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Judgment
These Writ Petitions at the instance of Krishi Upaj Mandi Samiti Vijaypur is directed against the order dated 08/03/2010 passed by the Sub-
Divisional Officer and Competent Authority, Madhya Pradesh Lok Parishar (Bedakhli) Adhiniyam, 1974, Vijaypur; whereby, application preferred
by the petitioner under Section 5 of Adhiniyam, 1974 for eviction of the respondent from Plot No.13/2 ad-measuring 15X70=1050 Sq.ft. and Plot
No.13/1 ad-measuring 2100 Sq.ft. situated in the Mandi Area, Krishi Upaj Mandi Samiti, has been dismissed.
The plots in question were leased out to the respondent vide lease deed dated 31/10/1963 and 11/09/1974 respectively for a period of three years.
Besides other, the respective lease deeds contained the following conditions as regard to sub-letting:
^^5- f}rh; i{k Hkwfe lnj dks mlds Ã…ij izFke i{k }kjk cuk;s x;s ekufp= ds vuqlkj iw.kZ #i ls bekjr cukus ds iwoZ vUr&u dj ldsxkA bekjr cuus ds
ckn vUrjxk djus ds iwoZ izFke i{k ls fyf[kr vkKk iznku djus ij gh vius LoRo vUrjxk dk vf/kdkjh gksxk ijUrq 'kRkZ ;g gS fd cMs Cykd dh gkykr es
a;g vUrjxk izFke i{k }kjk vuqefr i= izkIr O;kikjh ;k vkContravening the terms of the lease, respondent sub-let the premises/part of premises to non-licencee which led the petitioners issue show cause
notice on 05/12/2000 as to why the lease be not cancelled. Since reply filed by the respondent has not found satisfactory, Mandi Samiti vide
resolution dated 22/08/2001, called upon the respondent to get the premises vacated. This led to issuance of second show cause notice on
01/09/2001 and 23/11/2001 to get the premises vacated. Aggrieved, respondent filed Civil Suit No.21A/2001 and Civil Suit No.20-A/2001 for
declaration of title and for consequential relief. The Civil Suits were decreed on 20/10/2005 whereby, permanent injunction in favour of the
respondent was issued to the extent that the plaintiff shall not be evicted except in accordance with law. That Civil First Appeal Nos.49-A/2005 and
50-A/2005 and Second Appeal No.251/2006 and Second Appeal No.252/2006 which though were dismissed; however following observations were
made:
“5. I am afraid that such finding will not come on the way of the appellants because the decree of the trial Court is very specific and as per the
terms and conditions of the decree and finding recorded in Para 12 of the Judgment and decree of the trial Court which has been upheld by the
lower appellate Court, the appellants are free to take necessary legal action against the respondent for determining the lease. If the lease deed is in
existence, he can also take necessary action for vacating the premises in accordance with the provisions as provided under the M.P. Krishi Upaj
Mandi Ahdiniyam or any other law. Since no action has been taken by the appellants, therefore, the question whether Krishi Upaj Mandi is a local
authority u/s 7 (3) of the M.P. Lok Parisar (Bedakhali) Adhiniyam, 1974, and premises in question is a public premises u/s 2 (e) of the said 1974
Act, cannot be decided in this Second Appeal. The notices dated 1.9.01 and 23.11.01 issued by appellant which is in fact notice cum order directing
the respondent to vacate the premises within 30 days, else lease will be determined, was the subject matter in the suit and, therefore, trial Court
granted limited relief and held that appellants are at liberty to take legal action in accordance with law. The finding recorded by the courts below is a
finding of fact based on appreciation of evidence. I do not find any merit in this appeal nor any substantial question of law is involved in this
appeal.â€
Consequently, the petitioner Samiti vide resolution dated 26/04/2017 decided to initiate legal proceedings for evicting the respondent being in
unauthorized occupation of the premises in question. After issuing notice on 10/05/2007 as the respondent did not vacate the premises, an application
under Section 5 of Adhiniyam, 1974 was filed by the petitioners before the Competent Authority. The Authority concern while holding that the
premises in question is a public premises and that proceedings under the Adhiniyam are maintainable; yet non-suited the petitioners on the findings
that the Trial Court having allowed the suit, the interference can be only after the expiry of lease period. The order is in the following terms:
“bl izdkj Li""V gS fd vkt Hkh flfoy U;k;ky; }kjk ikfjr LFkxu vkns'k izHkko'khy gkus s ds dkj.k vukons d ls e.Mh lfefr Hkw[k.M ,oa Hkou [kkyh
ugha djok ldrh gSA vkosnd }kjk izLrqr vkosnu i= varxZr eiz- yksd ifjlj ¼cns [kyh½ vf/kfu;e 1974 ds varxZr izLrqr vkons u i= dk voyksdu fd;k
x;k mDr vf/kfu;e dk mn~n's ; 'kkldh; vf/kdkjh ,oa deZpkjh }kjk 'kkldh; Hkou vFkok mldk Hkkx vFkok Hkwfe ij voS/k ykHk yus s ij izfrc/a k yxkuk
gS ifjlj ls vk'k; Hkou ;k Hkou ls vuqyXu vU; Hkkx Hkh ekU; gS bl vf/kfu;e vuqlkj yksd ifjlj dh ifjf/k esa e.Mh lfefr dk ifjlj vkrk gS fdUrq flfoy
U;k;ky; dks LFkxu izHkko'khy gkus s ds dkj.k ifjlj [kkyh ugha djok;k tk ldrk ;fn vukons d dk Hkou [kkyh djok;k tkrk gS rks O;ogkj U;k;ky; ds
vkns'[email protected];ksa dk mYy?a ku fd;k tkuk ekuk tk ldrk gS ftlds rgr U;k;ky; dh voekuuk laca/kh dk;Zokgh Hkh laHkkfor gSA flfoy U;k;ky; }kjk
ikfjr vkns'k Hkw[k.M ij fufeZr Hkou dk vukons d Lokeh gS iV~Vksa dh 'krksZ ds mYya?ku ds lac/a k esa O;ogkj U;k;ky; }kjk fu.kZ;
oknh@vukosnd ds i{k esa fd;k tk pqdk gS ,slh fLFkfr esa dsoy iV~Vs dh vof/k lekIr gksus ds vk/kkj ij iV~Vs dh uohuhdj.k dh O;oLFkk nh xbZ gSA
;gka ;g Li""V fd;k tkrk gS fd Lo;a vukosnd }kjk iV~Vk uohuhdj.k grs q vkons u i= izLrqr fd;k gS rFkk 2010 rd e.Mh 'kqYd] Hkou 'kqYd ,oa fujkfJr
'kqYd Hkh tek fd;k gS ,slh fLFkfr esa vukons d ds fo:) csn[kyh dk;Zokgh fd;k tkuk mfpr u gksus ds dkj.k [email protected] lfpo }kjk izLrqr vkosnu i=
fujLr fd;k tkrk gS rFkk vkons d dks ;g funsZf'kr fd;k tkrk gS fd og e.Mh vf/kfu;e ds izko/kkuksa ds rgr uohuhdj.k dh dk;Zokgh djuk lqfuf'pr djaA
vkns'k ejs s }kjk ikfjr ,oa ?kksf""krAâ€
8 It is this order which is being challenged being perverse and illegal. It is urged that the Court vide judgment and decree dated 20.10.2005 subjected
the eviction of respondent in accordance with law, which was further clarified in the Second Appeal. It is urged that the Mandi having determined
the lease because of the breach of terms and conditions was well within its right in initiating the proceedings and the provision of Adhiniyam 1974. It
is urged that the Competent Authority grossly erred in misconstruing the judgment and decree by the Trial Court that it had perfected the
respondent's title and the suit property until the expiry of the lease. On these contentions, the petitioners seek quashing of the orders.
The respondent, on his turn, has to submit that the petition under Article 226 of the Constitution of 9 India is not tenable, because the petitioner has
the remedy of Appeal.
The issue as to whether an appeal would lie against the order rejecting application under Section 5 of Adhiniyam, 1974 came up for consideration
before a Single Bench of this Court in Khushal Chand vs. State of M.P., 2001 (1) MPLJ 680 wherein taking note of the stipulations in Section 4, 5
and 9 of the Adhiniyam, 1974, it was held by His Lordship :
“8. Be it may, on perusal of the language of Section 5 of the Adhiniyam, it is apparent that no order on the application has been passed. On bare
reading of Sections 4 and 5 of the Adhiniyam it is clear that the showcause notice is issued why the order of eviction should not be made. Section 5
provides that if the competent authority is satisfied that the public premises are in unauthorised occupation, the competent authority may make an
order of eviction. Thus, Section 5 contemplates only one order, i.e., order of eviction. Dropping of the proceedings will not be an order under Section
5 of the Adhiniyam. On bare perusal of the language of Section 5 of the Adhiniyam it is clear that the order would mean the order of eviction.
In the present case also, question of title is disputed and competent authority is of the opinion that there is a dispute of the title and, has rightly
not proceeded with the case. It is for the parties to establish their title before the Competent Court. The order, Annexure P-2 cannot be said to be
an order appellable under Section 9 of the Adhiniyam. Section 5 of the Adhiniyam contemplates only one type of order, i.e., order of eviction. Thus,
interpreting the word ""every order"" in Section 9 of the Adhiniyam it is not clear that the order would mean the order of eviction. When no orders
pertaining to eviction are passed under Section 5 of the Adhiniyam, appeal under Section 9 of the Adhiniyam will not be maintainable.â€
We are in the respectful agreement with the view taken by learned Single Judge. In view whereof, the contention that an appeal lies against the
order impugned are overruled.
It is next contended that the application under Section 5 of Adhiniyam, 1974 was not tenable before the Competent Authority because the land
belonging to the Mandi cannot be construed to be a public premises. In this context, reference can be had of the decision in Meena Agrawal (Smt.)
Vs. Chief Municipal Officer, Municipal Council, Shivpuri and others, 2008(3) MPLJ 153, wherein it is held:
“(22) This judgment of Ashoka marketing limited (supra) relates to interpretation of section 2(e) (ii) of Public Premises (Eviction of Unauthorised
Occupants) Act, whether any corporation not being a company as defined under section 3 of the Companies Act, 1956 or a local authority is
excluded from the definition of public premises, whereas under M.P. Lok Parisar Bedakhali Adhiniyam, 1974, any corporation established by
Central or State Act, and owned and controlled by the State Government or a local authority except company established under section 3 of
Companies Act, 1956 will fall within the ambit of public premises. Corporation has been explained and they will include local authority. In the case
of S.S. Dhanoa (supra), the Apex Court has considered the meaning of corporation and it is held that the term corporation is wide enough to include
private corporation. The word 'corporation' is wide enough to include private corporation. The word corporation occurring in section 2(e)(ii) of the
Adhiniyam, will include the properties of local authorities including municipalities and other local authorities. In the case of Ashoka Marketing
Limited (supra), it is held that the word corporation includes municipalities and other local authorities. Thus, we are of the opinion that the language
of section 2(e)(ii) of the Adhiniyam is clear and specific and it will mean that any corporation which is established by any central or state act or
under them and is owned and controlled by state government or local authority or taken on lease, therefore corporation except the companies
registered under section 3 of the Companies Act, will fall in the definition of public premises. Therefore, any corporation under the control of State
Government and local authority will include any premises owned or taken on lease by the bodies under the control of State Government including
local authority.
(23) We are of the view that the properties owned and controlled by local authority will fall within the ambit of public premises under section 2(e)(ii)
of Adhiniyam, and we hold that Hariom Verma (supra), has not laid down the correct law, and law laid down in the case of R.P. Sharma (supra), is
the correct law. We answer the reference as under: -
“That the public premises as defined under section 2(e) of the Adhiniyam includes the premises belonging to local authority created by Central or
State act, or under the control of State Government or the local authority.â€
13 And whether Market Committee is a local Authority the reference can be had of the stipulations contained under section 7 (3) of the Krishi Upaj
Mandi Adhiniyam, 1972 which stipulates Nothwithstanding anything contained in any enactment for the time being in force, every Market
Committee shall, for all purposes, be deemed to be a local authority.
In view whereof, even otherwise, the respondent has not questioned the finding arrived at by the Competent Authority holding the premises in
question to be a public premises. In that event, the contention that the application was not tenable before the Competent Authority in respect of
property belonging to Marketing Committee is negative. Â
The question now remains to be answered is whether the Competent Authority was justified in holding that the respondent has perfected the lease
title till its expiry. The decision  in the Civil Suit and the observations made in the Second Appeal No.251/2006 and Second Appeal No.252/2006
goes a long way to establish  that Krishi Upaj Mandi Samiti was set at liberty to initiate the action against the lessee even prior to expiry of the
term of lease. The finding contrary to the same arrived by the competent authority is therefore, not sustainable and hereby quashed. Â
The matter is relegated to the Competent Authority  to initiate proceedings  on the application preferred by the petitioner under section 5 of the
Adhiniyam, 1974 and take decision on merit after affording an opportunity of hearing to the parties.
At this stage learned counsel for the petitioner submits that the term of lease of the petitioner in respect of Plot No.13/1 and 13/2 has expired long
back and the respondent has no authority to be in occupation of the premises in question. The competent authority shall also take into consideration
these facts while dwelling upon the application preferred by the petitioner.  Let a decision be taken by the competent authority  within a period
of three months from the date of communication of this order.
The petitions are disposed of finally in above terms.