Punjab-Haryana High Court
State Of Punjab vs Diali Ram (Deceased) And Ors. on 11 July, 1996
Equivalent citations: (1998)118PLR158
JUDGMENT N.K. Kapoor, J.
1. This is defendants appeal against the judgment and decree of the Additional District Judge whereby the appeal filed against the judgment and decree, of the trial Court has been partially accepted.
2. Plaintiff filed a suit for declaration to the effect that he is a tenant in Nazool shop situate in Chowk Fort, Patiala, at the rate of Rs. 75/- per month and notice dated 27.6.1983 alleging sub-letting is illegal, arbitrary, mala fide, uncalled for, without jurisdiction and against the principle of equity. The plaintiff further claimed relief of mandatory injunction for directing the defendants to charge the rent at the old rate and not to enhance the same without any legislation and the excess amount already received be refunded.
3. This claim was contested by the defendants on the ground that the Civil Court has no jurisdiction in view of the bar of Section 10 and 15 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (for short 'the Act'). The suit is bad for non-joinder of necessary parties; suit could not be filed without issuance of a prior notice in terms of Section 80 of the Code of Civil Procedure.
4. On the pleadings of the parties, a number of issues relating to rate of rent; legality of notice dated 27.6.1983; jurisdiction of the civil Court; maintainability of the suit and the effect of non-joinder of necessary parties were duly framed.
5. The trial Court on considering the matter held that since the plaintiff has already parted with possession of the shop, his status is that of a trespasser. Similarly, the trial Court came to the conclusion that notice issued by the authorities cannot be termed to be illegal, arbitrary or mala fide. The Court, however, held that the civil Court has jurisdiction to try the suit. The suit was, however, dismissed in view of its findings on issues Nos. 1, 2 and 7-A.
6. Feeling aggrieved by the dismissal of the suit, the plaintiff filed appeal before the Additional District Judge. Additional District Judge once again examined the matter on fact as well as on law. The contest revolved around the findings recorded by the trial Court in respect of issues Nos. 1, 2, 3 and 7-A. For facility of reference, these issues are reproduced hereunder:-
(1) Whether the plaintiff is the tenant under the defendants at the rate of Rs. 75/- per month ? OPP. (2) Whether the notice dated 27.6.1983 is illegal, arbitrary, mala fide etc. ? OPP. (3) Whether civil Court has no jurisdiction as alleged in para No. 1 of the written statement? OPP.
(7-A) Whether there is any sub-letting in this case, if so, its effect? OPP. On reconsidering the matter, the Court came to the conclusion that whereas plaintiff is a tenant under the respondent-defendants on a yearly rent but the findings on this issue will be so subject to the decision of the Commissioner in appeal under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973. Similarly, the Court while dealing with the factum of sub-letting also held that the same is sub-judice before the Commissioner and so the civil Court cannot examine the matter. Thus, the appeal was partly accepted vide judgment and decree dated 4.4.1989.
7. Learned counsel for the appellants has termed the decision of the court below to be against law and otherwise unwarranted on facts proved. According to the counsel, the court below has, in fact, erred in law in non-suiting the plaintiff on a short ground that the same could not be examined by a civil Court. Elaborating, the counsel argued that, admittedly the plaintiff had been inducted as a tenant at will in a Nazool Shop which property comes within the purview of public premises. The rights of the parties are thus governed by the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973. Since in the instant case, the plaintiff had sub-let the premises, proceedings for his eviction were initiated by the authorities and after affording an opportunity of hearing to the plaintiff and the sub-tenant, order of eviction was passed which is already subject-matter of adjudication in an appeal pending before the Commissioner. Otherwise too, jurisdiction of the civil Court is specifically barred Under Section 15 of the Act.
8. Learned counsel for the respondent, on the other hand, argued that the status of plaintiff has finally been determined by this Court in RSA Nos. 857 and 858 of 1979 decided on 10.1.1992 holding him to be a tenant of the premises in dispute. Hence, the proceedings, initiated under the Act are per se without jurisdiction and so necessary declaration can be granted by the civil Court.
9. I have heard learned counsel for the parties as well as perused the judgments of the Courts below. The matter in dispute, lies within a narrow compass. The plaintiff had been inducted as a tenant in a Nazool shop situate at Patiala, Sometimes thereafter the shop in dispute was sub-let. Proceedings for eviction of the plaintiff and sub-tenant were initiated under the Act. Collector passed the order of eviction. Feeling dissatisfied with the order of eviction passed by the Collector, plaintiff approached the Commissioner as well as. filed the present suit. Under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, eviction of an unauthorised occupant can be ordered after issuing him a notice Under Section 4 of the Act and after considering his objections etc. Section 3 of the Act defines an unauthorised occupant. According to this section, a person is deemed to be an unauthorised occupant of a public premises who being an allottee, lessee or grantee has by reason of the determination or cancellation of his allotment, lease or grant, ceased to be entitled to occupy or hold such public premises. As per Section 3(c)(i) of the Act, any sub-let in contravention of the terms of allotment, lease or grant, without the permission of the State Government or of any other authority competent to permit such subletting, such a person is said to have contravened the terms of grant or lease and so comes within the ambit of unauthorised occupant. Accordingly, the Collector after considering the matter is of the view that such person or persons are unauthorised occupants and can order their eviction. Section 9 of the Act gives right of appeal from the order of Collector. Under Section 10 of the Act, any order passed by the Collector or Commissioner is final and cannot be questioned in any original suit, application or execution proceeding nor any injunction can be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Section 15 of the Act specifically bars the jurisdiction of any other Court.
10. Since the factual position is admitted, initiation of proceedings for eviction of the plaintiff by the defendants and reception of such an application by the authority under the Act cannot be said to be bad for want of jurisdiction. As a matter of fact, there is no such averment in the plaint. So such a suit could not be entertained by the civil Court. Thus the appeal deserves to be accepted on this short ground. The decisions of this Court in Regular Second Appeal Nos. 857 and 858 of 1979 also do not help the respondent in any manner for the reason that in the aforesaid two cases the appellant is not a party. Thus, such a decision cannot bind the appellant nor is relevant in the context of the present case. Accordingly, I accept the appeal, set aside the judgment and decree of the lower appellate Court and dismiss the suit of the plaintiff in toto. Since the appeal filed by the plaintiff is still pending, I hope that the same shall be expeditiously decided by the concerned Commissioner Without any further delay and perferably within a period of four months. No costs.