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2013 DIGILAW 509 (PNJ)

Ravinder Kumar v. Deputy Commissioner, Muktsar

2013-04-22

RAJIV NARAIN RAINA

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JUDGMENT RAJIV NARAIN RAINA, J. The effort of the Municipal Council, Muktsar, to evict the petitioners under Sections 4, 5 and 7 of the Punjab Public Premises and Land (Eviction & Rent Recovery) Act, 1973, (in short 'the Act') from the disputed shop in their possession, failed in the first round of litigation ending before this Court. The brief facts of the first round of litigation are that the Municipal Council, Muktsar sought eviction of petitioner No.2 under the Act by preferring an application for eviction dated 03.02.1986 under the provisions of the Act. The application was allowed ex parte by the Collector, Ferozepur, vide order dated 23.04.1986. Aggrieved against the said ex parte order, petitioner No.2 filled an appeal before the Commissioner, Ferozepur Division, Ferozepur. The learned Commissioner vide his order dated 14.12.1987 held in favour of the petitioners, the operative part of which reads as follows:- “3. I have taken into consideration the arguments advanced on behalf of the parties and have also perused the record of the case. The application for eviction the appellant under the provisions of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 from the premises in dispute was filed by the Municipal Committee before Collector on 4.2.86. By that time, AC-I Muktsar, had decided the contested Mutation No.4351 whereby he had held that the Municipal Committee was not the owner of the premises in dispute. The AC 1 has further held vide his order dated 18.12.84 that the land in dispute has remained in continuous and uninterrupted possession of the Deputy Commissioner since 1917-18. The parties have admitted that no appeal/revision has been filed against the order of the ACI-I and that being the position the Municipal Committee has no locus standi to file the application before the Collector. In view of the foregoing observations, I accept the appeal and set aside the impugned order. A copy of this order be sent to Deputy Commissioner, Faridkot, who will examine the matter as to what action is required to be initiated against the appellant.” The appeal was accepted and the matter was remitted to the Deputy Commissioner, Faridkot, to re-examine the matter as to what action is required to be initiated against the appellant-Krishan Kumar. A copy of this order be sent to Deputy Commissioner, Faridkot, who will examine the matter as to what action is required to be initiated against the appellant.” The appeal was accepted and the matter was remitted to the Deputy Commissioner, Faridkot, to re-examine the matter as to what action is required to be initiated against the appellant-Krishan Kumar. Aggrieved by the order of the Commissioner, Ferozepur Division, Ferozepur, the Municipal Committee, Muktsar, presently Municipal Council, preferred CWP No.10230 of 1988 before this Court, which was dismissed on 16.11.1988 by holding that the impugned order was a remand order and that being so, no reason was found to justify interference at the stage of passing of the order. The order was passed by the Division Bench of this Court. Aggrieved by the order passed by the Division Bench, a review application was filed by the Municipal Committee, Muktsar, praying for review of the order dated 16.11.1988 and admission of the petition. In the review application the following order was passed by the Division Bench:- “Contends that the impugned order, Annexure P/4 was not a remand order and therefore, the earlier order dated November 17, 1988 dismissing the writ petition may be recalled. 2. After hearing the ld. Counsel, we do not find any reason to recall the said order. However, the petitioner applicant is permitted to file a fresh writ petition is so advised. This application is disposed of accordingly.” The petitioner Committee was permitted to file a fresh petition, if so advised. The review application was disposed of. Taking a queue from the order in review application, the Municipal Committee, Muktsar approached this Court by filing CWP No.5252 of 1990 praying for quashing of the order passed by the Commissioner, Ferozepur Division, Ferozepur. The writ petition was disposed of on 18.09.1990 by passing the following order:- “Municipal Committee is claiming ownership of the property in dispute which matter cannot be decided in writ jurisdiction. The Committee is well advised to seek the remedy by filing a civil suit. It has been urged on behalf of the Petitioner that Respondent is paying rent neither to the Municipal Committee nor to anybody else. It will be open to the Petitioner to make necessary application before the Civil Court who will pass the appropriate orders. The Committee is well advised to seek the remedy by filing a civil suit. It has been urged on behalf of the Petitioner that Respondent is paying rent neither to the Municipal Committee nor to anybody else. It will be open to the Petitioner to make necessary application before the Civil Court who will pass the appropriate orders. The writ petition is disposed of accordingly.” It is not disputed that Municipal Committee, Muktsar, did not file a civil suit to establish ownership of the property in dispute. As ownership of the shop was involved, writ proceedings were found inappropriate. Nothing further happened in the matter from 18.09.1990 onwards when the Division Bench had disposed of the petition. On 20.11.2007, after 17 years, the Municipal Council, Muktsar, woke up and filed a fresh application under Sections 4, 5 and 7 of the Act against Udho Ram, tenant and Ravinder Kumar son of Krishan Lal, the latter of whom had meanwhile died, claiming that they are in unauthorized occupation of public property bearing shop No.58, Shaheed Bhagat Singh Market, Muktsar. Ravinder Kumar was said to be a sub-tenant. The application filed before the Collector, Muktsar, exercising powers under the Act, was objected to by the petitioners. It was stated that shop bearing numbers 14 to 35 and 52 to 58 stand amalgamated in Guru Gobind Singh Park. It was, therefore, wrong to suggest that Krishan Lal-petitioner No.2, was in possession of shop No.58. The history of the first round of litigation was narrated in defence of the action brought for ejectment. It was stated that Krishan Lal then was living and being a tenant he was not made party although in the first round of litigation, the then Municipal Committee, Muktsar, had launched the attack for eviction of Krishan Lal. It was stated that respondent No.1-Udho Ram had died in November/December, 1983 and the application against the dead person was not maintainable. Tenancy was denied and it was defended that the plot in question was owned by Udho Ram and Krishan Lal had inherited the property of Udho Ram vide a registered Will dated 07.06.1983. Late Udho Ram had raised construction on the plot in the year 1974-75 and upon the death of Udho Ram, Krishan Lal came in possession of the shop as owner under a registered Will. Late Udho Ram had raised construction on the plot in the year 1974-75 and upon the death of Udho Ram, Krishan Lal came in possession of the shop as owner under a registered Will. Krishan Lal had not taken the shop in rent from the Municipal Committee, Muktsar. The application for eviction filed in 2007 was allowed by the Collector, Sub-Division Muktsar, vide order dated 10.06.2008 holding that the land in dispute was public property for which the second party had not paid rent to the Municipal Committee, Muktsar, till date. The petitioners were evicted and were ordered to pay arrears of rent to the tune of Rs.1,41,178/-. It was not disputed by the Municipal Council, Muktsar that the shop was allotted to Udho Ram in 1979. It was explained that shop No.58 in dispute, according to the map, falls in Khasra No.986-987-988. According to the Jamabandi for the year 1946-47 in the column of ownership, the property was shown as shamlat land in cultivation of Municipal Committee, Town Muktsar. Mutation No.9587 of the same was already sanctioned vide Punjab Government letter No.4328 dated 23.04.1981. Udho Ram had come into possession of the property vide Resolution No.62/79 dated 30.01.1979 through a public auction for Rs.3,700/-per year. Aggrieved by the eviction order passed by the Collector, an appeal was preferred by Ravinder Kumar son of Krishan Lal and Udho Ram, deceased, through his legal representatives-Krishan Lal, before the Deputy Commissioner, exercising power of Commissioner, Muktsar under the Act. The Appellate Authority vide its order dated 30.10.2008 has dismissed the appeal by upholding the impugned order dated 10.06.2008 passed by the Sub-Divisional Magistrate-cum-Collector, Sub-Division, Muktsar. Against the aforesaid orders, the present writ petition has been filed. On 3.03.2009, this Court issued notice of motion and stayed the dispossession of the petitioners. At the motion stage, it was, inter alia, contended by the petitioners that there is no declaration of title in favour of the Municipal Council by any court of competent jurisdiction. In response to the summons, the Municipal Council, Muktsar, entered defence and submitted its written statement taking various preliminary objections and on merits. It is submitted that late Udho Ram came into possession of the disputed property by a resolution of the Municipal Committee, Muktsar, passed on 30.01.1979. In response to the summons, the Municipal Council, Muktsar, entered defence and submitted its written statement taking various preliminary objections and on merits. It is submitted that late Udho Ram came into possession of the disputed property by a resolution of the Municipal Committee, Muktsar, passed on 30.01.1979. The resolution was passed as a result of an auction of the shop in dispute to be given on rent at Rs.3,700/-, which was liable to be enhanced from time to time, as per the instructions issued by the Punjab Government. The shop having been given to Udho Ram in rent and the ownership of the same could not be transferred on the basis of the alleged Will dated 07.08.1983 because in the said Will there are no details of property, which was bequeathed by Udho Ram in favour of Krishan Lal. The Will was a suspicious document and has not been proved beyond doubt. It was stated that a tenant always remains a tenant and the landlord retains a right to evict the tenant from the premises. It is stated that Udho Ram without getting necessary sanction from the Municipal Committee, Muktsar has sub-let the shop to the petitioners, which is contrary to conditions of auction. It was stated that this Court while disposing of Civil Revision No.256 of 2008 by its order dated 17.01.2008 had directed the Collector, Muktsar, to take into consideration all the pleas raised by the petitioners in their reply while deciding the matter on merits. I have heard Mr. Gaurav Chopra, learned counsel appearing for the petitioner, Mr. A.P.S.Gill, Assistant Advocate General, Punjab, for the State and Mr. G.S.Attariwala, Advocate for respondent No.3. Mr. Chopra submits that the matter having been concluded upto the High Court in the first round of litigation, the only remedy left with the Municipal Council, Muktsar, was to have instituted a suit for possession on the basis of title which remedy was not availed for 17 years after the passing of the order 18.09.1990 reproduced (supra). Instead of availing of such remedy, the Municipal Council, Muktsar, started the second round of litigation under the Public Premises Act having lost up to the Supreme Court in its effort to establish ownership over the disputed property. Mr. Instead of availing of such remedy, the Municipal Council, Muktsar, started the second round of litigation under the Public Premises Act having lost up to the Supreme Court in its effort to establish ownership over the disputed property. Mr. Chopra would point out from the cross-examination of Rajneesh Kumar-PW1 recorded in the proceedings under the Act in which there is an admission as follows:- “It is correct that Krishan Lal is in possession at the spot. Vacant plot had been given to Udho Ram, he had constructed the shop thereupon. It is correct that Udho Ram had not got approved any site plan. We have not filed any Civil Suit in the Civil Court.” Possession of Krishan Lal was admitted by the opposite party. It is also admitted that a vacant plot was auctioned on which Udho Ram had constructed the shop, though he had not got any site plan approved. It was admitted that the Municipal Committee/Council had not filed any civil suit before the Civil Court. Rajneesh Kumar-PW1 appeared as witness for the Municipal Committee. Mr. Chopra further submits that inter party disputes have received affirmation by the Division Bench of this Court 23 years ago with respect to proceedings under the Public Premises Act. Since the Municipal Committee/Council had parted with possession of the vacant plot to Udho Ram in 1979, Udho Ram remained in lawful possession. The petitioners claim through Udho Ram under a registered Will. The Will has not been set aside or declared bad by any court of competent jurisdiction. Although the petitioners remained in exclusive possession of the plot/shop on the death of Udho Ram. The petitioners have mentioned in para 16 of the writ petition that they had instituted Civil Revision No.256 of 2008 before this Court at the stage of impugning notice of eviction dated 01.11.2007. It would, therefore, be apposite to reproduce the order passed by this Court dated 17.01.2008. “Prayer in this revision petition is for quashing of the notice, dated 1.11.2007 (Annexure P-1), issued, under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (herein after referred to as “the Act”). Counsel for the petitioners submits that the Municipal Council, Muktsar filed an application, under Sections 4, 5 and 7 of the Act, for ejectment of petitioner No.1. Counsel for the petitioners submits that the Municipal Council, Muktsar filed an application, under Sections 4, 5 and 7 of the Act, for ejectment of petitioner No.1. Vide order, dated 23.4.1986, the application was allowed and petitioner No.1 was ordered to be ejected from the shop in dispute, by the Collector (Deputy Director, Local Government, Ferozepur Division, Ferozepur, exercising the powers of the Collector). Appeal, filed by petitioner No.1, before the Commissioner, Ferozepur Division, Ferozepur, was accepted, vide order dated 14.12.1987, by holding that the Municipal Council had no locus standi to file the application before the Collector. The Municipal Council impugned the order, dated 14.12.1987 before this Court by way of CWP No.10230 of 1988. A Division Bench of this Court dismissed the writ petition, vide order, dated 16.11.1988 by holding that the impugned order, being a remand order, no interference was called for at that stage. A Review Application, filed by the Municipal Council, was also dismissed by this Court on 5.5.1989 but liberty was granted to the respondent to file a fresh writ petition. Consequently, CWP No.5252 of 1990 was filed by the respondent. The writ petition was disposed of with liberty to the respondent to seek adjudication of their title before a civil Court. It is contended that the Municipal Council, without filing a civil suit, to establish its title, in accordance with the liberty granted by this Court, has approached the Collector, who, without examining the matter in detail, has issued the impugned notice to the petitioners. Be that as it may, as proceedings, before the Collector, are at an initial stage, it would not be appropriate for this Court to interfere at this stage. As the petitioners have already filed a reply, raising the aforementioned pleas, the Collector shall, while deciding the matter on merits, take into consideration the facts, noticed herein before. With the aforestated observations, the present revision petition is disposed of.” Still further, Mr. Chopra would draw strength from the vital fact mentioned in the order dated 14.12.1987 passed by the Commissioner, Ferozepur Division, Ferozepur, in Krishan Lal's appeal that the Assistant Collector Ist Grade, Muktsar, had passed an order dated 18.12.1984 that the Municipal Committee, Muktsar, is not owner of the premises in dispute and that the land had remained in continuous and uninterrupted possession of the Deputy Commissioner since 1917-18. The order of the Assistant Collector Ist Grade, exercising review jurisdiction has become final as it has not been challenged by any party so far. The premises in dispute were leased to the predecessor-in-interest of the petitioners and, therefore, they would continue to enjoy the status as lessee. Learned counsel for the petitioners would urge that the second round of litigation launched under the Public Premises Act without getting the question of ownership and title decided by the Civil Court was verily in contempt of the orders passed by the Division Bench of this Court and, therefore, the entire second round of litigation should be declared illegal, and ab initio null and void. The vital question of ownership of the demised premises has been overlooked arbitrarily by the authorities below in the second round of litigation and for this reason as well the impugned orders deserves to be set aside. The question of determination of ownership and title without clear and unambiguous documents could not be permitted to be agitated in proceedings under the Public Premises Act and that to. twice over the Municipal Counsel, Muktsar. The Municipal Counsel could not have expected miracles to happen in the fresh attack. To the contrary, Mr. Attariwala submits that the petitioners are trespassers and usurpers of public land, which is very valuable in the commercial market. He would submit that the petitioners have come in possession under an unlawful Will of Udho Ram when Udho Ram could not have passed title to the petitioners greater than he possessed. Mr. Attariwala has, however, not been able to impress upon this Court any single document or title in favour of the Municipal Committee/Council, Muktsar. Udho Ram died in 1983. The Municipal Council, Muktsar, despite knowledge of death of Udho Ram continued impleading in the application for eviction expecting a decree against a dead person. On this account as well, the impugned orders are illegal since this aspect has not been considered or dealt with. On hearing learned counsel for the parties this Court is of opinion that Municipal Council, Muktsar, was precluded from bringing an action under the Public Premises Act in 2007 after having been shown the door by the Division Bench of this Court to get the issue of ownership decided by a Civil Court. On hearing learned counsel for the parties this Court is of opinion that Municipal Council, Muktsar, was precluded from bringing an action under the Public Premises Act in 2007 after having been shown the door by the Division Bench of this Court to get the issue of ownership decided by a Civil Court. For 17 years the Municipal Committee/Council slept over the matter for reasons which are not forthcoming from this paper book. This Court is aware that in writ proceedings issues of title and ownership are incapable of being decided, nor should be. Neither can the will be questioned in writ proceedings. In the presence of the order dated 18.12.1984 passed by the Assistant Collector Ist Grade, Muktsar, holding that the Municipal Committee is not the owner of the premises in dispute and the order having attained finality and not so far having been challenged by Municipal Council, Muktsar, it is difficult to hold that law would permit the Municipal Council, Muktsar, to initiate eviction proceedings for eviction of the petitioners. The Civil Court is empowered to uphold or set aside findings recorded by revenue authorities but so long as that is not done, the order of the Assistant Collector Ist Grade, Muktsar, would stand in the way of respondent-Municipal Council. Therefore, it falls in natural consequence that the petitioners are not in unauthorized occupation of public premises. This Court would hasten to add that this order would not be taken as the imprimatur of this Court that the disputed premises belong to the petitioners since the only issue which this Court was called upon to opine on was whether the impugned orders passed in the second round of litigation are legal and valid. If there is a true owner other than the petitioners of the disputed premises, he/they/it would remain at liberty to pray for a declaration of title and possession either by filing a civil suit or through proceedings under the Public Premises Act at the hands of the State Government, if we are to go by the order dated 18.12.1984 passed by the Assistant Collector Ist Grade, Muktsar that the land in dispute has remained in continuous and uninterrupted possession of the Deputy Commissioner since 1917-18. Therefore, the State Government would also remain at liberty to question the presence of the petitioners on the disputed property, if there is evidence of ownership on public land vesting in it. For the foregoing reasons, this writ petition is allowed. The impugned orders dated 10.06.2008 (P-9) and 30.10.2008 (P-11) are set aside without any order as to costs.