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HARI SINGH versus COMMISSIONER, HISAR DIVISION & ORS

High Court of Punjab and Haryana, Chandigarh

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Hari Singh v. Commissioner, Hisar Division & Ors - CWP-4806-2006 [2006] RD-P&H 3619 (4 July 2006)

In the High Court of Punjab and Haryana at Chandigarh

......

C.W.P. No.4806 of 2006

....

Date of decision:27.3.2006

Hari Singh

.....Petitioner

v.

Commissioner, Hisar Division and others

.....Respondents

....

Coram: Hon'ble Mr. Justice Ashutosh Mohunta Hon'ble Mr. Justice S.S. Saron

Present: Mr. Sanjay Majithia, Advocate for the petitioner.

.....

S.S. Saron, J.

In this petition under Articles 226/227 of the Constitution of India, the petitioner seeks the quashing of the order dated 26.2.2004 (Annexure-P.6) passed by Collector, Sub Division, Jind (respondent no.2) as also order dated 16.2.2006 (Annexure-P.8) passed by the Commissioner, Hissar Division, Hissar (respondent no.1) whereby the eviction of the petitioner has been ordered from the land as detailed in the head note of the application dated 17.4.2003 (Annexure-P.3) filed under Sections 5 and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (`the Act' for short).

CWP No.4806/2006

[2]

The case of the petitioner is that the Zila Sainik Board, Jind (respondent No.3) is the owner of the land in question which had been leased to the petitioner for the last 28 years on annual lease. Initially, the lease money was Rs.250/- per year which was subsequently increased from time to time and in the year 2002, the half yearly lease amount was Rs.940/-.

During the period of lease in the year 1999, the lease of the land was extended for three years from 1.8.1999 to 31.7.2002 at the rate of Rs.772/- being the half yearly lease amount. Thereafter, on 17.4.2003, the Secretary Zila Sainik Board, Jind (respondent No.3) filed an application (Annexure- P.3) under Sections 5 and 7 of the Act seeking eviction of the petitioner from the land as detailed in the head note of the petition. It was stated that the land was given on lease to the petitioner for three years from 1.8.1999 to 31.7.2002 on half yearly rent of Rs.772/-. After the expiry of the lease period, the petitioner/lessee failed to hand over the possession of the land to the Zila Sainik Board (respondent No.3) despite notices. Notice in the proceedings was issued to the petitioner by the Collector, Sub Division, Jind (respondent No.2). The petitioner during the course of the said proceedings filed an application (Annexure-P.4) for dismissal of the application (Annexure-P.3) filed by the Zila Sainik Board (respondent No.3) before the Collector (respondent No.2) under the Act seeking his eviction. He also took an objection that the Collector (respondent No.2) has no jurisdiction to try and decide the said application (Annexure-P.3) which had been filed by State of Haryana through Secretary, Zila Sainik Board, Jind whereas State of Haryana can never be represented by Secretary of the Board and further the Secretary, Zila Sainik Board, Jind had not been authorized by the Collector, CWP No.4806/2006

[3]

Jind (respondent No.2) or by any competent authority to file the application (Annexure-P.3). In addition to this, the petitioner also filed a detailed reply dated 20.8.2003 (Annexure-P.5) to the notice dated 13.5.2003 under Section 4(1) of the Act regarding vacation of the land and stated that no detail and dimension of the land had been given. Besides, it was stated that the land in question is agricultural land and before filing any eviction petition, notice of at least 6 months is required to be given. Both the parties led evidence in support of their case. The Collector, Sub Division, Jind (respondent no.2) after considering the matter vide order dated 26.2.2004 (Annexure-P.6) allowed the eviction application (Annexure-P.3) filed by respondent No.3 and directed the petitioner to vacate the premises and remove the superstructure on it at his own costs within one month and also pay the agreed rent along with interest @ 12% per annum and penalty @ Rs.1/- per day from 1.8.2003. Aggrieved by the order of the Collector, the petitioner filed an appeal before the Commissioner, Hisar Division, Hissar (respondent no.1) which was dismissed vide order dated 16.2.2006 (Annexure-P.8). The said orders dated 26.2.2004 (Annexure-P.6) and 16.2.2006 (Annexure-P.8) passed by the Collector and Commissioner respectively are assailed in this petition.

Learned counsel for the petitioner contends that the State of Haryana through the Secretary, Zila Sainik Bord, Jind was not authorized to file the application (Annexure-P.3) seeking eviction of the petitioner and the State can act only through the Collector of the District. Therefore, the application (Annexure-P.3) having been filed by an unauthorized person is not maintainable; besides there is no privity of contract between the CWP No.4806/2006

[4]

petitioner and the State of Haryana. It is also contended that the land in dispute is agriculture land and before filing the eviction petition a notice of at least six months was required to be given and served upon the petitioner. It is further contended that specific dimensions of the land in question have not been given and in fact even Khewat and Khatauni numbers have not been mentioned in the lease deed (Annexure-P.1). It is further contended that the grounds of eviction and the details of the area from which the eviction of the petitioner has been sought are not mentioned in the notice and, therefore, the notice is void. In support of his contention, the learned counsel has placed reliance on the case of Ram Chander v. The State of Punjab and another, 1962 PLR 997 and Dr. Yash Paul Gupta v. Dr. S.S. Anand and others, AIR 1980 J&K 16. Besides, it is contended that question of title is also involved.

The petitioner admittedly is occupying the property for the last about 28 years and is regularly paying the lease money. Therefore, it is contended that action of the respondents in seeking his eviction is without any basis.

We have given our thoughtful consideration to the contentions of the learned counsel for the petitioner. It is the admitted case of the petitioner that the Zila Sainik Board, Jind and the petitioner executed a lease deed dated 1.12.1999 (Annexure-P.1) for a period of three years from 1.8.1999 to 31.7.2002. In terms of the lease deed, the petitioner was to pay half yearly rent of Rs.772/-. It has been recited therein that the Secretary, Zila Sainik Board, Jind is the owner in possession of compound/open land property of SRH (Sainik Rest House), Jind and was willing to rent out the open ground/land situated at the main building of the SRH in the North West direction and adjacent to North boundary wall on lease for a definite period CWP No.4806/2006

[5]

and that the petitioner had expressed his desire to take the same on lease.

Accordingly, the lease deed (Annexure-P.1) was executed. On expiry of the lease, the Secretary Zila Sainik Board, Jind issued a notice dated 3.4.2003 (Annexure-P.2) to the petitioner for vacating the land given to him on lease.

It was indicated that the period of agreement had already expired. Besides sanction had been received for construction of Sainik Primary Health Centre on this land. On failure of the petitioner to vacate the land, the Secretary Zila Sainik Board, Jind, filed an application dated 17.4.2003 (Annexure-P.3) seeking eviction of the petitioner from the land as detailed in the head note of the said application. The petitioner filed an application dated 5.8.2003 (Annexure-P.4) for dismissal of the said application summarily. Besides, he also filed his reply dated 20.8.2003 (Annexure-P.5).

The contention of the counsel for the petitioner that the State could not file the petition through Secretary, Zila Sainik Board, Jind is devoid of any merit. The property in question is owned by the Zila Sainik Board and, therefore, is a "public premises" within the meaning of Section 2 (e) of the Act which reads as under:

"Public premises" means any premises belonging to, or taken on lease or requisitioned by, or on behalf of the State Government or requisitioned by the competent authority under the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953, and includes any premises belonging to any [Local authority or District Soldiers', Sailors and Airmen's Board] [or any university established by law] [or any Corporation or Board owned or controlled by the State Government]." CWP No.4806/2006

[6]

A perusal of the above definition shows that property belonging to the District Soldiers' Board is "public premises". Therefore, merely because there is said to be a defect in the form of the petition would not invalidate the proceedings seeking eviction of the petitioner from the land which is owned by the Zila Sainik Board. No prejudice is shown to have been caused to the petitioner in this regard. The procedure for eviction in respect of public premises is provided for under the Act. The procedure having been followed would not vitiate the proceedings under the Act. The fact that the petition has been filed by labeling it as State of Haryana through the Secretary, Zila Sainik Board is mere surplusage and it was taken by the Secretary, Zila Sainik Board to be the property of the State. The property being that of the Zila Sainik Board which is under the control of the State Government, would hardly make any difference if the petition is filed by labeling it as, `State of Haryana through the Secretary, Zila Sainik Board'. The property, in any case, is public premises within the meaning of Section 2(e) of the Act as has been noticed above. In the circumstances, it cannot be said that the petitioner was taken unaware or that the form in which the petition was filed had caused any prejudice to him. The mere fact that the Collector had not authorized the Secretary, Zila Sainik Board to file the petition or that there is no privity of contract between State of Haryana and the petitioner is absolutely inconsequential.

Learned counsel for the petitioner also failed to show that, in respect of agricultural land in respect of proceedings under the Act, a notice of at least six months is required to be served upon the petitioner. Therefore, in the absence of any statutory provision being brought to the notice of the CWP No.4806/2006

[7]

Court with regard to service of six months notice for filing an eviction petition, the said ground is also devoid of any merit.

The contention as regard the specific dimensions not being given in the lease deed is equally devoid of merit. The lease deed (Annexure-P.1) identifies the property which has been given on lease to the petitioner and it is the petitioner's own case that he has been cultivating the same for the last 28 years or so. Therefore, it cannot be said that he is not aware of the identity of the property which was given to him on lease.

Besides, the petitioner himself having taken benefit of the lease in his favour in pursuance of the lease deed dated 1.12.1999 (Annexure-P.1) and having cultivated the land in terms thereof, is not entitled to set up a contrary stand to the effect that details of the land have not been given in the lease deed. He is rather estopped by his act and conduct from raising such a plea.

The next contention of the learned counsel for the petitioner is that there is no ground mentioned in the notice and neither the details of the area from which eviction has been sought is indicated. In support of his said contention, the learned counsel has referred to the case of Ram Chander v. State of Punjab (supra) wherein it was held that under Section 4 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, notice has to be issued some time before the unauthorized person appears before the Collector and further proceedings are taken under Section 5 of the said Act.

The object apparently, it was observed was that the person to whom the notice is issued should precisely know the grounds on which the order of eviction is proposed to be made so that he can show proper cause, when he appears before the Collector and can produce relevant evidence, if necessary, CWP No.4806/2006

[8]

in support of his case. This is a condition precedent to the exercise of power under Section 5 and in the event of non-compliance any order made for eviction would become bad. In the case of Dr. Yash Paul Gupta v. Dr. S.S.

Anand (supra) it was held that the provisions of Section 4(2) of the Act is mandatory and if grounds of eviction are not stated in the notice served on the occupants, the notice is invalid though the occupant may otherwise be in know of the grounds.

There is no dispute that the term of lease between the petitioner and respondent No.3 has already expired and notice for vacating the land was given to the petitioner on 29.7.2002 followed by another notice dated 29.11.2002. The said notices give the ground for seeking eviction of the petitioner which is that sanction had been received for construction of Sainik Primary Health Centre on the land and that the lease agreement had already expired and despite earlier notices, the petitioner had not vacated the land. In fact, in terms of Section 4(1) of the Act, it is for the Collector to issue notice if he is of the opinion that any persons are in unauthorized occupation of any public premises situate within his jurisdiction and that they should be evicted. The notice is to be issued in the manner provided in Section 4 of the Act calling upon all persons concerned to show cause why an order of eviction should not be made. The notice is also to specify the grounds on which the order of eviction is proposed to be made and require all persons concerned, that is to say, all persons who are or may be in occupation of or claim interest in, the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof. In the present CWP No.4806/2006

[9]

case, the petitioner has not placed on record the copy of the notice issued by the Collector on 13.5.2003 in terms of Section 4(1) of the Act. Although, it is evident that before the application dated 17.4.2004 (Annexure-P.3) had been filed, the Collector issued such a notice dated 13.5.2003 under Section 4(1) of the Act. This is evident from the reply/objections dated 20.8.2003 (Annexure-P.5) filed by the petitioner which are to the notice dated 13.5.2003 issued under Section 4(1) of the Act. As such, it appears that the petitioner has based his claim on the notice (Annexure-P.2) which in fact is not the notice of the Collector. The notice of the Collector is dated 13.5.2003 which has not been placed on the record. Therefore, it cannot be said that the petitioner has been unaware of the grounds on which the order of eviction was proposed to be made or that the notice is otherwise invalid for failing to give details of the area from which his eviction has been sought.

In fact the head note of the application dated 17.4.2003 (Annexure-P.3) filed by respondent No.3 seeking eviction of the petitioner gives the necessary field numbers from which the eviction of the petitioner has been sought. It is, therefore, to be taken that there was no vagueness in the notice and that it specified the grounds on which the order of eviction was proposed to be made and also gave necessary particulars from which the eviction of the petitioner was sought.

The contention as regards question of title being involved in the case, is not tenable. The petitioner admittedly is a lessee of the property in question and in terms of Section 116 of the Indian Evidence Act, 1872, a tenant is estopped from disputing the title of his landlord. Therefore, this ground is also without any merit.

CWP No.4806/2006

[10]

Keeping in view the aforesaid facts and circumstances, the writ petition is without any merit and the same is accordingly dismissed.

(S.S. Saron)

Judge

March 27, 2006. (Ashutosh Mohunta)

Judge

gurpreet/hsp


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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