Karnail Singh vs Sub Divisional Officer (Civil)-cum-Colector, Sirsa

G.S. Singhvi, J.—By an order dated 25.8.1998 passed by him on the applications filed by Gram Panchayat Farwain Kalan, Tehsil and District Sirsa under Sec-lions 4, 5 and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (hereinafter referred to as the Act), the Sub Divisional Officer (Civil) (exercising the powers of the Collector), Sirsa (respondent No. 1) directed the eviction of petitioners-Karnail Singh and Bachan Singh on the ground that they were unauthorisedly occupying the public premises. He also directed them to pay penalty at the rate of Rs. 5,000/- per acre per annum for a period of three years. The appeals filed by the petitioners were dismissed by the Commissioner, Hisar Division, Hisar (respondent No. 2).

When the petitions were listed for admission hearing on 13.7.1999, the Court upheld the order of eviction but issued notice of motion on the question of penalty. For the sake of convenience, order passed on 13.7.1999 in C.W.P. No. 5480 Karnail Singh v. The S.D.O. (C)-cum-Collector and others in reproduced below :

"An application under Sections 4, 5 and 7 of the Haryana Publ ic Premises and Land (Eviction and Rent Recovery) Act, 1972 (hereinafter referred to as the Act) filed by the present respondent-Gram Panchayat for eviction of the petitioner-Karnail Singh from the land in question was allowed by the Collector vide order dated 25.8.1998 and order of eviction was passed. Besides that a sum of Rs. 5,000/- per acre per annum was also imposed as penalty for a period of 3 years. The said order of the Collector was upheld in appeal by the Commissioner vide order dated 11.3.1999. Both these orders have been challenged by the petitioner in this Court by way of present writ petit ion under Articles 226/227 of the Constitution of India.

While deciding the case the Collector found it as a fact that as per the copies of Jamabandis, lease register and other panchayat record, it was clear that the land in dispute was Mushtarka Malkan and the Gram Panchayat had the right to manage the same. It was also found as a fact that it was Gram panchayat which was leasing out this land from time to time as per entries in the lease register. It was also found as a tact that Karnail Singh-present petitioner had taken the land in question on lease for a period of one year in the year 1976-77 and the entry thereof was there on the file. After the expiry of the lease period he continued in unauthorised possession thereof. It was also held by the Collector that Karnail Singh in his statement on oath had admitted that he was neither a resident of the village nor he was owning any land in the said village. While dismissing the appeal of Karnail Singh, the Commissioner also found as a fact that the land was being leased out by the Gram Panchayat from time to time for which patta register had been maintained.

The learned Counsel appearing for the petitioner submitted before us that in fact the Gram Panchayat had no concern with the land in question and the Gram Panchayat could not seek the ejectment of the petitioner from the land in question under the provisions of the Act. It was further submitted that even if Karnail Singh had taken the land in question on lease for a period of one year from Gram Panchayat still he could resist his eviction from the land in question by taking up the plea that the Gram Panchayat had no concern with the land in question. It was submitted that the petitioner had taken the land on lease without knowing fully well their position vis-a-vis the Gram Panchayat. Reliance was placed on 1997(1) PLJ 535 Gram Panchayat Bhedpura v. The Additional Director, Consolidation and others.

We are unable to agree with this submission of the learned counsel for the petitioner. Admittedly, the petitioner had taken the land on lease from the Gram Panchayat for a period of one year and therafter he continued in possession thereof. The petitioner is continuing in possession of the land in question since the day he had taken the said land on lease from the Gram Panchayat. It is provided u/s 116 of the Indian Evidence Act that no tenant of Immovable property shall be permitted to deny the title of the landlord at the beginning of the tenancy. In Sri Ram Pasricha Vs. Jagannath and Others, it has been held by the Apex Court that the tenant in a suit for eviction is estopped from questioning the title of the landlord u/s 116 of the Evidence Act and the tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy and the question of title to the leased property is irrelevant under the general law. Similarly in Subhash Chandra Vs. Mohammad Sharif and Others, , it was held that Section 116 of the Evidence Act does not permit the tenant during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. Similarly, in 1969(1) SCWR 844 Muddada Chavanna v. Sri Sri Sri Kodandrama Swami Varu. it was held by the Supreme Court that the appellant was estopped from raising the plea that the deities had no title to the land and even though he has been inducted into the land under the agreement, he is not liable to pay rent to the deities. It was further held that Section 116 of the Evidence Act raises estoppel against the appellant (lessee) preventing him from raising the contention that when he was put into possession the deities had no title to the land. A Division Bench of the Court had also held in 1996(1) PLR 154 : 1996 PLR 494 : 1996(1) RCR 446 (P&H)(DB), Kartar Singh v. Collector, Patiala and others that it was established on the record of the case that appellants came to occupy the land as tenants by the Gram Panchayat and in their considered view they were estopped from denying the title of their landlord.

In view of the law laid down by the Hon''ble Apex court, the ruling relied upon by the learned Counsel for the petitioner reported in 1997(1) PLJ 535 (supra) thus would be of no help to the petitioner.

In view of the above, we do not find any infirmity in the orders dated 25.8.1998 and 11.3.1999 passed by the Collector and Commissioner respectively with regard to the order of eviction of the petitioner from the land in question. Accordingly, we uphold these orders with regard to the eviction of the petitioner from the land in question.

It was then contended before us by the learned Counsel for the petitioner that the Collector erred in law in imposing penalty @ Rs. 5,000/- per acre per annum for a period of 3 years. It was submitted that the procedure laid down under the Act has not been followed in this case.

Notice of motion only on the question of penalty for 16.9.1999.

Stay recovery of penalty meanwhile."

In view of the aforementioned order, learned Counsel for the parties confined their submissions on the legality of the penally imposed by respondent No. 1. Shri L.N. Verma argued that imposition of penalty should be declared as nullity and quashed because of the non-compliance of Section 7(2) of the Act read with Rule 6 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Rules, 1973 (hereinafter referred to as the Rules) and the principles of natural justice. He asserted that no notice or opportunity of hearing was given to the petitioners before imposition of penalty. Shri Ravi Sodbi, learned Counsel for respondent No. 3 conceded that notice and opportunity of hearing were not given to the petitioners but, at the same time, he pleaded for upholding the penalty imposed by respondent No. 1 by arguing that the petitioners have been proved to be unauthorised occupants of the land belonging to the Gram Panchayat.

We have thoughtfully considered the respective submissions. Sections 4 and 5 of the Act lay down the procedure for passing an order of eviction against an unauthorised occupant of public premises. Section 4 envisages issuance of show cause notice by the Collector as a condition precedent to the passing of an order of eviction. Section 5 declares that after considering the cause, if any, shown by the person upon whom notice u/s 4 has been served and the evidence, which he may produce in support of his plea, and after giving him reasonable opportunity of being heard, the Collector may make an order of eviction. Sub-section (2) of Section 7 empowers the Col lector to pass an order requiring the unauthorised occupant of the public premises to pay damages. Sub-section (3) of Section 7 lays down that "no order under sub-section (1) or subsection (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show within such time as may be specified in the notice, why such order should not be made, and his objections, if any, and any evidence he may produce in support of the same, have been considered by the Collector." Rule 6 of the Rules enumerates the factors which are required to be taken into consideration in assessing the damages. These are :

"(a) the purpose and the period for which the public premises were in unauthorised occupation;

(b) the nature, size and standard of the accommodation available in such premises;

(c) the rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation to a private person;

(d) any damage done to the premises during the period of unauthorised occupation;

(e) any other matter relevant for the purpose of assessing the damages."

It is, thus, clear that the Act and the Rules do not provide for imposition of penalty on the unauthorised occupant of public premises but the Collector can, after following the procedure prescribed by Section 7(2) and (3) of the Act read with Rule 6 of the Rules, impose damages.

A perusal of the record of these petitions shows that before passing the impugned orders, respondent No. 1 issued notices and gave opportunity of hearing to the petitioners as envisaged by Sections 4 and 5 of the Act. However, he neither made assessment of damages in accordance with the prescribed principles nor he gave notices and opportunity of hearing to the petitioners. It is thus, clear that before passing an order of imposition of penalty (damages), respondent No. 1 did not comply with the mandatory provisions of Section 7 of the Act read with Rule 6 of the Rules and the basic rule of natural justice that no man can be condemned unheard and, in our opinion, this is sufficient to invalidate the impugned orders to the extent of penalty.

The appellate orders passed by respondent No. 2 arc liable to be quashed because respondent No. 2 did not consider the plea raised by the petitioners that the order of penalty is ultra vires to Section 7 of the Act.

For the reasons mentioned above, the writ petitions are partly allowed. The orders dated 25.8.1998 passed by respondent No. 1 are quashed to the extent of pan- ally with liberty to him to pass fresh order in accordance with law.

Petitions partly allowed.