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2013 DIGILAW 158 (PNJ)

Bimal Roy v. State of Punjab

2013-02-08

Rajiv Narain Raina

body2013
JUDGMENT Mr. Rajiv Narain Raina, J.:- The Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (for short “the Act”) is a special Act dealing with the specific problem of taking speedy action against unauthorized occupants of Public Premises. It provides a machinery for eviction of persons of unauthorized occupation of Public Premises and certain matters incidental thereto. The scope and object of the Act is different from that of local rent laws. The protections afforded by one are not available under the other. In the matter of eviction and recovery of rent in respect of public premises the Act ousts the jurisdiction of rent laws by operation of Section 15 of the Act. The proceedings under the Act are summary in nature. Rent in relation to any public premises, means the consideration payable periodically for the authorized occupation of the premises in terms of Section 2(g) of the Act. Section 3 of the Act deals with the unauthorized occupation of Public Premises. The said provisions read as follows: “3. Unauthorised occupation of public premises.— For the purposes of this Act, a person shall be deemed to be in unauthorised occupation of any public premises- (a) Where he has, whether before or after the commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant; or (b) Where he, being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises; or (c) Where any person authorised to occupy any public premises has, whether before or after the commencement of this Act,— (i) sub-let, in contravention of the terms of allotment, lease or grant, without the permission of the State Government or of any other authority competent to permit such subletting, the whole or any part of such public premises, or (ii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such public premises.” 2. Section 4 of the Act enables the Collector of the District if he is of opinion that any person is in unauthorized occupation of any public premises situated within his jurisdiction that he should be evicted, the Collector shall issue a notice to show cause against order of eviction by stating reasons in writing for doing so. On receipt of objections or reply from a person under notice, if the same is found to be not satisfactory considering the cause shown by a person in his defence under Section 4, he may if he is satisfied that the public premises are in unauthorized occupation may make an order of eviction for reasons to be recorded therein, directing that the public premises shall be vacated. Unlike under rent laws where there may be provision of fixing fair rent, the Act has no mechanism to fix market rent. The admitted rent is recoverable as damages in respect of public premises as arrears of land revenue under Section 7 of the Act. There is no authority vested in the collector to fix market value or to increase rent unless the original rent deed/lease deed executed between a tenant and the owner of public premises permits increase. 3. An appeal is provided under Section 9 of the Act against every order of the Collector made in respect of any Public Premises under Section 5 or Section 7 of the Act to the Commissioner within 30 days of the publication of the order under Section 5 or within 30 days from the date from which an order under Section 7 is communicated to the appellant. 4. The challenge in this petition filed under Articles 226 and 227 of the Constitution of India is to an impugned order dated 22.7.2010 (P-12) passed by the Sub Divisional Magistrate-cum-Collector, Kharar evicting the petitioner from a Godown/Warehouse owned by the respondent Market Committee, Kurali and ordering recovery of Rs 1,85,819/- as damages for unauthorized possession of the premises. 5. Aggrieved by the order of the Collector, the petitioner preferred an appeal to the Deputy Commissioner, S.A.S. Nagar, Mohali exercising the powers of the Commissioner under the Act. The appeal under Section 9 of the Act has been dismissed by the impugned order dated 21.6.2011 against which the present writ petition has been filed. 6. In the above background, the facts of this case may now be adverted to. The appeal under Section 9 of the Act has been dismissed by the impugned order dated 21.6.2011 against which the present writ petition has been filed. 6. In the above background, the facts of this case may now be adverted to. The petitioner entered into an agreement dated 1.9.1983 with the Market Committee, Kurali which reads as follows: “Agreement I Bimal Roy s/o Sh. Madan Gopal Proprietor M/s Bimal Roy Kurali has taken the Godown No.1 of Market Committee Kurali on rent @ Rs.75/- per Month from 1/9/83, the Terms of this are as below:- 1. I promise that advance rent for each month will be paid before 5th of each month. 2. I promise that I will not keep the jaggery in the godown. I promise that if I violate any of the above condition what ever decision will be taken or fine will be imposed by the Market Committee Kurali I will be responsible for the payment of fine.” 7. On the strength of this agreement, the petitioner entered possession of the demised premises to use as a Godown on rent of Rs 75/- per month from 1.9.1983 onwards. The petitioner promised in the agreement that advance rent for each month will be paid before the 5th of each month. The agreement is not disputed or that it is bipartite. It is also not disputed that the rent was enhanced voluntarily from Rs 75/- per month to Rs 150/- per month on 1.12.1994. On 12.10.2001, the Executive Engineer of the Punjab Mandi Board assessed the market rent of the godown at Rs 1600/- per month. The petitioner was not associated with this assessment. It is not disputed that no fresh agreement/rent note/lease deed was executed between the parties for payment of rent at the rate of Rs 1600/- per month. As the Market Committee, Kurali, was insisting that the petitioner should pay the enhanced rent as assessed, he filed a Civil Suit No.RT-800/1.6.2002- 6.4.2004 for permanent injunction against the Market Committee, Kurali, before the Additional Civil Judge (Sr. Division) Ropar, restraining the defendant-Market Committee from interfering in the peaceful possession of the rented property. The suit was decreed on 9.2.2005. As the Market Committee, Kurali, was insisting that the petitioner should pay the enhanced rent as assessed, he filed a Civil Suit No.RT-800/1.6.2002- 6.4.2004 for permanent injunction against the Market Committee, Kurali, before the Additional Civil Judge (Sr. Division) Ropar, restraining the defendant-Market Committee from interfering in the peaceful possession of the rented property. The suit was decreed on 9.2.2005. The decree was passed to the following effect: “It is hereby ordered that since the plaintiff is in the possession of the disputed godown, therefore, the plaintiff is entitled to protect for possession over the disputed godown, but subject to payment of electricity charges and any exaggeration on the part of the defendant in that context then certainly requires restraint the defendant hence is restrained from interfering in the possession of the disputed godown, except in due course of law. Suit of the plaintiff stands accordingly be decreed with no orders as to costs.” 8. It may be apposite to note that rent at the rate of Rs 150/- stood deposited upto March 2002 and it is only after the Market Committee, Kurali stopped accepting rent that compelled the petitioner to bring suit. 9. The present controversy starts on 2.12.2009 when the Market Committee, Kurali filed a petition under Sections 3,4,5 and 7 of the Act for eviction of the petitioner from the godown and for recovery of pending dues. Inter alia, it was pleaded that the assessment made by the Punjab Mandi Board at the rate of Rs 1600/- per month was not being paid and therefore, the petitioner was a defaulter in payment of rent. The assessment made by the Punjab Mandi Board through its Executive Engineer also contained a unilateral condition that the rent of Rs 1600/- per month would suffer increase of 5% every year in terms of the revised new assessment which would remain valid for five years w.e.f. 12.10.2001. The Market Committee, Kurali, had written many letters to the petitioner to execute fresh agreement but the agreement did not materialize because the petitioner did not come forward to sign the unilateral agreement. 10. The reasons given in the appellate order for rejecting the appeal are as follows: “But despite writing so many letters, did not do agreement with Market Committee Kurali. 10. The reasons given in the appellate order for rejecting the appeal are as follows: “But despite writing so many letters, did not do agreement with Market Committee Kurali. From this it is clear that from the time Punjab Mandi Board did the new assessment of rent of godown, the rent from appellant Bimal Rai need to be recovered from that time as per law. The non payment of this increased rent by appellant party to Market Committee Kurali means that appellant is in the wrongful possession of this godown. Both the sides agree that current appellant Bimal Rai is a renter and market committee Kurali is the owner of this land. Why the rent of this godown was increased from Rs 75/- to Rs 150/- and no objection was raised by appellant. But now when new assessment of this plot regarding rent is being done, the appellant parties are reluctant from doing an agreement. This clearly shows that appellant party is in the wrongful possession of this godown where owner is the market committee Kurali.” 11. The correctness of this finding has been subject matter of the debate before this Court in the present petition. The Market Committee, Kurali, has filed his written statement repeating its pleas in defence of eviction taken before the two authorities below. 12. I have heard learned counsel for the parties at considerable length and have read the record and the impugned orders. 13. The reasoning adopted by the Appellate Authority in rejecting the appeal is neither based on logic nor legally acceptable reasoning. If the petitioner agreed to increase the rent from Rs 75/- to Rs 150/- on his own volition without objection and the new rent was acted upon by both the parties, it would not mean that an assessment made by the Executive Engineer of the Punjab Mandi Board in 2001 can be foisted on the petitioner unilaterally. Rent is a matter of agreement or consent between parties. It can be varied or enhanced bilaterally only by novation of the old contract or agreement by executing a new one. Merely because the petitioner agreed to increase in rent from Rs 75/- to Rs 150/- per month would not operate as waiver of right to object against arbitrary fixation of Rs 1600/- per month as rent unilaterally without consent. No one can be compelled to sign a fresh agreement. Merely because the petitioner agreed to increase in rent from Rs 75/- to Rs 150/- per month would not operate as waiver of right to object against arbitrary fixation of Rs 1600/- per month as rent unilaterally without consent. No one can be compelled to sign a fresh agreement. Non signing of such document may result in litigation in a competent Court of jurisdiction. If the Market Committee, Kurali, thought the rent was insufficient, it was free to seek eviction of the tenant or recovery of possession of the premises through other legal means but resort could not be had to the provisions of the Act which provide no statutory mechanism for fixing or re-fixing market rent. It cannot be disputed that the entry of the petitioner into the premises was legal and valid. He cannot by any stretch of imagination be taken as an unauthorized occupant in unauthorized possession of public premises. The Act is designed only to evict unauthorized occupants of public premises. Whether the rent is Rs 150/- or Rs 1600/- per month, the tenant in this case would continue to be in authorized possession and the proceedings impugned in this petition and the orders passed are clearly without jurisdiction. Though it may seem strange that a large godown would earn only Rs 150/- rent per month in this day an age as a consequence of setting aside the impugned orders but the Market Committee, Kurali and its officials and the legal advise sought and the opinion given are to be blamed. Though I have no doubt in my mind that the current rental value of the godown must be sizeable but this Court has been called upon to examine in this case only the correctness of the orders passed under the Act, and for the foregoing reasons, I have no option but to set aside the impugned orders being patently illegal and without jurisdiction. It is not possible on the facts of this case to return a finding that the petitioner is an authorized occupant in unlawful possession of the disputed premises. The rent agreement of 1983 subsists and protects the petitioner, strange as it may seem for a paltry rent. The method of eviction adopted is not in consonance with law. 14. It is not possible on the facts of this case to return a finding that the petitioner is an authorized occupant in unlawful possession of the disputed premises. The rent agreement of 1983 subsists and protects the petitioner, strange as it may seem for a paltry rent. The method of eviction adopted is not in consonance with law. 14. Consequently, the writ petition is allowed and the impugned orders dated 22.7.2010 (P-12) and 21.6.2011 (P-14) are hereby set aside, leaving the parties to bear their own costs. ---------0.B.S.0------------