Chander Bhan vs Chandigarh Administration and others

Prem Chand Jain, J.—The facts as given in the petition may briefly be stated thus:-

Chander Bhan, Petitioner, is carrying on the business of Karyana in the name and style of M/s. Karnal Provision Store, in shop No. 41, Sector 15-D, Chandigarh. The Petitioner is a tenant of Bachan Singh, Respondent No. 3, who purchased the site on which he constructed the shop from the Chandigarh Administiation. The shop was rented to the Petitioner by Bachan Singh at a monthly rent of Rs. 340/- for the purpose of running Karyana business in the said shop.

It is further stated that the Estate Officer Chandigarh, in exercise of his powers u/s 8-A of the Capital of Punjab (Development and Regulation) Act, 1952 (hereinafter referred to as the ''Development (sic)'') resumed the site of the shop and further forfeited 10% of the money paid in respect thereof. The resumption, order was passed on the sole ground that the site was being used as Karyana shop in breach of Clause 16 of the allotment order, as accordingly to the said Clause the shop could only be used for semi-industrial purpose. The order of resumption is attached with the petition as Annexure P-1.

It is further averred that Respondent No 3 did not appear before the Estate Officer either personally or through a counsel and allowed the resumption order to be passed against him. As no appeal was filed by Respondent No. 3, the Petitioner filed an appeal against the order of resumption before the Chief Administrator, Chandigarh, but the said appeal was dismissed on 8th September, 1975, on the short ground that the Petitioner has no locus standi to file the appeal. Thereafter, the Estate Officer by his order dated 21st October, 1975, ordered the eviction of the Petitioner from the shop in dispute. The present petition has been filed calling in question the legality and properiety of the resumption order, as well as of the order of eviction passed against the Petitioner.

Written statement has been filed in the shape of an affidavit of Shri M. G. Devasahayam, I A.S., Estate Officer, Chandigarh, on behalf of Respondents Nos. 1 and 2, in which the material allegations made in the petition have been controverted.

The only contention raised before us by Mr. Kuldip Singh was that the Petitioner was not in unauthorised occuptation of the premises and that proceedings under the Act could not legally be initiated against him. The precise argument of the Learned Counsel was that initial possession of the Petitioner was lawful, that after the passing of the resumption order the occupation of the Petitioner did not become unauthorised and that after the order of resumption proceedings for ejectment of the Petitioner if at all could be commenced in the ordinary court of land and not under the Act. The Learned Counsel sought to buttress his argument by placing reliance on the decision of their Lordships of the Supreme Court in Rajkumar Devindra Singh and Another Vs. The State of Punjab and Others, , on the other hand. Shri Anand Swaroop, Senior Advocate, Learned Counsel for the Respondents, submitted that the nature of the occupation was to be seen on the date when the proceedings for eviction were to be initiated ; that prior to the initiation of eviction proceedings the nature of the possession was immaterial, that in any case, the possession of the Petitioner even initially was unlawful, that the proceedings for eviction were legally and validly initiated against the Petitioner and that the order of eviction against the Petitioner, under the Act, was unquestionable.

After giving ray thoughtful consideration to the entire matter, I am of the view that there is considerable force in the contentions of Shri Anand Swaroop, Learned Counsel for the Respondents.

The scheme of the 1971 Act is that it confers power on the Estate Officer to issue notice to persons who are in unauthorised occupation of any public premises to show cause why an order of eviction should not be made. '' Unauthorised occupation '' under the Act in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. '' Public Premises '' means any premises belonging to or taken on lease or requisitioned by, or on behalf of the Central Government as enumerated in Section 2 (e) of the Act. Section 4 provides a procedure for the issuance of a notice to the person affected to show cause why an order of eviction shall not be made. u/s 5, the Estate Offier passes, after considering the cause, if any, shown by any person an ejectment order.

In the instant case, Respondent No. 3 was the owner of the property which was given on rent to the Petitioner for running Karyana business. The resumption order was passed against Respondent No 3 as he had violated the terms of Clause 16 of the agreement by leasing out the shop for Karyana business, when the shop could only be used for semi industrial purpose. In this situation, I fail to understand as to how even initially the possession of the Petitioner was legal.

10 However, in my view, the nature of possession at the initial stage is of no relevance for determining whether proceedings for eviction could legally be initiated against the Petitioner under the Act or not. As on careful consideration of the relevant provisions of the Act, I find that it is on the date when proceedings u/s 4 of the Act are initiated that the nature of the possession has to be looked into. If on that date the occupation of any person is unauthorised, then the Estate Officer under the Act would have jurisdiction to issue a show cause notice u/s 4 of the Act. Mr. Kuldip Singh contended that the words, " the occupation by any person of the public premises without authority for such occupation " in the definition of '' unauthorised occupation '' clearly support his contention that if the initial occupation is lawful then subsequent change in the nature of possession would not give jurisdiction to the Estate Officer to proceed u/s 4 of the Act. In support of his contention, the Learned Counsel pressed into service the decision of their Lordships of the Supreme Court in Raj Kumar''s case (supra). I am afraid that no such inference can be drawn from the definition of '' unauthorised occupation '', rather the words reproduced above out of the definition of '' unauthorised occupation '' on which reliance was placed by Mr. Kuldip Singh, go to show that if the occupation of any person of the public premises is without any authority, then be would be deemed to be an unauthorised occupant. On the date when notice was issued, the Petitioner was in occupation of the public premises without any authority for such occupation. The authority to occupy the premises that was obtained by the Petitioner from Respondent No. 3 would be of no consequence after the property was resumed by the Estate Officer, as from the date of resumption, the Estate Officer would be the authority for permitting an person to remain in occupation of the premises or not. The decision of their Lordships of the supreme Court in Raj Kumar''s case (supra) is distinguishable as it was dealing with the definition of '' unauthorised occupation '' which materially differs from the definition of the '' unauthorised occupation '' in the Act. The intention of the Legislature in enacting the Act was to provide for a speedly machinery for the eviction of unauthorised occupants from the public premises, by providing summary procedure. If the contention of Mr. Kuldip Singh is accepted then the entire purpose of the Act would be frustrated.

Moreover, the view I am taking finds full support from the provisions of Section 15 of the Act, which provide that no Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or of the recovery of the arrears of the rent payable u/s 7(1) or of the damages payable u/s 7(2) or the costs u/s 9(5). In view of this provision now only one procedure is available for evicting unauthorised occupants of public premises, i.e. by resorting to the provisions of Sections 4 and 5 of the Act. The Legislature in its wisdom has taken away the jurisdiction of the ordinary Court and the Estate Officer can take action for evicting unauthorised occupants from public premises only under the provisions of the Act. Section 15 of the Act completely negatives the contention of Mr. Kuldip Singh that the Estate officer could proceed against the Petitioner only in the ordinary court of law. This section clearly indicate that whatever may be the nature of initial possession, the Estate Officer would be legally entitled to initiate proceedings for eviction if the person is an unauthorised occupant of the public premises, at any time. The only ingredient necessary to be satisfied before initiating proceeding under the Act is that the person is an unauthorised occupant of a public premises. In this view of the matter. I find that the authority under the Act has jurisdiction to proceed if at any time it is found that any person is an unauthorised occupant of public premises.

As earlier observed, no other point was raised by the Learned Counsel for the Petitioner.

For the reasons recorded above, this petition file and is dismissed with costs.

A.S. Bains, J.

I agree.