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2009 DIGILAW 983 (PNJ)

Balwant Rai v. Zila Parishad, Ludhiana

2009-05-20

A.N.JINDAL, UMA NATH SINGH

body2009
JudgmentJudgment A.N.Jindal, J. 1. 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) (laterconverted into shops) on the land in dispute. 2. This is second round of litigation thwarting the efforts of the respondent Zila Parishad (herein referred as respondent) for ousting their 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. 3. 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. 4. 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 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. The agreement was complied with by the parties and the appellant agreed to occupy the shop as licensee for five years at the license 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. 5. Sometime in the year 1989, some of the licensees including the appellant had filed CWP No. 12881 for issuing a direction for quashing the 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. 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 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. 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. 7 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 enhancement of the same by 10% from the previous years 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. 8. 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 aeed as the old license deed is still subsisting between the parties and no enhancement could be made. Further more, it is contended that the appellant is not under any obligation to execute the fresh license aeed 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 tne 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, afresh 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-l), 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. 9. 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 bythe Collector. 10. Arguments heard. Record perused. 11. 10. Arguments heard. Record perused. 11. 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 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. 12. 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. 12. 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 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." 13. No doubt, initially the occupants were inducted as licensees, 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 titled "Gurbax Singh v. Zila Parishad, Ludhiana", CWP No. 12881 of 1989 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 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 14 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?, 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 powers to enhance the license fee. 15 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. 16. 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. 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 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 renewedafter 15.6.86.Insofarasthequestion 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. 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 v. The Financial Commissioner, Punjab, 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 res judicata. 17. 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 annunm after three years. Without commenting over the rate of 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. 18. 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. 19. 18. 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. 19. 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 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.