as the order of recovery
of due rent as arrears of rent are discriminatory and violative of Articles 14
and 16 of the Constitution of India, against the principles of natural justice,
abuse of powers, the authorities who have passed the impugned orders have
no jurisdiction and the second application for eviction was not maintainable.
In our opinion, a tenant, who has not even paid a single penny after the
inception of tenancy and enjoyed possession for 16 years, is not entitled to
be given a hearing on these frivolous pleas, particularly in exercise of the
inherent jurisdiction of this Court under Article 226 of the Constitution of
India.
Counsel for the petitioner argued that the Sub Divisional
Magistrate was empowered to perform the function of the Collector under
the provisions of the Act only vide Notification No. S.O. 44/P.A. 31/73/
S.2/2000 and the said notification was published in the Official Gazette on
13.6.2000. Therefore, when the second application was instituted on
2.6.2000, the Sub Divisional Magistrate was having no jurisdiction to
entertain the same. We do not find any force in the contention of learned
counsel for the petitioner. The aforesaid notification was issued and
published in the Official Gazette on 13.6.2000, but when the notice of
petition was issued and the order of ejectment was passed, the Sub
Divisional Magistrate was authorised to perform the function under the Act
as a Collector and he was very much competent to pass the impugned order.
CWP No. 15264 of 2007 -7-
Therefore, there is no jurisdictional error, as far as the order of eviction
passed by the Sub Divisional Magistrate, Mukerian, exercising the powers
of Collector under the Act, is concerned.
From the facts stated above, it is clear that the petitioner was
always provided more than sufficient opportunities to lead evidence in
support of his claim, but he never availed such opportunities, because
evidently he was having no evidence in support of his claim. In our opinion,
by adopting the delaying tactics and by not leading evidence in support of
his claim in spite of availing several opportunities, the petitioner has mis-
used the process of law with intention to delay the proceedings and to take
illegal and undue advantage of enjoying possession without payment of rent.
Even in this Court, the petitioner has taken more than three years. This is the
second petition filed by him. Earlier, CWP No. 9620 of 2005 came up for
motion hearing on June 17, 2005, which was adjourned to 1.7.2005, on the
request made by counsel for the petitioner. On 1.7.2005, it was again
adjourned to 1.8.2005, as no one was present on behalf of the petitioner. On
1.8.2005, counsel for the petitioner prayed for adjournment to seek
instructions from his client as to whether he has any evidence of payment of
rent since 1.1.1988. The case was then adjourned to 14.11.2005. On that
day, the case was again adjourned to 7.3.2006 on the written request made
by counsel for the petitioner. On 7.3.2006, counsel for the petitioner again
requested for more time to file additional documents, but the prayer was
declined and the writ petition was dismissed as withdrawn with liberty to the
CWP No. 15264 of 2007 -8-
petitioner to file fresh one, if so advised, by appending necessary documents
and complying with the orders made in the writ petition. Thereafter, the
instant second petition has been filed by the petitioner. In this petition also,
no document regarding payment of rent since 1.1.1988 has been filed. Even
in this case, the petitioner was not interested to argue the case and was
seeking adjournment on one pretext or the other. On 9.9.2008, no one was
present on behalf of the petitioner, but in the interest of justice, the case was
adjourned to 17.11.2008. On that day, a request for adjournment was made.
The request was allowed and case was adjourned to 3.12.2008 subject to
payment of costs. Thereafter, on 3.12.2008, the case was argued. All these
facts show that the petitioner is mis-using the process of law.
In view of the above, there is no merit in the instant petition and
the same is hereby dismissed with costs of Rs. 2,000/-.
( SATISH KUMAR MITTAL )
JUDGE
December 23, 2008 ( JASWANT SINGH )
ndj JUDGE