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2010 DIGILAW 587 (PNJ)

Municipal Council v. Mohan Lal

2010-01-25

RAKESH KUMAR GARG

body2010
Judgment Rakesh Kumar Garg, J. 1. This judgment shall dispose of six appeals bearing No.3614 of 2007, 2547 of 2008 , 2981 of 2008 , 3613, 3617, and 3618 of 2009, as common question of law and fact is involved in all these appeals. For facility of reference, facts are being taken from RSA No.2547 of 2008. As per the averments made in all these cases, the shops in dispute were owned by the plaintiff-respondents and the same were taken by them on rent in an open auction on monthly basis and they were paying the aforesaid monthly rent without any default. However, the plaintiff- respondents in all these cases received memos whereby they were asked to deposit arrears of enhanced rent. The aforesaid notices were duly replied and the plaintiff-respondents kept on making the payment of rent at the old initial rate. Thereafter, the appellant refused to accept the rent and filed petitions for eviction of the plaintiff-respondents under the Haryana public Premises Act, 1972. Another notice was sent by the appellant directing the plaintiff-respondents to pay the rent upto 7th of every month failing which penalty of Rs.50/- per day was to be charged. 2. Aggrieved against the aforesaid action, plaintiff-respondents filed these suits for declaration with consequential relief of permanent injunction to the effect that they were the tenants over the shops in dispute as per the original lease and the enhanced rent has neither ever been settled nor agreed by them and they were not liable to pay the rent of demised shops at the enhanced rate and as such the notices issued by the appellant were illegal and not binding upon them. A prayer for mandatory injunction was also made directing the appellant to accept the rent of the demised shops at the initial rate with consequential relief of permanent injunction restraining the appellant from illegally and forcibly dispossessing the plaintiff-respondents from the suit property except in due course of law. 3. The aforesaid civil suits were resisted by the appellant raising various preliminary objections. On merits, it was admitted that initially the shops were leased out at a monthly rent as submitted by the plaintiff-respondents. However, it was claimed that the rent was increased as per instructions/notifications of the Government of Haryana and, therefore, the appellant has a right to recover the enhanced rent. On merits, it was admitted that initially the shops were leased out at a monthly rent as submitted by the plaintiff-respondents. However, it was claimed that the rent was increased as per instructions/notifications of the Government of Haryana and, therefore, the appellant has a right to recover the enhanced rent. On appraisal of evidence, the trial Court held that a landlord cannot be allowed to unilaterally raise the rent and thereafter recover the arrears thereof. A finding was also recorded that there was no evidence that the plaintiff-respondents ever agreed to pay the enhanced rent. It was asserted that the notifications/instructions issued by the State of Haryana were only executive instructions and not a part of contract between the parties to the dispute; it was held that the appellant was entitled to recover arrears of enhanced rent, after giving an opportunity to the plaintiff-respondents and after following the due process of law. Thus, the suits filed by the plaintiff-respondents were decreed. 4. On re-appraisal of evidence, the lower appellate Court dismissed the appeals filed by the defendant-appellant. Still not satisfied, the appellant has approached this Court through the instant appeals. 5. Mr. SANJAY S. Chauhan, learned counsel appearing on behalf of the appellant has vehemently argued that at the initial stage of letting out of the shops, the plaintiff-respondents were specifically informed that the rent was liable to be increased as per the instructions/notifications, and on the basis of that, the right of the appellant to recover the arrears of increased rent is legal and valid. 6. On the other hand, learned counsel for the plaintiff-respondents have argued that on similar facts wherein a similar question, as raised above, has already been rejected by this Court in the case of Municipal Council, panipat, though its Executive Officer V/s. Kasturi Devi, RSA No.3631 of 2009 decided on 12.10.2009 and in Municipal Council,panipat V/s. Bharat Kumar, RSA no.3894 of 2009 (Oandm) decided on 3.11.2009. The aforesaid factum of dismissal of the aforesaid appeals filed by the appellant against other tenants is not disputed. This finding of fact has been recorded by the Courts below on the ground that there was no evidence to show that the plaintiff-respondents were apprised of the fact that they were liable to pay enhanced rent as per the instructions/notifications of the government. This finding of fact has been recorded by the Courts below on the ground that there was no evidence to show that the plaintiff-respondents were apprised of the fact that they were liable to pay enhanced rent as per the instructions/notifications of the government. It is also not in dispute that the plaintiff-respondents have never consented to increase the rent. Faced with this situation, learned counsel for the appellant has vehemently argued that the Courts below have failed to appreciate that Sec.10 of the Haryana public Premises Rent Act, 1972, clearly lays down that "save as otherwise expressly provided under the Act, every order made by the learned Collector or learned Commissioner under this Act shall be final and shall not be called in question in any conjugal suit, application or execution proceedings and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this set". Therefore, in view of section 10 of the aforesaid Act, the orders passed by the Authorities under the statute in some of the cases, are the final orders and cannot be questioned by filing civil suit and appeal. It has been further argued that the Courts below have failed to appreciate that Sec.15 of the Haryana Public Premises Act, 1972 clearly lays down that "no civil Court shall have jurisdiction to entertain any suit or proceedings in respect of the eviction of any person who is in unauthorized occupation of any public premises on the recovery of the arrears of rent payable under Sub Section (1) of Section 4 or the damages payable under Sub Section (2) of that Section or the cost awarded to the State Government or the Local Authority under Sub Section (5) of section 9 or any portion of such rent, damages or costs", and as such in view of section 15 the orders of the Courts below are without jurisdiction. On the basis of the aforesaid arguments, learned counsel for the appellant has vehemently argued that the following substantial questions of law arise in these appeals:- 1. Whether the present suit is maintainable in violation of RSA no.2547 of 2008 5 section 15 of Haryana Public Premises Act, 1972 ? 2. On the basis of the aforesaid arguments, learned counsel for the appellant has vehemently argued that the following substantial questions of law arise in these appeals:- 1. Whether the present suit is maintainable in violation of RSA no.2547 of 2008 5 section 15 of Haryana Public Premises Act, 1972 ? 2. Whether the judgment and decree passed by the learned Courts below are against the provisions of Section 10 of the Haryana Public Premises Act, 1972 ? 7. The arguments raised by the learned counsel for the appellant are without any merit. From the perusal of the impugned judgment and decrees, I find that the aforesaid objection to the jurisdiction of the civil Court and the finality of the orders passed by the authorities under the Act, was nowhere taken in the pleadings of the parties, neither this argument was raised before the trial Court as well as before the lower appellate Court. The Honble supreme Court in Bachaaj Nahar V/s. Nilima Mandal and another, JT 2008 (13)S. C.255, has observed that no substantial question of law can be raised in the regular Second Appeal based on an argument which was neither raised nor pleaded before the Courts below. Thus, no question of law, much less substantial question of law arises in these appeals. No other point was urged. 8. For the reasons recorded hereinabove, I find no merit in all these appeals and the same are dismissed.