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Rajasthan High Court · body

2012 DIGILAW 1972 (RAJ)

Kailash Chandra Dad v. State of Rajasthan

2012-09-18

SANGEET LODHA

body2012
Judgment 1. These writ petitions involving similar facts and identical issues were heard together and are being disposed of by this common judgment. 2. By way of these writ petitions, the petitioners are questioning legality and propriety of the order dated 3.7.12 passed by the Chief Executive Officer, Zila Parishad, Chittorgarh in each case separately in purported exercise of power conferred under sub-rule(4) of Rule 164 of Rajasthan Panchayati Raj Rules, 1996('the Rules of 1996'), whereby the petitioners have been directed to execute fresh rent agreement within a period of seven days, at the revised rent alleged to have been determined on the basis of the rates determined by Public Works Department, Government of Rajasthan, in respect of rented premises i.e. shops occupied by the petitioners. It is further ordered that if the petitioners fail to execute the agreement and pay the revised rent, the Vikas Adhikari, Panchayat Samiti, Chittorgarh shall ensure that premises are vacated and taken possession of. 3. The respondent no.3-Panchayat Samiti, Chittorgarh, a body corporate having perpetual succession and common seal, established by the State Government by publication of the notification in the Official Gazette under Section 10 of Rajasthan Panchayati Raj Act, 1994('the Act'), issued an advertisement dated 26.4.89 inviting applications to let out certain shops being constructed over the land owned and possessed by it within the municipal area of Chittorgarh. As per the advertisement issued, the shops were to be let out on monthly rent basis. As per the terms and conditions set out in the advertisement, initial rent of the premises was fixed at Rs.500/-, which was liable to be increased after every three years by 20% of original rent. The applicants were required to deposit security amount of Rs.25,000/-, which was refundable, if no allotment is made in favour of the applicant. It was specifically laid down in the advertisement itself that ordinarily the shops shall not be vacated by the Panchayat Samiti, however, on failure of the allottee to abide by the conditions, the same was liable to be vacated on three months notice being served by the Panchayat Samiti. 4. The petitioners being aspirant for allotment of shops submitted the application forms with requisite documents. The petitioners were allotted the shops as per the terms and conditions set out in the advertisement. 4. The petitioners being aspirant for allotment of shops submitted the application forms with requisite documents. The petitioners were allotted the shops as per the terms and conditions set out in the advertisement. Accordingly, an agreement was executed by each of the petitioners in favour of the Panchayat Samiti in respect of shop allotted to him. The shops were allotted to the petitioners in the year 1990 and since then, they are in possession of the premises and carrying on their business therein. It is not in dispute that in terms of agreements executed for leasing out the premises, the petitioners are paying the rent as revised from time to time. 5. The grievance of the petitioners is that while they were carrying on the business in the shops allotted to them, abiding by the terms and conditions set out in the agreement executed, they were served with a notice dated 20.4.12 issued by the Vikas Adhikari, Panchayat Samiti, Chittorgarh, informing them that the Finance & Taxation Establishment Committee of Panchayat Samiti, Chittorgarh in its meeting held on 20.4.12 had taken a decision that the tenants should execute fresh agreement in respect of rented premises as per criteria laid down by Rule 164 of the Rules of 1996. 6. The notice was responded by the petitioners by way of reply thereto, stating that they have not violated any of the terms and conditions of the agreement and therefore, they are not liable to vacate the premises. The petitioners submitted that Rule 164 of the Rules of 1996, in no manner could be applied to the agreement executed in the year 1990 inasmuch as, the Rules framed in the year 1996 do not have retrospective effect. That apart, it was contended that the parties to the agreement are bound by the terms and conditions set out therein; the same cannot be terminated unilaterally and therefore, the petitioners cannot be compelled to execute a new agreement in terms of provisions of Rule 164 of the Rules of 1996. 7. The respondent-Panchayat Samiti being not satisfied with the reply filed on behalf of the petitioners, vide communication dated 7.6.12 requested the Chief Executive Officer, Zila Parishad, Chittorgarh to get the premises vacated inasmuch as, the petitioners failed to execute new rent agreement in terms of provisions of Rule 164 of the Rules of 1996 within the stipulated period. 8. 7. The respondent-Panchayat Samiti being not satisfied with the reply filed on behalf of the petitioners, vide communication dated 7.6.12 requested the Chief Executive Officer, Zila Parishad, Chittorgarh to get the premises vacated inasmuch as, the petitioners failed to execute new rent agreement in terms of provisions of Rule 164 of the Rules of 1996 within the stipulated period. 8. The petitioners were served with the notice dated 18.6.12 issued by the Chief Executive Officer, Zila Parishad, Chittorgarh in purported exercise of the power conferred under Rule 164(4) of the Rules of 1996, informing that the petitioners having failed to execute the agreement in terms of Rule 164 of the Rules, are legally not entitled to occupy the shops in question. They were directed to appear before the said authority on the date specified i.e. 22.6.12, to show cause as to why they may not be evicted from the premises in question. 9. The notice dated 18.6.12 was also responded to by the petitioners by way of reply dated 22.6.12 reiterating the stand taken in reply to the earlier notice issued by the Vikas Adhikari and prayed for dropping the proceedings initiated. 10. The Chief Executive Officer while deciding the application made by the respondent-Panchayat Samiti as aforesaid, vide order dated 3.7.12 directed the Vikas Adhikari, to make available the petitioners herein, the draft agreement to be executed and apprise them about the rate of rent determined by Public Works Department. It was further ordered that if the petitioners fail to execute the agreement within a period of one week and fail to deposit the revised rent, the said authority shall ensure that the shops are vacated and taken possession of. Accordingly, a notice dated 6/7.7.12 was issued by the Vikas Adhikari, Panchayat Samiti, Chittorgarh to each of the petitioners to execute the fresh rent agreement within a period of seven days, on the revised rent assessed by the competent officer of Public Works Department. They were further directed that if they fail to execute the agreement within the stipulated period, they should hand over vacant possession of the shops. 11. They were further directed that if they fail to execute the agreement within the stipulated period, they should hand over vacant possession of the shops. 11. In Writ Petition No.7126/12, this court on 13.7.12, while issuing show cause notice to the respondents, passed an interim order in favour of the petitioner therein in the following terms: “In the meanwhile and until the next date, the petitioner shall not be dispossessed from the premises in question pursuant to the notice dated 07.07.2012(Annex.6)” 12. Similar interim order was passed by this court on 23.7.12 in other writ petitions as well. However, on 22.7.12 i.e. on Sunday, the authorities of the respondent-Panchayat Samiti deprived the petitioners from the use of the premises by putting their locks on the petitioners' locks over the shops in question except the shop occupied by the petitioner in the writ petition No.7126/12. 13. Learned counsel for the petitioners contended that the petitioners are in occupation of the premises since 1990 and they have not violated any of the terms and conditions of the agreement executed between the parties and therefore, the order impugned passed by the respondent no.2 in the garb of Rule 164 of the Rules 1996 is ex facie illegal, arbitrary and without jurisdiction. Learned counsel submitted that Rule 164 could be applied only to the premises let out by the Panchayati Raj Institution after coming into force of the Rules of 1996 and the existing tenancy as on the date of commencement of the Rules shall be governed by the agreement already executed. Learned counsel submitted that as a matter of fact Rule 164 of the Rules of 1996, shall apply only to the premises of the Panchayat Samiti located in its local area and not to the premises situated outside the local area. Learned counsel would submit that indisputably, the shops in question fall within the municipal area of Chittorgarh and therefore, the matter with regard to the revision of rent and eviction in respect of the premises in question shall be governed by the provisions of Rajasthan Rent Control Act, 2001 ('Act of 2001') and therefore, the tenant in occupation cannot be evicted except on the grounds available and in accordance with the procedure laid down, under the provisions of Act of 2001. Learned counsel submitted that even the rent of the premises cannot be enhanced beyond the limit permissible under the provisions of Section 6 of the Act of 2001. Learned counsel submitted that in any case, when the premises have not been let out to the petitioners in terms of Rule 164 of the Rules of 1996, the provisions incorporated therein for enhancement of the rent and eviction in case of violation of the terms and conditions of the agreement, cannot operate against the rights accrued to the petitioners in terms of the agreement executed between the parties. Learned counsel submitted that the petitioners are occupying the premises as tenant and therefore, they cannot be deprived of the peaceful possession of the property without authority of law. Learned counsel submitted that even after the tenancy of the petitioners being terminated in accordance with law and they being treated to be unauthorised occupants over the premises in question, they cannot be evicted from the premises except in accordance with the procedure laid down under the provisions of Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1950. Accordingly, it is submitted that viewed from any angle, the order impugned deserves to be quashed and set aside. 14. Learned counsel further urged that the respondents are acting in most perfunctory manner inasmuch as, they having come to know about the interim order dated 13.7.12, passed by this court in one case and filing of the writ petitions by similarly situated tenants, which were listed before the court for appropriate orders on 23.7.12, over reaching the process of the court, proceeded to put a lock over the shops of the respective petitioners and thus deprived them from carrying on their business. Learned counsel submitted that the public authority is not free to dispossess person in possession of property otherwise than in due course of law. In this regard, learned counsel has relied upon a decision of this court in the matter of “M/s. Chandra & Co. v. State of Rajasthan, AIR 1981 (Raj.) 217 . Learned counsel submitted that looking to the conduct of the respondent authorities and high handed action taken by them in depriving the petitioners from carrying on their business in unlawful manner, they deserve to be awarded exemplary cost. 15. v. State of Rajasthan, AIR 1981 (Raj.) 217 . Learned counsel submitted that looking to the conduct of the respondent authorities and high handed action taken by them in depriving the petitioners from carrying on their business in unlawful manner, they deserve to be awarded exemplary cost. 15. On the other hand, learned counsel appearing for the respondents submitted that after framing of the Rules, the matter with regard to letting out of the Panchayati Raj Buildings and Shops, shall be governed by provisions of Rule 164 of the Rules of 1996. It is submitted that as per sub-rule(1), the buildings of Panchayati Raj Institution could be let out on the rent not less than the rates assessed by the Public Works Department. It is submitted that the shops and other commercial sites could be let out only through open auction by the committee consisting of three members as specified by sub-rule(2) of the Rules of 1996 for a period not exceeding more than three years and the rent of the premises is liable to be increased by 10% every year and therefore, the action of the respondent-Panchayat Samiti in directing the petitioners to execute fresh agreement in terms of Rule 164 with the enhanced rate of rent as assessed by Public Works Department cannot be faulted with. Learned counsel submitted that the application of provisions of Rule 164 of the Rules of 1996 is not restricted to the premises to be let out after the commencement of the Rules rather, it applies to all Buildings and Shops of the Panchayati Raj Institution, let out before or after the commencement of the Rules of 1996. Learned counsel submitted that the respondents having failed to execute the agreement within the stipulated period in the format already supplied, the action of the Chief Executive Officer in passing the order of eviction, on their failing to execute the agreement and pay the revised rent is absolutely in accordance with law. Learned counsel submitted that by virtue of provisions of Section 3 read with Section 18 of the Act of 2001, the provisions of the Act of 2001 are not applicable to the dispute in respect of the premises in question owned by a Panchayati Raj Institution. Learned counsel submitted that by virtue of provisions of Section 3 read with Section 18 of the Act of 2001, the provisions of the Act of 2001 are not applicable to the dispute in respect of the premises in question owned by a Panchayati Raj Institution. However, it is not disputed by the learned counsel that by virtue of provisions of clause 2(b), the premises in question being public premises, the provisions of Act of 1964 regarding the recovery of rent and eviction of unauthorised occupants are applicable to them, however, according to the learned counsel the Chief Executive Officer is empowered to straight away take the proceedings for eviction of the tenants in terms of Rule 164(4) of the Rules of 1996, in case of violation of terms of the agreement or failure to deposit the rent determined. Learned counsel submitted that since no interim order passed by this court was operative in respect of the petitioners herein except in respect of the petitioner in Writ Petition No.7126/12, therefore, the action taken by the respondent authorities for taking possession of the shops in question in execution of the order impugned, cannot be concluded to be an action taken by over reaching the process of the court. 16. I have considered the rival submissions and perused the material on record. 17. The controversy involved in these writ petitions rolls round the provisions of Rule 164 of the Rules of 1996, which may be beneficially quoted:- “Rule 164. Letting out of Panchayati Raj Buildings and Shops.-(1) Any Panchayati Raj Institution may let out their buildings to government offices, bank, post office etc. on rent not less than the rates assessed by the competent officer of Public Works Department. (2) Shops and other commercial sites be leased out for not more than three years and only through open auction by Committee consisting of 3 members as under:- (a) Chief Executive Officer, Accounts Officer and one Member of Zila Parishad nominated by Pramukh for buildings of Zila Parishad. (b) Vikas Adhikari, Accountant and one Member of Panchayat Samiti nominated by Pradhan for immovable properties of Panchayat Samiti. (c) Committee as per Rule 151 at the Panchayat level. (3) The agreements for leasing out such premises on rent shall include the condition of 10% increase of rental amount every year. (b) Vikas Adhikari, Accountant and one Member of Panchayat Samiti nominated by Pradhan for immovable properties of Panchayat Samiti. (c) Committee as per Rule 151 at the Panchayat level. (3) The agreements for leasing out such premises on rent shall include the condition of 10% increase of rental amount every year. (4) In case the premises are not vacated after three years time limit, or it is sub-let to come other persons to violation of terms of agreement or rent is not deposited regularly, Chief Executive Officer shall get the premises vacated after giving Show Cause Notice for eviction of premises, if requested by the concerned Panchayat or Panchayat Samiti. (5) Panchayat and Panchayat Samiti may also negotiate the matter for extending the terms of the three years, but in such case yearly increase in rent shall be 20% amount every year by mutual agreement.” 18. Indisputably, as per the advertisement issued, the shops in question were to be allotted to the applicants on monthly rent of Rs.500/-with the condition for enhancement @ 20%, after every three years, which was to be treated additional rent to be computed on the basic rent Rs.500/-. It was also a condition incorporated specifically that ordinarily the premises shall not be vacated by the Panchayat Samiti, however, in case of violation of any of the conditions by the allottee, the premises was liable to be vacated by Panchayat Samiti, after giving three months' notice. It is a common ground between the parties that the agreement between parties was executed in terms of the advertisement issued and the petitioners have not violated any of the conditions of the agreement. Thus, even according to the respondents, in absence of any breach of conditions of the agreement, but for the provisions of Rule 164 of the Rules of 1996, ordinarily, the premises in question are not liable to be vacated. 19. Thus, even according to the respondents, in absence of any breach of conditions of the agreement, but for the provisions of Rule 164 of the Rules of 1996, ordinarily, the premises in question are not liable to be vacated. 19. It is not disputed before this court that prior to framing of the Rules of 1996, there was no provision incorporated in the Act or the Rules made thereunder in force at the relevant time, governing the letting out of the Buildings and Shops belonging to the Panchayat Samiti and thus, the matter with regard to letting out of the premises was to be governed by the agreement arrived at between the parties and the matter with regard to eviction of the unauthorised occupants over the public premises was to be dealt with in accordance with the procedure laid down under the Act of 1964. 20. It is to be noticed that Sub-rule (1) of Rule 164, makes the provision that any Panchayati Raj Institution may let out their buildings to government offices, bank, post office etc. on rent not less than the rent assessed by the competent officer or Public Works Department. Sub-rule(2) of Rule 164, puts a restriction on leasing out the shops and other commercial sites of Panchayati Raj Institutions for a period exceeding three years. A conjoint reading of Sub-rule (1) & (2) of Rule 164 makes it abundantly clear that said provision cannot militate against the premises already let out on the agreed terms and conditions prior to coming into force of the provisions of Rule 164 of the Rules of 1996 and could be applied only in respect of the premises to be let out after commencement of the Rules. For the parity of reasons, sub-rule(3) providing for incorporation of condition of increase in rent in the agreement for leasing out refers to the premises to be let out in terms of Rule 164 of the Rules of 1996 and not to the premises already let out on the terms and conditions notified at the relevant time. In this view of the matter, in considered opinion of this court, the order impugned passed by the Chief Executive Officer in purported exercise of the power conferred by Rule 164 of the Rules of 1996 is ex facie without jurisdiction and not sustainable in the eyes of law. 21. In this view of the matter, in considered opinion of this court, the order impugned passed by the Chief Executive Officer in purported exercise of the power conferred by Rule 164 of the Rules of 1996 is ex facie without jurisdiction and not sustainable in the eyes of law. 21. Coming to the contention of the learned counsel for the petitioners that the shops in question being situated within the municipal limit of Municipal Board, Chittorgarh, the matter with regard to the enhancement of rent and eviction could only be dealt with in accordance with the provisions of Act of 2001, this court is of the opinion that the contentions raised by learned counsel for the petitioners in this regard are devoid of any merit. It is to be noticed that by virtue of provisions of Section 3 of the Act of 2001, the provisions of Chapter II and III of the Act of 2001 are not applicable to the premises belonging to or let out by a local authority. It is true that by virtue of Section 18(1) of the Act of 2001, the areas to which the Act of 2001 extends only the Rent Tribunal and no civil courts have jurisdiction to decide the petition relating to disputes between landlord and tenants and the matters connected therewith and ancillary thereto filed under the provisions of the Act and as per the First proviso attached thereto, in deciding such petitions to which provisions contained in Chapter II & III apply shall be decided by the Rent Tribunal having due regard to the provisions of Indian Contract Act, 1872 or any other substantive law applicable to such matter in the same manner in which such law would have been applied had the dispute been brought before a civil court by way of suit. But then, Second proviso to sub-section (1) of Section 18 specifically provides that nothing contained in the Act of 2001 shall be deemed to empower the Rent Tribunal to entertain a petition involving such dispute between the landlord and tenant to which provisions of Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964('the Act of 1964') and Rajasthan Premises (Requisition & Eviction) Ordinance, 1949 apply. In this view of the matter, a conjoint reading of provisions of Section 3 read with Section 18 makes it abundantly clear that the matter with regard to the dispute between landlord and tenant in respect of the public premises to which the Act of 1964 applies cannot be entertained by the Rent Tribunal. It is pertinent to note that by virtue of Section 2(b)(v) of the Act of 1964, premises belonging to Panchayat Samiti and Zila Parishad established under the Rajasthan Panchayat Samiti & Zila Parishad Act, 1959 (since repealed and substituted by Act of 1994) are specifically included within the definition of Public Premises. Section 4 & 5 of the Act of 1964 prescribes the procedure for eviction of unauthorised occupants over the public premises and Section 7 makes specific provision for the recovery of rent or damages in respect of the public premises as arrears of land and revenue. That apart, Section 10A of the Act of 1964 specifically bars the jurisdiction of the civil court to entertain any suit or proceedings in respect of eviction of any person who is in unauthorised occupation of public premises or recovery of the rent/damages payable. Thus, this court is firmly of the opinion that the provisions of the Act of 2001 are not applicable to the dispute between the parties in respect of the public premises in question belonging to the respondent-Panchayat Samiti, which are let out to the petitioners. 22. At the same time, the discussion above makes it abundantly clear that the petitioners who are inducted as tenants over the public premises cannot be considered to be unauthorised occupants unless their tenancy is terminated in accordance with law. Needless to say that even after valid termination of tenancy, the eviction of the petitioners as an unauthorised occupants over the public premises has to be dealt with in accordance with the procedure laid down under the Act of 1964 and they cannot be evicted from the premises summarily by resorting to the provisions of sub-rule(4) of Rule 164 of the Rules of 1996. Thus, the action of the respondent-Chief Executive Officer, who is also Estate Officer in respect of public premises belonging to Village Panchayats, Panchayat Samities and Zila Parishad, in directing eviction of the petitioners from the premises let out to them in perfunctory manner, without valid termination of tenancy treating them to be unauthorised occupants, by-passing the procedure provided under the relevant Statute cannot but deemed to be illegal, arbitrary and without jurisdiction. 23. Coming to the action of the respondents in putting lock over the shops in question and depriving the petitioners from the use thereof, indisputably, an interim order passed staying the dispossession in one of the writ petition was well within the knowledge of the respondent and therefore, as a responsible public officer in view of the interim order passed by the court in an identical matter, in all fairness, the respondent authorities should have refrained from taking any action depriving the petitioners from the use of the premises more so, when they were knowing fully well that the writ petitions preferred by other petitioners were listed before the court for consideration on the next day i.e. 23.7.12. There is no justifiable reason as to why the possession was sought to be taken by the respondents in hot haste manner on sunday, the day on which all the government offices remain closed. Suffice it to say that the conduct of the respondents in taking the stand that the possession had already been taken before passing the interim order by this court is not appreciated. The respondent, public authority must respect the process issued by the court and the order passed in its true spirit. A fortiori, the petitioners could not have been deprived of the use of the premises without following the procedure laid down under the provisions of the Act of 1964. Thus, in considered opinion of this court, the petitioners, who have been deprived of use of the premises and from carrying on their business on account of high handed action on the part of the respondent authorities, deserves to be compensated by payment of cost. 24. For the aforementioned reasons, the writ petitions succeed, the same are hereby allowed. The orders dated 3.7.12 passed by the Chief Executive Officer , Zila Parishad, Chittorgarh and notice issued pursuant thereto by Vikas Adhikari, Panchayat Samiti, Chittorgarh impugned in these writ petitions are quashed. 24. For the aforementioned reasons, the writ petitions succeed, the same are hereby allowed. The orders dated 3.7.12 passed by the Chief Executive Officer , Zila Parishad, Chittorgarh and notice issued pursuant thereto by Vikas Adhikari, Panchayat Samiti, Chittorgarh impugned in these writ petitions are quashed. The respondents are directed to remove the lock put by them on the shops let out to the petitioners and put them in possession thereof forthwith. However, it is made clear that this order shall not preclude the respondent-Panchayat Samiti from terminating the tenancy of the petitioners and taking action for their eviction from the premises in question in accordance with law. Each of the petitioners except the petitioner in writ petition No.7126/12, shall be entitled for cost quantified at Rs.5,000/-from the respondent no.3-Panchayat Samiti, Chittorgarh.