Punjab-Haryana High Court
Jarnail Singh And Ors vs Shiromni Gurudwara Parbhandhak ... on 15 December, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
211
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No. 3723 of 2012 (O&M)
Date of Decision:15.12.2014
Jarnail Singh and others ...Petitioners
V/s.
Shiromani Gurudwara Prabandhak Committee ...Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN.
Present: Mr. P.K. Gupta, Advocate for the petitioners.
Mr. Arun Bansal, Advocate for the respondent.
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RAKESH KUMAR JAIN, J. (Oral).
This revision has arisen from the orders passed by both the courts below dismissing the application of the petitioners filed for temporary injunction. The petitioners have filed a suit for declaration that they are the lessee over the land measuring 31 kanal 16 marlas situated in village Khwaspur (Piplanwala) Hadbast No. 246, Tehsil and District Hoshiarpur on payment of 1/3rd share of produces and the eviction order passed against them under Sections 4 and 5 of the Punjab Religious Premises and Land (Eviction and Rent Recovery) Act, 1997 (for short 'the Act') is illegal, null and void. As a consequential relief, the petitioners have also prayed for restraining the defendant from interfering in their peaceful possession while executing the eviction order dated 20.05.2008 passed by Sh. N.K. Wadhawan, Deputy Commissioner-cum-Collector, exercising powers of Commissioner Hoshiarpur-Shiromani Gurudwara Prabandhak Committee.
DIVYANSHI 2014.12.18 15:34 I attest to the accuracy and authenticity of this document High Court Chandigarh CR No. 3723 of 2012 (O&M) -2-
Shorn of unnecessary details, it is pertinent to mention that an order of eviction was passed against the petitioners on 20.05.2008 under Sections 4 and 5 of the Act which was upheld by the Commissioner on 29.11.2010 and was further challenged by way of CWP No. 2440 of 2011. In the said writ petition, the following order was passed by this Court: -
"After arguing for some time, learned counsel for the petitioner submits that he may be permitted to withdraw this petition with liberty to challenge the provisions of the Punjab Religious Premises and Land (Eviction and Rent Recovery) Act, 1997, whereunder the action has been taken.
Prayer allowed.
Dismissed as withdrawn with liberty to seek appropriate remedy to challenge the provisions of aforesaid Act, if, so desired"
The petitioners instead of challenging the vires of the Act, filed the present suit in which their application for temporary injunction was taken up at the first instance and decided by both the courts below against them.
Counsel for the petitioners has vehemently argued that there is no dispute that the petitioners are lessee over the land in dispute. In the past, the respondent had filed an application under form K-1 of the Punjab Security of Land Tenures Act 1953, seeking eviction on the ground of arrears of rent. As many as three appeals were filed against the order of eviction dated 31.01.1994 passed by SDO-cum-Asstt. Collector Ist Grade, Hoshiarpur, out of which two were filed by the petitioners and one by the respondent. The District Collector, Hoshiarpur vide his order dated 12.10.1994 set aside the order of eviction and remanded the case back to the DIVYANSHI 2014.12.18 15:34 I attest to the accuracy and authenticity of this document High Court Chandigarh CR No. 3723 of 2012 (O&M) -3- SDO-cum-Asstt. Collector Ist Grade, Hoshiarpur, to take a fresh decision after affording proper opportunity to the parties. The order of remand passed by the SDO-cum-Asstt. Collector was unsuccessfully challenged by the respondent. Thereafter, the Act came into being in the year 1997 as it received the assent of the Governor of Punjab on 05.01.1998 and published in the official gazette on 29.01.1998. After coming into force of the Act, the respondent filed the petition for eviction under Sections 4 and 5 of the aforesaid Act.
Counsel for the petitioners, in support of his submission has relied upon a decision of the Supreme Court in the case of Sushil Kumar Mehta vs. Gobind Ram Bohra (dead) through his LRs (1990) 1 SCC 193 to contend that if the ejectment order has been passed and civil court has no jurisdiction, tenant can always take this plea even at the stage of execution of the decree and the decree passed against him would not operate as resjudicata.
On the other hand, learned counsel for the respondent has submitted that the petition filed under Sections 4 and 5 of the Act was on the ground that the petitioners were in unauthorised possession over the property in dispute and the said petition was allowed throughout by all the authorities in the Act. The petitioners tried to challenge the order passed against them by way of CWP No. 2440 of 2011 and found that they would not be able to succeed, withdrew the same with a prayer to challenge the provisions of the Act. It is submitted that the petitioners should have filed another writ petition to challenge the vires of the Act, but they had filed the suit for declaration with consequential relief for permanent injunction though there is a clear bar under Section 12 which reads as under: - DIVYANSHI 2014.12.18 15:34 I attest to the accuracy and authenticity of this document High Court Chandigarh CR No. 3723 of 2012 (O&M) -4-
"No court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any religious premises or the recovery of the arrears of rent payable under sub-section (1) of Section 6 or the damages payable under sub-section (2) of that section or the costs awarded to Religious Institution under sub- section (5) of section 8 or any portion of such rent, damages or costs."
I have heard learned counsel for the parties and examined the record with their able assistance.
There is no dispute that initially an application was filed by the respondent on form K-1 of the Act of 1953 for seeking eviction of the petitioners on the ground of non-payment of arrears of rent. The appeal was though allowed but ultimately the District Collector remanded the case back on the ground that proper opportunity was not afforded. Be that as it may, during the pendency of the appeal, the Act came into being and the respondent filed the petition before the competent authority for seeking eviction of the petitioners under Sections 4 and 5 of the said Act. That petition was allowed throughout and the writ petition was also withdrawn, meaning thereby, the petitioners were unsuccessful even before this Court to challenge the findings recorded by the authorities regarding eviction. The petitioners were though required to challenge the vires of the Act but they chose to file civil suit. However, Section 12 of the Act categorically provides that no court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any religious premises or the recovery of the arrears of rent payable under sub-section (1) of Section 6 or the damages payable under DIVYANSHI 2014.12.18 15:34 I attest to the accuracy and authenticity of this document High Court Chandigarh CR No. 3723 of 2012 (O&M) -5- sub-section (2) of that section or the costs awarded to Religious Institution under sub-section (5) of section 8 or any portion of such rent, damages or costs.
Counsel for the petitioners, however, submitted that Section 3 of the Act applies to a person who is in unauthorized occupation of religious premises and only thereafter application under Section 5 could be filed whereas respondent had filed the application on form K-1 of the Act of 1953 for seeking eviction of the petitioners and submitted that the petitioners were not in authorized possession.
Be that as it may, the plea as to whether the petitioners were in authorised possession or unauthorised possession, could have been taken before the authorities and once they have been ordered to be evicted by all the courts under the provisions of the Act and the petitioners have been non- suited by this Court as they had withdrawn their writ petition in order to challenge the vires of the Act which was not ultimately challenged, the civil suit was thus barred by Section 12 and no relief could have been granted to the petitioners and the application was rightly dismissed by both the Courts below.
Dismissed.
December 15, 2014 (RAKESH KUMAR JAIN)
Divyanshi JUDGE
DIVYANSHI
2014.12.18 15:34
I attest to the accuracy and
authenticity of this document
High Court Chandigarh