Punjab-Haryana High Court
Ram Chander Sharma vs U.T.Chd. And Ors on 23 December, 2014
Author: Hari Pal Verma
Bench: Hemant Gupta, Hari Pal Verma
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: 23.12.2014
C.W.P. No.2182 of 2000
Ram Chander Sharma
-----Petitioner
V/s
Chandigarh Administration through Administrator &
others
-----Respondents
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE HARI PAL VERMA
1. Whether reporters of local newspapers may be allowed to see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. Sanjeev Singh Thakur, Advocate for
Mr. Sanjiv Bansal, Advocate, for the petitioner.
Mr. Suresh Kalia, Advocate
for respondents.
HARI PAL VERMA, J.
Through the instant writ petition, petitioner has sought quashing of action of the respondents in dispossessing him from House No.2510/I, Sector 38-C, Chandigarh with a further direction to restore the possession of the house and not to evict him without following the due procedure.
Briefly stated, house No.2510/I, Sector 38-C, Chandigarh was allotted to one Ramesh Chander son of Dewan Chand (At some places, the name of the original allottee is mentioned as Ramesh Kumar, therefore, for the purpose of present writ petition, the name of the original VIMAL KUMAR 2015.01.13 16:25 I attest to the accuracy and integrity of this document Chandigarh 2 C.W.P. No.2182 of 2000 allottee is hereinafter referred as 'Ramesh Kumar') in the year 1979, as a low-cost tenement, on lease and hire-purchase basis under the Licensing of Tenements and Sites and Services in Chandigarh Scheme, 1979 (for short, "the Scheme"). In the year1988, a General Power of Attorney was executed in favour of the petitioner by one Hoshiar Singh son of Gurbux Singh, who was holding the general attorney of the allottee Ramesh Kumar son of Dewan Chand. On the basis of the aforesaid attorney, the petitioner continued with the possession of the flat along with his wife and son. The possession is established by virtue of a distribution/ration card issued by the Food and Supplies Department, Chandigarh on 21.11.1990 in the name of the petitioner at the aforesaid address. It is submitted that even the voters Identity Card, which was issued on 14.10.1994, depicts the address of the petitioner as house No.2510/I, Sector 38-C, Chandigarh. The petitioner, who is working as a carpenter and was away to Solan, returned to Chandigarh to see his family on 4.2.2000 and on reaching his house, he found that his house was sealed and the entire household articles were lying in the corridor. On enquiry, the petitioner was told by his wife that on 28.01.2000, the staff of the Estate Office visited the house along with police force and dispossessed them by throwing the household articles outside the house. Noticing the above fact, the petitioner visited the Estate Office with a request to open the seal of the house. However, the said request was not acceded to. Despite VIMAL KUMAR 2015.01.13 16:25 I attest to the accuracy and integrity of this document Chandigarh 3 C.W.P. No.2182 of 2000 repeated requests, the respondents did not even provide him the order of eviction issued for sealing the house. The petitioner submitted a letter dated 08.02.2000 in the office of respondent no.3 and also sent a copy by registered post but no order was given to him. The petitioner has pleaded that till date, he has not been served with any notice, calling upon him to appear before any authority. For eviction from the premises, he has relied upon Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short, "the Act") which has been reproduced as under:-
"4. Issue of notice to show cause against order of eviction (1) If the estate officer is of opinion that any persons are in unauthorized occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing, calling upon all persons concerned to show cause why an order of eviction should not be made.
(2) The notice shall -
(a) specify the grounds on which the order of eviction is proposed to be made:
and
(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest, in the public premises,-
i) To show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and
ii) to appear before the estate officer on the date specified in the notice alongwith the evidence which they intend to produce in support of the VIMAL KUMAR 2015.01.13 16:25 I attest to the accuracy and integrity of this document Chandigarh 4 C.W.P. No.2182 of 2000 cause shown, and also for personal hearing, if such hearing is desired.
3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.
4) Where the estate officer knows or has
reasons to believe that any persons are in
occupation of the public premises, then, without prejudice to the provisions of sub-section (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed."
The petitioner has not only disputed the issuance of any notice, calling upon him to appear before any authority, but has also relied upon the Public Premises (Eviction of Unauthorized Occupants) Rules, 1971 (for short, "the Rules"), to say that he has not been served with any notice as provided under Rule 4. Rule 4 provides the procedure of service of notice. Rule 4 is reproduced as under:-
"4. Manner of Service of notices and orders-
(1) In addition to any mode of service specified in the Act, a notice issued under Sub Section (1) of Section 4 for sub section 1 of Section 5 or sub section (2) of Section 5-A or sub sections (1) (2) or (5) of section 5 or {sub-section (1) or (1-A) of Section 6} or sub section (1) or (2) of section 7 or sub section (1) of Section 13 of the Act shall be served by delivering or tendering a copy of the notice to the person for whom it was intended or to any adult member of his family, or by sending it by registered post VIMAL KUMAR 2015.01.13 16:25 I attest to the accuracy and integrity of this document Chandigarh 5 C.W.P. No.2182 of 2000 acknowledgment due in a letter addressed to that person at his usual or last known place or residence or business. (2) Where the copy of the notice under sub rule (1) is delivered or tendered, the signature of the person to whom the copy is so delivered or tendered should be obtained in token of acknowledgement of the service. (3) In respect of a notice issued under sub-section (1) of Section 4 or sub-section 2 of Section 5-A or sub-section (5) of section 5-B or sub-section (1) or (1A) of Section 6 or sub section (1) or (2) or Section 7 or sub Section (1) of Section 13 of the Act, where the person or the adult member of the family of such person refuses to sign the acknowledgement, or where such person cannot be found after using all due and reasonable diligence, and there is no adult member of the family of such person, a copy of the notice shall be affixed on the outer door or some other conspicuous part of the ordinary residence or usual place of business of such person and the original shall be returned to the estate officer who issued the notice, with the report endorsed thereon or annexed thereto stating that a copy has been so affixed, the circumstances under which it was done so and the name and address of the person, if any, by whom the ordinary residence or usual place of business was identified and in whose presence the copy was affixed
4. (i) If a notice issued under sub-Section (1) of Section 4 [or sub-Section (1) of Section 5 [or sub section (2) of Section 5A or sub section (1) or (2) or (5) of section 5B] or sub section (1) or (2) of section 7 or sub-section (1) of Section 13 of the Act cannot be served in the manner provided in sub rule (1), the estate officer may, if he thinks fit, direct that such notice shall also be published in at least one news paper having circulation in the locality and he may also proclaim the contents of any notice in the locality by beat of drum."
Thus, the petitioner has claimed that neither notice, as provided under Section 4 of the Act, has been issued nor VIMAL KUMAR 2015.01.13 16:25 I attest to the accuracy and integrity of this document Chandigarh 6 C.W.P. No.2182 of 2000 the procedure as provided under Rule 4 of the Rules have been followed. Moreover, Section 5 of the Act further provides that the Estate Officer is under a legal obligation to issue order of eviction by indicating the date on or before which the premises are to be vacated. Section 5 of the Act has been extracted, as under:-
"5. Eviction of unauthorized occupants (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and (any evidence produced by him in support of the same and after personal hearing, if any, given under Clause (b) of sub-section (2) of Section 4) the estate officer is satisfied that the public premises are in unauthorized occupation, the estate officer may make an order of eviction, of reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.
(2) If any person refuses or fails to comply with the order of eviction (on or before, the date specified in the said order or within fifteen days of its publication under sub-section (1) whichever is later) the estate officer or any other officer duly authorized by the estate officer in this behalf may evict that person from, and take possession of the public premises and may, for that purpose, use such force as may be necessary."
In this manner, the petitioner has challenged the action of the respondents, whereby the premises in question has been sealed without issuing any notice and also without VIMAL KUMAR 2015.01.13 16:25 I attest to the accuracy and integrity of this document Chandigarh 7 C.W.P. No.2182 of 2000 following the procedure contemplated in the Act/Rules regarding service of notice and passing of the orders of eviction.
On notice having been issued, respondents No.1 to 4 have put in appearance and have filed their written statement. It has been stated that the allotment which was made to Ramesh Kumar s/o Sh. Dewan Chand was cancelled by the competent authority vide order dated 14.10.1997, for the reason that the allotment of tenement No.2510/1, Sector 38-C, Chandigarh had been procured by him by furnishing a wrong affidavit to the effect that there is no house in his name or in the name of any member of his family. As per clause 24 of the Scheme, the licensee shall not sublet, assign or otherwise part with the possession of the tenement from the site, as the case may be, therefore, the petitioner was not entitled to be inducted in the premises.
Regarding the General Power of Attorney executed by one Shri Hoshiar Singh in favour of the petitioner, it has been submitted that the said Hoshiar Singh is the General Power of Attorney holder of the original allottee and no such power of attorney has been placed on record to show that any such writing has been given by the original allottee to said Hoshiar Singh. As regards notice under Section 4(1) of the Act, it has been stated that as per the report of the Process Server, the notice was served on 13.11.1998. Shri R.C. Sharma, who was residing there, refused to accept the said VIMAL KUMAR 2015.01.13 16:25 I attest to the accuracy and integrity of this document Chandigarh 8 C.W.P. No.2182 of 2000 notice and the same was pasted in the premises in his presence. Similarly, notice under Section 5(1) of the Act was also refused to be accepted by the lady purporting to be wife of Ramesh Kumar and the same was pasted in the premises in her presence.
On the contentions, as raised by learned counsel for the petitioner, vide order dated 13.9.2000, this Court had restored the possession to the petitioner and since then, the petitioner is in possession of the tenement in question.
Learned counsel for the petitioner has argued that allotment of the tenement i.e. House No.2510/I, Sector 38-C, Chandigarh to Ramesh Kumar is as per the Scheme, as he constituted a different family, as defined under Clause 3(i) of the Scheme. The term 'family unit' has been defined under the Scheme in the following manner:-
"Family Unit means a family consisting of a person, his spouse, children and other relative dependent upon and residing with him and it includes earning sons and daughters. Married or earning son above the age of twenty-one, shall be considered as a separate family unit provided that such a person is living in a separate jhuggi."
He further argued that the allotment of the tenement to Dewan Chand father of Ramesh Kumar was made independently on the basis of a separate unit i.e. House No.2511/I, Sector 38-C, Chandigarh and moreover no notice, as required under Section 4 of the Act, was ever served upon the petitioner. Section 4 clearly provides that the show cause VIMAL KUMAR 2015.01.13 16:25 I attest to the accuracy and integrity of this document Chandigarh 9 C.W.P. No.2182 of 2000 notice against the order of eviction is required to be served upon the occupant, who was liable to be evicted. But in the case in hand, no such notice was ever served upon the occupant. Similarly, the procedure of service of notice, as provided under the Rules has also not been adhered to.
On the other hand, learned counsel for the respondents has not been able to controvert the aforesaid submissions, except, that the allotment made to Ramesh Kumar has been produced by him by furnishing a wrong affidavit, that there is no house in his name or in the name of any of his family member.
On 25.11.2014, counsel for the respondents was directed to produce the entire record in respect of the tenement i.e. House No.2510/I, Sector 38-C, Chandigarh. However, on the next date i.e. 26.11.2014, on the basis of record produced, it was pointed out that the allotment of tenement No.2510/1, Sector 38-C, Chandigarh was made to Ramesh Kumar vide Parchi of allotment dated 22.10.1984 on the basis of an affidavit filed by Ramesh Kumar that he or any of the member of his family does not own any residential house or plot. It was also found that tenement No.2511/1, Sector 38-C, Chandigarh was allotted to Dewan Chand, father of Ramesh Kumar vide Parchi of allotment dated 27.03.1979. The complete record of allotment was stated to be not available.
VIMAL KUMAR 2015.01.13 16:25 I attest to the accuracy and integrity of this document Chandigarh 10 C.W.P. No.2182 of 2000
Having considered the aforesaid arguments, we find that the present writ petition deserves to be allowed for the reason that no notice was issued to the petitioner, the occupant of the tenement at the time of cancellation in terms of the requirement of Section 4 of the Act and the Rules made there under. Had the notice been issued, the petitioner could assert that Ramesh Kumar, the original allottee, has furnished an affidavit that there is no tenement allotted to him or any of his family members. Ramesh Kumar was major and has own family at the time of allotment of tenement in question, who was allotted tenement first in point of time than his father. In terms of Clause 3(c) of the Scheme, the family of Ramesh Kumar would be a separate unit. Since no notice was served upon the petitioner in terms of Section 4 of the Act, as admittedly it was the petitioner, who was in possession of the tenement in question, the order of eviction passed against the petitioner is not tenable in law.
In view of the above, while allowing the present writ petition, we set aside the order of eviction passed against the petitioner with liberty to the respondents to take action of cancellation of tenement and of taking possession in accordance with law.
( HEMANT GUPTA ) ( HARI PAL VERMA )
JUDGE JUDGE
December 23, 2014
ak/Vimal
VIMAL KUMAR
2015.01.13 16:25
I attest to the accuracy and
integrity of this document
Chandigarh