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2006 DIGILAW 2360 (PNJ)

Bhakra Beas Management Board v. Estate Officer

2006-05-29

ASHUTOSH MOHUNTA, MAHESH GROVER

body2006
JUDGMENT Mahesh Grover, J. - The petitioners have filed this petition with a prayer to quash the orders dated 22.5.2003 and 20.7.2004 by which their prayer seeking to evict the respondent No. 3 from the premises in question had been declined by the competent authority under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act). 2. The case of the petitioners, in brief, is that some land was leased out to M/s Shivalik Talkies Pvt. Limited, Nangal Township-respondent No. 3 which was renewed lastly on 30.6.1988 for a period of 20 years commencing from 10.1.1975 to 9.1.1995. During the subsistence of this lease, the respondent No. 3 started raising constructions of boundary wall, shops, booths, etc. in an unauthorised manner. When this fact came to the notice of petitioners, notice dated 31.10.1988 was issued to respondent No. 3 to stop raising the illegal construction and to hand over the vacant possession of the premises to the petitioners. On 24.11.1988 another notice was issued to respondent No. 3 to remove the encroachments and to demolish the unauthorised constructions. Since nothing was done, the petitioners thereafter put an end to the lease agreement and cancelled the same vide orders dated 28.11.1998. Thereafter, the proceedings against the respondent No. 3 were initiated under the provisions of the Act. 3. While the proceedings under the aforesaid Act were continuing, the respondent No. 3 filed a civil suit bearing No. 390 dated 14.12.1998. The proceedings before the Civil Court remained pending till 16.8.1996 when the Addl. Civil Judge (Sr. Division), Anandpur Sahib dismissed the suit of the respondent No. 3. The appeal preferred against the judgment was also dismissed on 7.6.2001. No further appeal was filed and the judgments of the civil Court, therefore, attained finality. The proceedings under the Act thereafter commenced and the Estate Officer vide his order dated 22.5.2003 held that the respondent No. 3 had actually raised the constructions in an unauthorised manner and while disposing of the case gave the following directions : "(i) Evict the respondents M/s Shivalik Talkies (P) Ltd. from the encroached area mesuring 5928 sft. (marked A) as, well as from 1831.5 sft. (marked B) on which 10 shops have been constructed and direct the respondents to give control of these areas immediately in favour of plaintiff i.e. BBMB. (marked A) as, well as from 1831.5 sft. (marked B) on which 10 shops have been constructed and direct the respondents to give control of these areas immediately in favour of plaintiff i.e. BBMB. (ii) Direct the respondents to pay the damages to the plaintiff for the encroached area measuring 5929 sft. (marked A) w.e.f. 28.10.1988, the date it was encroached upon, till the date of actual vacation at twice the proportional lease rate worked out for 5928 sq.ft. with respect to the lease being charged for the whole plot (41600 sft.) from time to time. (iii) Direct the department to regularise the lease of the balance area (marked yellow on the site plan) with M/s Shivalik Talkies (P) Ltd. Nangal with retrospective effect till the date of publication of this judgment and may renew the same for a further period and on terms and conditions as mutually agreed upon between the two parties. (iv) Direct the department to enter into fresh lease agreement with the recent occupants (if any), doing the business of running of shops for their own livelihood on the 10 shops constructed on the marked B on the site plan in accordance with BBMB policy as announced on 30.10.1995 or any other policy framed in future and made applicable to whole of the Nangal Township. However, the department is free to approach this Court afresh for the eviction of such occupants (if any) under PP Act who are not doing the business of running those shops and those who are running the shops but are not ready to accept the terms and conditions of the new policy after it has been duly and compressively communicated and offered to them and are unwilling to enter into lease agreements within a reasonable time frame." 4. Appeal against the said order was also dismissed by the Addl. District Judge, Rup Nagar on 20.7.2004 and the directions which were given by the Estate Officer in his order dated 22.5.2003 were upheld. The case of the petitioners is that once the Estate Officer had come to the conclusion that the respondent No. 3 had unauthorisedly raised the constructions and he was in illegal occupation of the land in question, he ought to have ordered the eviction but instead he went on to direct the petitioners to regularise the lease and to execute fresh lease agreement with the respondent No. 3. The Estate Officer had no authority under the law to give such directions. 5. The respondent No. 3, on the other hand, pleaded that, there were instructions dated 30.10.1995 by which the petitioners could execute fresh lease and unauthorised constructions could be regularised. According to him, the Estate Officer had only given effect to these instructions and, therefore, there was no infirmity, in the orders of the competent authority under the Act. 6. We have heard the learned counsel for the parties and are of the view that the Estate Officer clearly acted beyond his jurisdiction in giving the directions to regularise the unauthorised constructions and by giving directions to execute fresh lease deed to the petitioners. He clearly ignored the fact that the lease in favour of the respondent No. 3 had been terminated in the year 1988 itself and he, therefore, had no right to continue on the land in question after the cancellation of the lease deed. Instead of vacating the land, the respondent No. 3 had raised unauthorised constructions. The fact of raising unauthorised constructions was admitted by respondent No. 3 before the Estate Officer himself. In view of these overwhelming facts, the Estate Officer had no option but to order eviction of the respondent No. 3 from the entire land in question. However, this was not done and he proceeded to give directions which were clearly beyond the scope of his powers. The directions were also contradictory to the findings recorded by the Estate Officer qua the unauthorised possession of the respondent No. 3. The appellate authority also committed the same error and, therefore, both the impugned orders cannot be sustained in the eyes of law and are directed to be quashed. 7. It was then contended by the learned counsel for the respondent No. 3 that the constructions could be regularised in view of the instructions dated 30.10.1995. We are afraid the benefit of these instructions cannot he given to the petitioners for two reasons, firstly, as this point was never raised by the respondent No. 3 before the courts below; and secondly, the lease agreement stood cancelled in the year 1988 itself. The respondent No. 3 had no right to continue on the land in question and he became unauthorised occupant thereof. He had admitted the factum of raising constructions illegally. The respondent No. 3 had no right to continue on the land in question and he became unauthorised occupant thereof. He had admitted the factum of raising constructions illegally. There was thus no question of affording the benefit of instructions which came into existence on 30.10.1995. In view of what has been stated above, we allow the writ petition and quash the impugned orders dated 22.5.2003 and 20.7.2004. Since the respondent No. 3 has been in unauthorised occupation since 1988, he is directed to hand over possession of the area in question within three months from today i.e., on or before 1.9.2006. Petition allowed.