Small Town Committee, Mandi Ateli vs Makhan Lal

D.K. Mahajan, J.—This second appeal is directed against the concurrent decision of the Courts below, decreeing the plaintiff''s suit.

The plaintiff came to Court on the short ground that the Small Town Committee, Mandi, Ateli, was taking steps to demolish his shop and, therefore, an injunction should be issued against the Committee to desist from adopting this course. he plaintiff''s case in the plaint was that he was a tenant of the shop under the Small Town Committee for over forty years. The Small Town Committee admitted that the plaintiff was its tenant, but not for a period of forty years. One thing, therefore, stands prominently established vize.- that both parties are agreed that the relationship between them is that of landlord and tenant, and there is no escape from this conclusion. The controversy between the parties in the suit will be apparent from the issues framed in the case. These are as follows:-

Whether the Court has no jurisdiction to entertain this suit ?

Whether the Small Town Committee, Ateli, is not entitled to remove the mop of the plaintiff ?

Both the Courts below have decided these issues in favour of the plaintiff and have decreed his suit. It may be mentioned that in appeal the Small Town Committee did not challenge the finding of the trial Court on issue No. 1. The finding of the trial Court on issue No 2 only was challenged.

The contention of the Committee was that it could remove the plaintiff from the shop under the provisions of section 39(m) of the Pepsu Small Towns Act, 1954. It was further maintained that in view of the provisions of section 41 of the Act, which provides an appeal to the Deputy Commissioner against an order u/s 39(m), the present suit was not triable by the civil Court. The second part of the argument depends on the decision on the first part of the argument. If the Committee has a right to act under the provisions of section 39(m), surely the civil Court will have no jurisdiction to deal with the matter.

Therefore the real question that required determination was whether the Committee could act u/s 39(m). Section 39(m) runs as follows:-

Subject to the provisions of section 38 and to any rules which the State Government may make in this behalf a committee may, and on the requirement of the Deputy Commissioner shall, by general or special order in writing, provide for all or any of the following matters:-

The prevention or removal of any encroachment over any street, drain, sewer or channel and the recovery of the expenses incurred by such prevention or removal or in rectifying any damage caused to the street, drain, sewer or channel by such prevention or removal.

It will be apparent from the phraseology of this section that to prevent or remove any encroachment over any street, drain, sewer or channel the Committee can take steps. Therefore, it is inherent that there has to be an encroachment before any steps can be taken u/s 39(m),. The Courts below have come to a concurrent decision that there is no encroachment by the plaintiff on any part of the municipal land. He, as admitted by the Committee, is its tenant, The Committee has been receiving rent from him. Therefore the Committee could not act u/s 39(m). In, this view of. the matter it was held that the civil Court had jurisdiction to deal, with the suit. It is now settled, beyond dispute that statutory bodies must act within the four corners of the powers conferred on them under the statutes under which they are constituted. Therefore it was incumbent on the Committee to see that the resolutions that it was passing for removal of the shop in dispute were within the scope of its authority; in other words the Committee should have seen that those resolutions could be given effect to by recourse to section 39(m). 1 have already shown that this could not be done. It cannot be disputed that the Committee in order to evict the plaintiff has to take recourse to due process of law and cannot have recourse to section 39(m) in the peculiar circumstances of this case.

The learned counsel for the Committee has taken exception to the finding of the District Judge that the Committee''s remedy for eviction of the plaintiff is under the Patiala and East Punjab States Union Urban Rent Restriction Ordinance 2006. It is pointed out that a notification (No. 4 dated the 20th of May, 1949) had been issued by the erstwhile State of Pepsu.to the effect that the provisions of the Urban Rent. Restriction Ordinance, 2006: "shall not apply to any building or rented land belonging to * * * any local body". The Pepsu Ordinance has yielded place to East Punjab Urban Rent Restriction Act, 1949 (Act 3 of 1949), section 3 of which empowers the State Government to exempt any building or rented land or any class of buildings or rented lands from the application of the Act. A similar provision existed in the Pepsu Ordinance and in pursuance of that provision the aforesaid notification was issued. Therefore, the learned District Judge was in error in holding that the plaintiff can be evicted under the provisions of Pepsu Urban Rent Restriction Ordinance, 2006. This Ordinance does not apply to property held by the Small Town Committee.

The learned counsel for the Committee has raised the contention that the position of the plaintiff was that of a licensee and not of a tenant, and for this he relies on the statement of the plaintiff wherein it was stated that the plaintiff took the land on lease from the Small Town Committee. From this statement it is sought to be concluded that the land was given on teh bazari basis. I see no warrant for this contention. Moreover this stand is not justified in view of the clear admission by the Committee in the written statement that the plaintiff is the tenant of the Committee. There is, therefore, no merit in this contention.

For the reasons recorded above. I see no force in the present appeal. The same fails and in is dismissed with costs.