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2003 DIGILAW 159 (HP)

V. K SHARMA v. M. C. SHIMLA

2003-06-25

K.C.SOOD, V.K.GUPTA

body2003
JUDGMENT In this petition, filed under Article 226 of the Constitution of India, the petitioner has prayed for the following relief: (i) Annexure P-18, order dated 24.5.2002, Annexure P-16, order dated 19.4.2000 may kindly be quashed. (ii) Respondents may kindly be directed to produce the record. (iii) Costs of this petition may kindly be awarded in favour of the petitioner and against the respondents, (iv) Any other writ, order or direction as this Honble Court deems just and proper may also be passed in favour of the petitioner and against the respondents. 2. The facts in brief leading to filing of this petition are that Municipal Corporation, Shimla, published an auction notice for the auction, by way of lease, of a newly constructed "Ice Cream Parlour8 situated near Daulat Singh Park at The Ridge, Shimla, The auction notice clearly stated that the lease period would be three years. Undoubtedly, pursuant to the auction notice, the petitioner was leased the Ice Cream Parlour and the period of such lease was three years. The lease deed was executed on March 31, 1989 and the period of lease commenced from March 1, 1989. It is the admitted case of the petitioner as well as parties that beyond 1992, the lease was never extended. It is also the admitted case of the petitioner that as on the date of passing of the orders, initially by the Collector and later only the Commissioner, the lease deed stood expired. 3. In the aforesaid background, the Collector, exercising the powers in terms of Section 5 of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (hereinafter called 1971 Act) passed an order, inter alia, directing the eviction of the petitioner from the property in question by holding that the petitioner had violated the agreed terms and conditions of the lease deed knowingly and willingly and also by holding that he was an unauthorized occupant of the Ice Cream Parlour which is a public premises belonging to Municipal Corporation, Shimla. The Collector also held that the petitioner had not paid the requisite rent. Ultimately, the Collector came to the conclusion that the petitioner was liable to pay an amount of rupees 5,11,047/-alongwith interest at the rate of 18% till the amount was paid. The Collector also held that the petitioner had not paid the requisite rent. Ultimately, the Collector came to the conclusion that the petitioner was liable to pay an amount of rupees 5,11,047/-alongwith interest at the rate of 18% till the amount was paid. He also held that if the petitioner had deposited any security amount at the time of execution of the lease deed or before taking the possession, this also would stand forfeited in favour of the Corporation. Holding the petitioner ultimately an unauthorized occupant, the Collector ordered that he be evicted from the premises in questions in terms of Section 5 (1) of 1971 Act by May 18,2000. 4. The appeal filed by the petitioner under Section 9 of 1971 Act was heard by the Commissioner who vide order dated May 24, 2002 by agreeing with all the findings of the Collector, dismissed the appeal. 5. Mr. Kuldip Singh Kanwar, learned Senior Counsel appearing for the petitioner has contended before us during the course of hearing of this petition, as the petitioner had contended before the Collector as well as the Commissioner, that the premises in question is not a public premises as defined in Section 2 (e) of 1971 Act. How is the premises in question not a public premises, of course, has not been explained by Mr. Kanwar in the sense that on repeated queries, he did admit that the land over which the structure was built did belong to the Municipal Corporation, Shimla but because the petitioner had built the structure of the Ice Cream Parlour by spending his own money over this land, the property ceased to be a public premises. We do not, at all, agree with the aforesaid contention of Mr. Kanwar for the simple reason that, undoubtedly, the petitioner being a lessee pf the land cannot question the title of the Municipal Corporation and that in any case, the Municipal Corporation, undoubtedly, being the owner of the land (and petitioner having no title whatsoever over the land in question), the premises in question does fall within the definition of the "Public Premises". In the face of the aforesaid clear situation, the petitioner cannot be allowed to Section 116 of the Transfer of Property Act and that, therefore, he has got an "indefinite tenure" over the property in question. 6. During the course of arguments, Mr. In the face of the aforesaid clear situation, the petitioner cannot be allowed to Section 116 of the Transfer of Property Act and that, therefore, he has got an "indefinite tenure" over the property in question. 6. During the course of arguments, Mr. Kanwar also made a half-hearted submission that because of the raising of the construction over the land (as was consented to by the Corporation), the petitioner got an irrevocable licence in respect of the said premises. The argument is being noticed only to be rejected out rightly because under no law can a licensor or a lessee of a property claim an irrevocable licence over the property merely because the lessor or licensor permitted, by consent or by specific permission raising of some structure over the land in question. Whether a lease or a licence is for a fixed tenure or in perpetuity or irrevocable, is to be determined only by a reference to the text of the instrument. In the present case, as noticed earlier, the lease was for a period of three years and at the expiry of three years period, the petitioner ceased to be a lessee of the property in question. 7. Undoubtedly, the property being public premises and also undoubtedly because the petitioner had become an unauthorized occupant, the Collector was justified in ordering the eviction of the petitioner from the public premises and similarly, the Commissioner was also justified in dismissing the appeal. 8. No interference is called for. The petition is dismissed. The respondents shall be at absolute liberty to take all possible steps for the eviction of the petitioner in terms of the specific directions issued by the Collector in his order dated April 19, 2000. The petition is dismissed. CMPs No. 1443/2000 & 782 of 2001 No orders in view of the dismissal of the writ petition.