Sadhu Ram Krishan Kumar and Another vs Union Territory Administration and Others

Iqbal Singh Tiwana, J.—Firstly, the factual-matrix.

Om Parkash respondent (No. 3) purchased site No. 180 in Grain Market, Chandigarh, in an auction held by respondent No. 2-the Estate Officer, Union Territory, Chandigarh, on 6th of February, 1972, Since in terms of the sale the vendee-respondent failed to pay the instalments, the said site was resumed by respondent No. 2 vide order dated 11th of February, 1975 (copy Annexure P-1) passed u/s 8-A of the Capital of Punjab (Development and Regulation) (Chandigarh Amendment) Act, 19 73, (for short, the Act), even though in the meantime the respondent No. 3 had raised a building thereupon. Om Parkash preferred an appeal against this order of resumption u/s 10(1) of the Act and the same was disposed of by the Chief Administrator, Chandigarh, vide his order dated 1st of September, 1975 (copy Annexure P-2 in C.W.P. No. 2077 of 1980), with the stipulation that in case the vendee paid all the amount due from him along with interest by 31st October, 1975, the site be restored to him Om Parkash, however, failed to carry out this condition of the order, according to him on account of his financial stringency. Instead, he preferred a revision petition u/s 10(4) of the Act before the Chief Commissioner, Chandigarh. This petition was dismissed by the latter on 20th of December, 1979. The possession of the site and the building was later on taken by the Estate Officer, Chandigarh, as a result of the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter called the 1971 Act). At a subsequent stage Om Parkash managed to raise funds and vide his letter dated 14th of May, 1980 (copy Annexure P-3 in C.W.P. No. 2077 of 1980), sent a demand draft for a sum of Rs. 70,000/- to the Estate Officer, Chandigarh, for payment of the amount standing due from him. He also requested the said officer that in case any more amount was due from him, he be duly intimated. As the Estate Officer failed to respond, Om Parkash filed Civil Writ Petition No. 2077 of 1980, claiming the restoration of possession to him on various grounds. This petition of his has been disposed of along with Civil Writ Petition No. 6928 of 1986 filed by the present appellants, that is, Nauhria Ram and M/s Sadhu Ram Krishan Kumar. Though both the writ petitions have been dismissed by the learned Single Judge, yet Om Parkash petitioner was granted the relief that he may "still exercise the option for repurchasing the site in dispute under the provisions of Rule 11-D of the Rules and in that case the letter Annexure P-3 shall be deemed to be such request". As a matter of fact by now the site has been restored to Om Parkash and the possession of the same was delivered to him on 7th of July, 1990.

The claim of the appellants in that petition and as in this appeal, is that Nauhria Ram as partner of firm M/s Sadhu Ram Krishan Kumar, was inducted as a tenant in a portion of the abovesaid building in the year 1974 by Om Parkash at a monthly rent of Rs. 100/- but later on as more area was let out to him the rent was raised to Rs. 550/- per month. Since he was not joined as a party in the proceedings initiated by the Estate Officer under the 1971 Act, he was not bound by the order of eviction dated 22nd of November, 1976, passed against Om Parkash. He as a matter of fact preferred an appeal u/s 9 of the 1971 Act, against the order of the Estate Officer but the same was dismissed by the Additional District Judge, Chandigarh, on 12th of December, 1977 (copy Annexure R-2), with the following observations :-

"These arguments are not tenable. The examination of the record of the learned Estate Officer goes to show that the eviction proceedings were initiated by the learned Estate Officer against Sh. Om Parkash, M/s Central Road Lines Corporation and M/s Indian Roadways Corporation, in July, 1972, after the resumption of their site. The impugned order was passed by him on 10-11 -1976 and notice thereof, in the prescribed form, was issued by him on 22-11-1976. The appellant filed the present appeal, on 26-9-1977, after applying for the certified copy of the impugned order on 20-9-1977 and secured the same on 24-9-1977. Along with the appeal, he filed application for condonation of delay on the ground that he became aware of the impugned order on 20-8-1977. At no time, he appeared before the learned Estate Officer. He cannot be allowed, in this appeal, to say that he is (not) in unauthorised occupation of any portion of the said site in question. Indeed, he has, merely vaguely stated in the memorandum of his appeal and application for condonation of delay, both dated 26-9-1977, that he is tenant thereof for the last more than one year, whereas the eviction proceedings had been initiated by the learned Estate Officer against the said occupiers of the premises in question in January, 1976, for more than one year prior to 26-9-1977. If at all he is in occupation of the portion of the site in question, his said averments indicate that he came into possession thereof during the pendency of the eviction proceedings. If it was so, he was not required to be impleaded in the eviction proceedings and was not entitled to be given show cause notice u/s 4(1) of the said Act and to be afforded opportunity of hearing. It follows that the impugned order is not open to attack on this ground by the appellant, and that it is enforceable against him."

This order concededly was never assailed by the appellants in any manner and it assumed finality.

During the pendency of Civil Writ Petition No. 2077 of 1980 [ Decision reported as (1990-2) 98 P.L.R. 289-Editor ] filed by Om Parkash, the Estate Officer served Nauhria Ram appellant with an order u/s 5(1) of the 1971 Act, to vacate the property in question. This made him file the present Civil Writ Petition No. 6928 of 1986, on the pleas that (i) he is not bound by the proceedings initiated against Om Parkash under the 1971 Act in spite of the fact that his appeal against the order of eviction under the said Act had been dismissed by the Additional District Judge, Chandigarh, on 12-12-1971; and (ii) the resumption proceedings were themselves without jurisdiction as the building constructed by the vendee Om Parkash could not be taken as part of the site sold to him and thus could not be treated as a public premises.

Having given our thoughtful consideration to the said contentions of the appellants, we, however, see no merit in the same.

The argument on behalf of the appellants that they are not bound by the proceedings under the 1971 Act appears to be too late in the day. Nauhria Ram had specifically assailed the order of the Estate Officer by way of appeal but the same, as already pointed out above, was dismissed by the Additional District Judge on 12-12-1977. As is evident from the relevant part of the order reproduced above, the Additional District Judge never accepted the stand of Nauhria Ram that he was in possession of the building in question as a tenant. He, however, mentioned that even if that be so, the alleged tenancy in his favour had been created during the pendency of the proceedings before the Estate Officer and, therefore, he was bound by the order passed by the latter on 22nd of November, 1976. Similarly, the learned Single Judge has recorded a more forthright finding that Nauhria Ram was never in occupation of the premises in question as a tenant. This is what he has said in this regard :-

"A question then arises whether Nauhria Ram petitioner in C.W.P. No. 6928 of 1986 or the firm M/s Sadhu Ram Krishan Kumar of which Nauhria Ram is a partner, was inducted as a tenant on the portion of the godown in dispute in the year 1974 by Om Parkash or that these persons have committed trespass in a portion of the property in dispute after passing of the resumption order by the Estate Officer i.e. after 11-2-1975. In this regard it is noteworthy that no documentary evidence like the rent note or the entries in the accounts of the firm regarding payment of rent since the year 1974 or the receipts of such payment of rent was brought on the file. A perusal of the order of the Estate Officer Annexure P-3 passed in the proceedings u/s 5 of the Public Premises Act, reveals that Nauhria Ram had also produced some photostat copies of the cheques Annexures R-1 to R-8 purported to have been handed over by him to Om Parkash landlord besides producing the registration certificate of the said firm under the Sales Tax Act, Annexure R-9. It is further mentioned that in the registration certificate, the firm has been styled as M/s Gian Chand Krishan Kumar. Thus, the above referred registration certificate under the Sales Tax Act is of no help to conclude that firm Sadhu Ram Krishan Kumar had been carrying on its business since 1974 in the premises in dispute.

In the present writ petition no attempt has been made to produce any documentary evidence to the effect that the above referred cheques were in fact got encashed by Om Parkash landlord although the petitioners were in a position to lead documentary evidence in this regard from its account in the Bank against which the cheques were issued On the other hand, it appears more probable that Om Parkash landlord after resumption '' of the property in dispute on 11-2-1975 by the Estate Officer, Chandigarh, had resorted to induct Nauhria Ram and the said firm, as tenants in a portion of the demised premises, just in order to create legal defence that the proceedings u/s 8-A of the Act regarding resumption of the site in dispute are vitiated due to non-service of notice upon the tenants, as held by the Full Bench of this Court in Brij Mohan v. Chief Administrator (1980) 82 P. L. R. 621. that tenant of a building regarding which an order of resumption is sought to be passed, is entitled to be heard."

We find no good grounds to not to agree with the abovenoted findings recorded by the two Courts.

In the light of the abovenoted conclusion of ours, though we are of the opinion that the second contention raised on behalf of the appellants that the resumption proceedings were in any way without jurisdiction hardly needs to by adjudicated upon, yet we are of the view that the said contention too is equally futile. To sustain this plea, the primary, reliance on their behalf is placed on the judgment of the Supreme Court in Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, Particular reliance is placed on the observations of their Lordships in para 87 of the judgment wherein it is observed that :-

"Due process of law in a case like the present necessarily implies the filing of suit by the lessor i.e. the Union of India, Ministry of Works and Housing for the enforcement of the alleged right of re-entry, if any, upon forfeiture of lease due to breach of the terms of the lease."

The said observations to our mind were made in the facts and circumstances of that particular case and this is so obvious from the observations made by their Lordships in the very next para i.e. para 88 :-

"Nothing stated here Should be construed to mean that the Government has not the power to take recourse to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, where admittedly there is unauthorised construction by a lessee or by any other person on Government land which is public premises within the meaning of Section 2(e) and such person is in unauthorised occupation there of."

In the instant case, the terms of transfer of the site in favour of Om Parkash were undisputedly governed by the provisions of the Act and Section 3(3) of the same provides that notwithstanding anything contained in any other law for the time being in force, until the entire consideration money together with interest or any other amount, if any, due to the Central Government on account of the transfer of any site or building, or both, under sub-section (1) is paid, such site or building, or both, as the case may be, shall continue to belong to the Central Government. As has been pointed out earlier, the site was resumed on account of the non-payment of the instalments due from Om Parkash. Therefore, the title of the property in question continued to be with the Central Government and Om Parkash or any person claiming through him could not possibly be held to be anybody other than unauthorised occupant of the same. Therefore, we also reject this plea of the appellants.

For the reasons recorded above, we see no merit in this appeal and dismiss the same but with no order as to costs.