Satwinder Singh vs Deputy Commissioner and Others

Sanjay Kishan Kaul, C.J.—The dispute pertains to shop No. 8, Bus Stand Road, Malerkotla. The shop was allotted on lease basis to the petitioner in an auction but the petitioner failed to pay the lease amount. Thus, proceedings were instituted by the Municipal Council, Malerkotla, District Sangrur-respondent No. 3 by filing an application under Sections 5 and 7 of the Punjab Public Premises Act, 1973 for ejectment of the petitioner and one Darshan Kumar, to whom the Shop is alleged to have been sublet. The aforesaid application came to be decided by an order dated 30.10.1995 of the Collector (Annexure P-1). The order was passed ex-parte. The petitioner and Darshan Kumar were directed to vacate the premises being a shop and also to pay a sum of Rs. 18,258/-. The petitioner, however, preferred an appeal before the Additional Commissioner (Appeals) Patiala Division, District Sangrur being Misc. Appeal No. 343 of 1999. In the proceedings, the counsel for the Corporation stated that if the petitioner deposited the rent due along with interest, the appeal may be accepted. This proposal was thus acceded to by the Appellate Authority and the petitioner was directed to pay the entire amount along with interest @ 12% per annum within three months.

The petitioner, vide letter dated 20.05.2000 (Annexure P-3), enquired about the dues from the municipal corporation and the same was informed on 01.06.2000 as Rs. 1,44,157/- inclusive of interest @ 18% per annum up to 31.03.2000. This gave rise to a dispute about the quantification of the amount. The Municipal Council thus, filed an application for recovery of Rs. 1,85,816.72 as damages on account of unauthorized occupation of shop w.e.f. 1987-88 to March, 2005 amounting to Rs. 1,03,478.20 along with Rs. 82,338.52 as interest @ 18% per annum. The prayer made in this application was as under:-

It is, therefore, prayed that the respondents be directed to deposit the above-said amount in the office of Municipal Council, Malerkotla, failing which warrant of attachment may kindly be issued against the respondents.

The aforesaid application was decided by the learned Collector vide an order dated 28.10.2005 (Annexure P-9). The Collector went into the accounts and came to the conclusion that a sum of Rs. 84,215 inclusive of rent up to 31.10.2005 was due from the petitioner and since the amount had been specified wrongly, no interest was chargeable. The entire arrears were liable to be calculated @ 12% interest. This amount was, thus, directed to be deposited within a period of 30 days from the date of the order.

The petitioner, thereafter, deposited a sum of Rs. 84,215/- on 28.11.2005 within the stipulated time. There is also separate receipts for Rs. 30,000 of 15.09.2005 and Rs. 20,000/- dated 10.10.2005 towards damages for use and occupation.

Despite the aforesaid deposits, it appears that an appeal was preferred before the District Collector, Sangrur by the Municipal Council, which was decided on 29.03.2006. The operative portion of the order is as under:-

I have heard arguments of both the counsel and has persued record of the lower court from which it is revealed that the appellant had given the property in question to respondent No. 1 on lease, but he has sublet this property further to respondent No. 2 for which he had no right to do so. So respondent is proved to be in illegal possession of the property due to which appellant Municipal Council, Malerkotla is entitled to recover the dues on account of use and occupation charges till date along with interest @ 18% per annum. As per order dated 18.5.2000 passed in appeal challenging order dated 31.10.1995 passed by the lower court the respondent was to deposit the whole amount along with 12% interest within 3 months from the date of order, but he has not deposited this till today, due to which the respondent is proved to be in illegal possession on the property in question. So agreeing with the arguments advanced by the counsel for the appellant, appeal filed by the appellant is accepted and as the respondent is in illegal possession of the property in question so orders are passed to recover the whole amount calculated by the Municipal Council, Malerkotla along with interest @ 12% per annum and dispossess the respondent from the property in question. Order has been pronounced. The file after compliance be sent to record room.

The petitioner, thus, filed the writ petition under Article 226 of the Constitution of India assailing the said order in the impugned writ petition, which was dismissed on 05.03.2009. It is this order, which is sought to be assailed in the present appeal.

A perusal of the impugned order shows that there are two writ petitions decided together. The writ petition in question as well as another writ petition No. 9102 of 2006. The facts have been taken from the other writ petition. No facts of the present case have been mentioned.

Learned counsel for the appellant has rightly pointed out to us that the proceedings initiated by the Municipal Council were only for payment of damages, which had remained unpaid but a finding was reached as to the extent of damages payable of Rs. 84,215/-, which were duly deposited within time. Thus, the finding of the Appellate Authority dated 29.03.2006 that the amount has not been deposited, could not be sustained nor a direction for eviction as no such prayer in any case had been made even in the original application.

We are, thus, of the view that there was no occasion for an eviction order against the petitioner and the prayer was confined to payment of damages and that damages stood paid as determined by the order of the Collector dated 28.10.2005. Thus, the order of the Collector dated 29.03.2006 is not sustainable and is accordingly, quashed.

It is pointed out by the learned counsel for the Municipal Council that there have been even subsequent defaults. We put to the learned counsel for the petitioner that the petitioner cannot take advantage of his own default and file proceedings and thus, must bind himself to clear all further arrears and not to be in default of rent in future.

The learned counsel for the petitioner undertakes on behalf of the petitioner as under:

(i) On the Municipal Council informing the petitioner about further arrears, if any, taking into account the deposits already made as also interest, which accrued thereon at 12% per annum, will clear the liability within one month of the communication of this order.

(ii) The petitioner will not commit any future default in payment of rent and if there are any two defaults the petitioner would voluntarily surrender the possession or the premises/shop to the Municipal Council.

We accept the aforesaid undertaking and the petitioner is directed to file a formal undertaking within two weeks in terms of the aforesaid with advance copy to the learned counsel for the Municipal Council.

We make it clear that the question of subletting has not been gone into by us because that was not the allegation in the application, which resulted in the adjudication and needless to say that if there is any subletting, naturally the Municipal Council would be within its right to proceed in accordance with law against the petitioner or the person, to whom the shop is sublet.

The impugned order dated 05.03.2009 is quashed. The appeal is allowed in the aforesaid terms. The parties to bear their own costs.

List before the Registrar General for compliance qua undertaking, for 10.09.2013.