Ram Chander vs The State of Punjab and Another

Grover, J.—This is a petition under Article 226 of the Constitution in which the allegations of the parties as also the facts which have been established may at first be stated.

On 28th February 1958 the petitioner applied to the President, Municipal Committee, Ballabgarh, for allotment of a piece of land opposite to the Tehsil gate. On 22nd March 1958 a resolution was passed by the Committee, a copy of which is annexure ''A'' and which was as follows:-

Unanimously passed that 10'' x 12'' plot be given on a monthly rent of Rs. 3/-. The construction will be a temporary one and he will have to vacate when required.

It may be mentioned that according to the agenda, the application of the petitioner was to be put up "for lease of stall in front of Tehsil". The petitioner claimed that he put up a temporary shed there but in the return filed by the Committee it is stated that a pucca brick and cement structure had been constructed upon the site. On 44th August 1959 the Municipal Committee through its Secretary served a notice on the petitioner that he had put up a pucca structure on the land on lease with him contrary to the conditions of the lease and that an order had been made by the Deputy Commissioner pursuant to which he should remove the structure within a week. On 29th August 19.59 the petitioner filed a civil suit for a mandatory injunction prohibiting the Committee from demolishing the structure on the ground that the construction was only a temporary one and had been made in accordance with the conditions of the resolution and that the notice issued by the Committee u/s 195 of the Municipal Act, 1911, was illegal and ultra vires. The petitioner was granted a temporary injunction by Subordinate Judge Ist Class, Palwal. The Court decided on 11th July 1960 that the relationship of landlord and tenant existed between the parties but that the notice issued by the Committee was valid. The suit was consequently dismissed. Up to this point there is hardly any dispute on the facts. According to the allegations contained in paragraph 7 of the petition, the petitioner filed an appeal in the Court of Senior Subordinate Judge against the judgment of Subordinate Judge 1st Class dismissing the suit and this appeal was filed on 13th July 1960. The petitioner filed an application for grant of a temporary injunction also. The injunction was granted on 14th July 1960. It was served on the Committee on that day but the Committee by force demolished a part of the structure. In the return filed by the Committee, however, it has been maintained that on 13th July 1960 the Committee passed a resolution (Annexure ''R/2''). This resolution was to the effect that there had been no compliance with the first notice and, therefore, notice u/s 220 of the Municipal Act be given to demolish the unauthorised construction within six hours, failing which the Officer In-charge of Sanitation should demolish the. same through Municipal labour. This notice was served on the petitioner on 13th July 1960 and on the morning of 14th July 1960 the structure was entirely demolished by the Municipal labour, the malba, having been delivered to the petitioner in respect, of which a receipt was executed by him (Annexure ''R/3''). This was done before any order of injunction had been served upon the Municipal Committee. By means of a judgment dated 11th October 1960, the Senior Subordinate Judge accepted the appeal of the petitioner and decreed the suit. The appeal Court decided that no relationship of landlord and tenant existed between the petitioner and the Committed but he was a licensee of the site in dispute. It was further found that the evidence which had been led could not lead to any definite conclusion whether the structure put up by the petitioner was of a permanent or temporary nature and the Appeal Court expressed its disagreement with the finding of the trial Court on that point. It was then found that the Committee had failed to give notice within six months of the completion of the alleged structure and so it had no right to give notice for demolition u/s 195(c). The judgment and decree of the trial Court were reversed and the petitioner was granted a decree for injunction against the Committee. It may be mentioned that an objection was raised by the counsel for the Committee before the Appeal Court that as the structure had been demolished and removed by the Committee on the morning of 14th July 1960, the appeal had become infructuous. The Court held that the appeal had been filed on 13th July 1960 and an application for issue of a temporary injunction had also been filed which had been granted on 14th July 1960. The demolition was said to have taken place on 14th July 1960 which was not wholly admitted by the counsel who appeared for the petitioner. As the demolition had been done after the filing of the appeal, it could not affect the merits of the case. The matter being sub judice, the objection was overruled. (sic) regular second appeal is pending against the judgment and decree of the lower appellate Court in this Court (R.S.A. 96 of 1961). It has been asserted on behalf of the Committee in its return that after the filing of the appeal the petitioner started re constructing another structure unlawfully and was served with a notice u/s 195(a) of the Municipal Act.

According to the petitioner, while the civil suit was pending before the trial Court and the temporary injunction was operative, the President of the Committee wrote on 8th June 1960 to the Collector and the Sub-Divisional Officer, Palwal, that the petitioner had put up a pucca construction in contravention of the terms of the resolution and that he had instituted a civil suit and obtained a stay order from the Court and, therefore, action might be taken against him more appropriately under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1969, (to be referred to as the Act). This is not denied on behalf of the Committee On 9th August 1960 the Collector issued a notice to the petitioner u/s 4(1) of the Act to show cause on or before 20th August 1980 why an order of eviction be not made against him. A copy of this notice is Annexure ''D''. It is admitted that the aforesaid notice did not state any grounds for the proposed order of eviction as required by section 4(2)(a) of the Act but it is stated in Paragraph 10 of the return filed by respondent No. 2, the Sub Divisional Officer, exercising the powers of the Collector, that when the petitioner appeared before him it was explained to him that he had failed to pay rent to the Committee and had also acted in contravention of the express and clear terms of contract by building upon the Nazul land a pucca super-structure and the building was without the previous sanction of the Committee and had thus forfeited all the privileges of a legitimate and genuine tenant and so his occupation was unauthorised. In his reply to the notice, the petitioner had stated quite clearly that he was a lessee of the plot and was not in unauthorised occupation of it and he had constructed on it only a temporary shed and that he had filed a civil suit challenging the notice issued by the Committee for demolition of that structure, the appeal in which was pending in the Court of the Senior Subordinate Judge and was fixed for hearing or 10th October 1960. On 16th September 1960 respondent No. 2 made an order u/s 5(1) of the Act directing the eviction of the petitioner from the site in dispute. On 11th October 1960 the Appeal Court decreed the suit of the petitioner, as stated before, and on 6th November i960 respondent No. 2 wrote to the Tehsildar directing him to get the plot in question vacated by use of force and further directed the Station House Officer to assist him in the matter. In paragraph 15 of the petition, it is stated that on 10th November 1960 the petitioner sent a registered notice informing respondent No. 2 of the judgment dated 11th October 1960 and of the order of injunction. These facts are not denied except that it is mentioned in the return of respondent No. 2 that the registered notice was not accompanied with any attested copy of the judgment of the Civil Court or any affidavit of the petitioner. It is stated in paragraph 16 of the petition that on 15th November 1960 the President of the Municipal Committee demolished the structure existing on the site and dispossessed the petitioner therefrom. In the return filed by the respondents it has been denied that the President of the Committee was present at the time when the petitioner was dispossessed. It is stated that the original structure had been demolished on 14th July 1960 but the petitioner had put op new constructions thereafter, in respect of which there was no injunction order of the Civil Court. In paragraph 17 of the petition, it has been alleged that respondent No. 2, namely, the Sub-Divisional Officer, wrote to respondent No. 3, the Municipal Committee, on 16th November 1960 to cancel the lease of the petitioner with effect from 14th July 1960. Consequently the Municipal Committee passed a resolution on 28th November 1960 cancelling the petitioner''s lease with effect from 14th July 1960. According to the petitioner, the Committee had received rent from him upto 31st March 1961 but in spite of this the lease was cancelled with retrospective effect from 14th July 1960 and this had been done in the absence of any such term in the lease. In the return filed by respondent No. 2 these facts are not denied. All that is stated is that respondent No. 2 was transferred from Palwal to Chandigarh and relinquished charge of his office on 15th February 1961 and he was unable to remember the correspondence that passed between his office and of the Municipal Committee. It is further stated that the Sub-Divisional Officer (Civil) exercised the powers of the Sub-Divisional Magistrate under the Code of Criminal Procedure and powers of the Collector under the land laws and also the powers of the Deputy Commissioner under the Municipal Act. The present petition was filed in February 1961 in which the order of the Collector dated 16th September 1960 as also the notice issued by him on 9th August 1960 have been impugned. A prayer has been made for quashing the same and also for restoring possession of the plot to the petitioner.

Although in the petition the validity of the provisions of the Act had been assailed, Mr. R.N. Aggarwal, the learned counsel for the petitioner, has not pressed that matter before me. His main contentions are that the order of eviction made under the Act dated 16th September 1960 was illegal and void as the conditions precedent for the exercise of that power had not been complied with and further that the petitioner was not in unauthorised occupation of the cite in question on the date the order was made and, therefore, no action could be taken against him under the Act. A great deal of emphasis has also been laid on the serious illegality and grave impropriety said to have been committed by respondent No. 2 in making the impugned order when the dispute between the Municipal Committee and the petitioner was pending adjudication in Civil Courts. It is suggested that the whole deject of taking proceedings under the Act was to circumvent and defeat the proceedings Which were pending under the law of the land and which were binding on all the parties concerned including the Collector. According to the petitioner, the use made of the provisions of the Act was mala fide and for extraneous and collateral purposes.

It is common ground that the land in question is Government property being Nazul land. However, it vested in the Municipal Committee for the purpose of management etc. It is not disputed that the Committee was competent to create a lease or a licence in favour of the petitioner. On behalf of the respondents it has been maintained that in the absence of execution of any formal document as required by section 47 of the Punjab Municipal Act no lease had come into existence between the petitioner and the Committee, although in all the relevant documents and orders such phraseology had been employed which showed that the petitioner was the tenant of the Committee. It was decided by the learned Senior Subordinate Judge in the civil litigation, and that decision would stand until it is set aside by this Court in the appeal which is pending here, that the petitioner was a licensee and not a tenant. The licensor being the Committee it was only on 28th November 1960 that a resolution was passed cancelling the lease which meant cancellation bf the licence. There is no provision either in the Act or in any other statute which has been brought to my notice which entitled the Committee to cancel the lease or licence with restrospective effect as was purported to be done, namely, with effect from 14th July 1960. It is argued on behalf of the petitioner that up to 28th November 1960 he was a licensee and the could not be regarded to be in unauthorised occupation of the site in dispute. When the Collector made the order on 16th September 1900 the occupation of the petitioner was not unauthorised, with the result that the notice dated 16th August 1960 (Annexnre ''E'') as also the order made by the Collector (Annexure ''R. 2/A'') were illegal and invalid for the simple reason that the petitioner''s case was not covered by the Act. Section 3 of the Act says that 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) sublet in contravention of the terms of allotment, lease or grant, without the permission of the State Government or of 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.

* * * *

The position taken up on behalf of the respondents is that the petitioner was neither a lessee nor could he become a grantee. He could, therefore, be brought under the word "allottee" only and he would be in unauthorised occupation if his allotment had been cancelled in accordance with the terms thereof or if he had acted in contravention of its terms. So far as the cancellation of his allotment or licence was concerned, that was done long after the passing of the order by the Collector under the Act. The only question is whether he had acted in contravention of the terms of the allotment. For that purpose the resolution dated 22nd March l958 which has been set out before requires examination. It does mention that the construction will be a temporary one and that the petitioner will have to vacate when required but there are no terms and conditions relating to the forfeiture or cancellation of the allotment in case this term was contravened. It is pointed out by the learned counsel for the petitioner that even if it be considered to be implicit in the resolution that the petitioner''s allotment was to stand cancelled if he put up a pucca construction instead of a temporary one, that question had become the subject-matter of civil litigation and it is difficult to attribute any such intention to the framers of the Act that when the matter is before the Civil Courts the authorities under the Act would be competent to ignore that decision and give an independent decision under the Act which may be contradictory to that of the Civil Courts, especially where an adjudication as to rights and status of the parties is involved. It was brought poinredly to the notice of the Collector that the appeal against the dismissal of the suit by the Civil Court was pending. As a matter of fact, even the trial Court had held that the relationship of landlord and tenant existed between tae parties but the suit for injunction was dismissed on different grounds altogether. In face of that finding the Collector could not treat the petitioner''s occupation as unauthorised. The Collector completely ignored the plea of the petitioner that he had filed an appeal which was pending as he was of the view that he could decide about the matter himself under the provisions of the Act. It has been pressed before me with a good deal of force that when the matter is before the Civil Courts, the Collector is bound to await the result of that decision before deciding whether a person has become an unauthorised occupant u/s 3 of the Act. Bat even if it be assumed that he has independent jurisdiction and powers to give a decision on that point, it must be emphasised that the Collector would be acting with grave impropriety in ignoring the decision of the Civil Court or not waiting for it until the matter is of such great urgency that it is not expedient or possible to await the decision of that Court. In the present case it has not been shown that there was any urgency in the matter or that the site which was in occupation of the petitioner was required for such an immediate purpose that the Collector could not await the decision of the Appeal Court which was given only a few weeks after the order made by him. It is noteworthy that respondent No. 2 himself filled the capacity of the President of the Municipal Committee as also of the Collector exercising powers under the Act. He was, therefore, fully aware of all the facts and his acting in such haste cannot be regarded as justifiable at all. The following observations of their Lordships in The State of Bihar v. Rani Sonabati Kumari AIR 1981 S.C. 221, though made in a somewhat different context, are pertinent:-

When the State Government obeys a law, or gives effect to an order of a Court passed against it, it is not doing anything which detracts from its dignity, but rather, invests the law and the Courts with the dignity which are their due, which enhances the prestige of the executive Government itself, in a democratic set-up We consider that on the facts of this case there was no justification, legal or otherwise for the State Government to have rushed the notification u/s 3(1), when its application to modify or vacate the order for interim injunction was pending before the Subordinate Court.

Mr. Aggarwal has strenuously contended that the notice issued u/s 4 of the Act was illegal and invalid and for that reason any order made u/s 5 would also be tainted with illegality. Section 4(2)(a) makes it incumbent that the notice should specify the grounds on which the order of eviction is proposed to be made. Admittedly no such grounds were specified in the notice as is clear from Annexure ''D'' There is nothing in the order of the Collector (Annexure ''R. 2/A'') substantiating the facts now stated in the return that when the petitioner appeared before him he was verbally told what the grounds were It is not possible, therefore, to accept that the grounds were specified to the petitioner in any manner whatsoever, but even on the assumption that he was verbally informed of the grounds u/s 4 when the petitioner appeared pursuant to the notice which had been issued to him, that will not satisfy the requirements of the statute. The notice itself has to be issued u/s 4 some time before the so-called unauthorised person appears before the Collector and further proceedings take place u/s 5. The object apparently is 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, in support of his case. This is a condition precedent to the exercise of power u/s 5 and in the event of non-compliance any order made for eviction would become bad. If any authority is needed, reference may be made to Ravi Pratab Narain Singh v. The State of Uttar Pradesh AIR 1052 All. 99. It was held that sub-section (2) of section 8 of the U.P. Court of Wards Act, 1912, which empowered the State to make a declaration, laid down two conditions. One was that a detailed statement of grounds on which it was proposed to disqualify a proprietor should be furnished to him and the second was that he should be afforded an opportunity of showing cause why such a declaration should not be made. It was held that if either of these essential preliminary conditions was not satisfied, the law did not recognise the existence of any power in the State to make such a declaration. The real basis for coming to this conclusion was that where detailed statement of grounds was not furnished it meant that adequate opportunity of showing cause had not been afforded. The learned Allahabad Judges were of the view that a duty was cast on the Government to ensure that the opportunity of showing cause was adequate and, therefore, the Government must on its own initiative, adopt such a procedure that an opportunity did become available to the person against whom a declaration was sought to be made to produce evidence. In Brundaban Chandra Dhir Narendra v. The State of Orissa AIR 1953 Ori 121, a Bench consisting of Jagannadha Das C.J. (as he then was) and Panigrahi J. restated categorically the basic principles on which the exercise of statutory power is open to challenge. One of these is non-observance of mandatory statutory procedure. The necessity of specifying the grounds in a notice issued u/s 4 of the Act is a part of the mandatory statutory procedure laid down under the Act for the reasons which have already been, stated. It would be futile to multiply authorities because once it is held that the requirement of section 4(2)(a) is mandatory it follows that its non-observance would render the subsequent proceedings void and illegal.

Mr. Aggarwal has pointed out that the Collector further ordered u/s 7(2) of the Act that the petitioner should pay a sum of Rs. 12/- as assessed by him on account of rent etc. Now, section 7 does give such a power but the proviso to sub-section (2) is as follows:-

Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the Collector.

The requirements of the proviso were never complied with. However, this is not a matter which has been agitated in the petition and for that reason I refrain from giving any decision with regard to it. Mr. Bahri has urged strongly that even if the notice dated 16th August 1960 and the Collector''s order dated 16th September 1960 are quashed on the ground that the mandatory provisions of the Act were not followed, the possession of the site in dispute should not be restored to the petitioner as the decision of the Appeal Court in the Civil suit is the subject-matter of appeal in this Court and if that appeal is decided against him, the petitioner will not have any right to claim restoration of possession. Once it is held that the order dated 6th September 1960 was vitiated and it is quashed, I can see no reason or justification for not ordering restoration of possession for which a prayer has been made because the petitioner was dispossessed pursuant to the aforesaid order and as soon as that order is struck down, the status quoante must be restored. It is not the case of Mr. Bahri that the possession of the disputed site has been transferred to any other person and for that reason the rule laid down in Sohanlal Vs. The Union of India (UOI), , would stand in the way of an appropriate writ being issued in respect of restoration of possession. On the contrary, the following observations at page 532 show that the petitioner would be entitled to an order in the nature of mandamus against the respondents:-

The eviction of Jagan Nath was in contravention of the express provisions of section 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in possession of the Union of India.

The learned counsel for the Municipal Committee laid stress on certain facts stated in the returns filed by the respondents with regard to the previous conduct of the petitioner when he was a Municipal Commissioner. That, however has no relevancy so far as the proceedings held under the Act were concerned and the petition cannot be thrown out even if it be assumed that the petitioner had not given a good account of himself as a Municipal Commissioner.

In the result, this petition is allowed. The notice dated 16th August 1960 and the order made by the Collector under the Act dated 16th September 1960 are hereby quashed. An order in the nature of mandamus is issued directing the respondents to restore only the possession of the site to the petitioner forthwith. Parties are left to bear their own costs.