Civil Writ Petition No.15438 of 2008 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 15438 of 2008
Date of Decision: February 24, 2012
Krishan Kumar and another ......Petitioners
Versus
The Chandigarh Industrial and Tourism Development Corporation Limited and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE A.N. JINDAL
Present: Shri Rajiv Atma Ram, Senior Advocate, with Shri Nikhil Chopra, Advocate, for the petitioners.
Shri Sukhdev Singh, Advocate, for the respondents.
HEMANT GUPTA, J.
The challenge in the present writ petition is to the orders
dated 18.12.1996 (Annexure P.7); 24.1.2001 (Annexure P.13);
14.9.2001 (Annexure P.19); 14.6.2002 (Annexure P.25) and orders
dated 4.3.2008 (Annexures P.24 and P.26.)
The case has a long and chequered history, but suffice it
to say that the petitioners were granted permission to use Unit No. 16
situated on the ground floor of the Hotel Shivalik-View, Sector 17,
Chandigarh as a licensee for 3 years for carrying out the business of
Textile and Readymade Garments vide letter dated 1.2.1991. Later,
the petitioners intended to change the business from Textile
Readymade Garments to that of Immigration Consultancy Services.
But pending permission, the petitioners started the business of
Immigration Consultancy. The petitioners were served with a show Civil Writ Petition No.15438 of 2008 (2)
cause notice on 3.11.1995 for using the premises for a purpose other
than the purpose for permission was granted. In reply to the letter
dated 29.8.1996, the petitioners informed the respondents that the
Immigration Consultancy business has been closed. It was on
18.12.1996, the licence granted to the petitioners was terminated for
violating the terms of the licence. The petitioners were informed that
Clause No. 23 of the allotment letter has been violated and therefore,
the licence of Shop No. 16 in the Shopping Arcade of the Hotel
Shivalik-View is terminated. The petitioners were directed to hand
over vacation possession by 23.12.1996. It is pleaded by the
petitioners that copy of the order dated 18.12.1996 was never
communicated to the petitioners, but the premises were sealed on
23.12.1996.
On 28.1.1998, the Estate Officer under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short
`the Act'), passed an order of eviction against the petitioners. The
petitioners filed an appeal against the said order, which was
dismissed on 12.3.1998. The petitioners filed a writ petition before
this Court challenging the order of eviction. The said writ petition
bearing CWP No. 14642 of 1998 was disposed of as infructuous vide
order dated 27.9.2000, with liberty to the respondents to proceed
against the petitioners in accordance with law. The said order reads
as under:-
"On January 28, 1998, the Estate Officer held that the petitioners are in unauthorised occupation on the ground that their "Licence has been terminated due to violation of Clause No. 23 of the Licence for the reason that the shop is occupied for more than one year without any adequate reasons". On this basis the petitioners were directed to vacate the premises. The petitioners filed an appeal. It has been dismissed by the Civil Writ Petition No.15438 of 2008 (3)
District Judge, Chandigarh vide order dated March 12, 1998. Copies of the two orders have been produced on record as Annexures P.8 and P.10. The petitioners state that these orders are illegal and should, thus, be quashed.
Counsel for respondent Nos. 2 & 3 states that the orders dated January 28, 1998 and March 12, 1998 may be treated as having been withdrawn and that the respondents shall proceed afresh in accordance with law as the period of licence has already expired. In view of the above, the writ petition is disposed of as having been rendered infructuous. This would, however, not preclude the respondents from proceeding in accordance with law and also from recovering whatever may be due from the petitioners. No costs."
A perusal of the said order shows that the said order was
passed in view of the fact that the licence period has expired on
14.2.1997.
In terms of the liberty granted, the Estate Officer served a
show cause notice for eviction under Section 4 of the Act on
30.3.2001 (Annexure P.15). In pursuance of the said show cause
notice, an eviction order was passed by the Estate Officer on
14.9.2001 (Annexure P.19). The appeal against the said order was
dismissed on 4.3.2008 (Annexure P.24).
The petitioner was served with a show cause notice dated
17.1.2002 under Section 7(3) of the Act claiming arrears of rent for
the period 1.2.1997 to 27.9.2000, amounting to Rs.2,37,776/- and
also a separate notice claiming arrears of damages from 28.9.2000 to
17.10.2001 amounting to Rs.84,301/-. The show cause notices also
contemplated interest amounting to Rs.78,527/- and Rs.59,887/-
respectively, along with future interest @ 18% p.a. The Estate Officer
has passed seprate orders on 14.6.2002 (Annexure P.25). Appeal
against the said orders was dismissed by the learned District Judge Civil Writ Petition No.15438 of 2008 (4)
on 4.3.2008 (Annexure P-26). Both the orders are subject matter of
challenge in the present writ petition.
Learned counsel for the petitioners has vehemently
argued that the Act, is not applicable to the premises in dispute as
the Union Territory, Chandigarh, is a State Government, whereas in
terms of Section 2(e)(2)(i) and (ii) of the Act, the Act is applicable only
if a Company in which not less than 51% paid up share capital is held
by the central Government. Since the entire share capital of the
Chandigarh Industrial and Tourism Development Corporation, is held
by the State Government i.e. the Chandigarh Administration,
therefore, the provisions of the said Act, are not applicable to the
premises in dispute.
It is argued that the premises were sealed on 23.12.1996.
The physical possession of the sealed premises was never given to the
petitioners till 18.10.2001. Therefore, the arrears of rent or damages
or interest thereon, are not payable by the petitioners after the
premises were sealed as the petitioners were forcibly deprived of the
user of the premises. It is further contended that in terms of a
direction of this Court contained in the order dated 25.8.2008, an
affidavit dated 18.1.2012 has been filed. A perusal of the said affidavit
does not show that the physical possession of the premises was ever
handed over to the petitioners, after the premises were sealed.
Therefore, the petitioners are not liable for payment of any arrears of
rent, damages or interest thereon.
It is also pointed out that in terms of the order of this
court dated 10.11.2008, the petitioners have deposited a sum of
Rs.5,81,124/- with the Registrar General of this Court to show their
bona-fide, therefore, the said amount is to be returned to the
petitioners.
Civil Writ Petition No.15438 of 2008 (5)
We do not find any merit in the argument raised by the learned
counsel for the petitioners that the provisions of the Act are not
applicable to the premises in question.
The question as to whether, the Central Government is an
appropriate Government in relation to Union Territory of Chandigarh
came up for adjudication before a Division Bench of this Court in
Punjab Financial Corporation, Chandigarh. v. The Union Territory
Chandigarh and others, (1991)1 ILR (P&H) 140. It has been held that
in relation to Union Territory, wherever the expression "State
Government" is used in relation to the Union Territory, the Central
Government would be the State Government. The relevant extracts
from the said judgment read as under:-
"(3) So far as the first aspect of the matter as highlighted by the learned counsel for the petitioners is concerned, the same, to my mind, stands conclusively answered by the latest pronouncement of the Supreme Court, reported as Goa Sampling Employees' Association v. General Superintendent Co. of India Pvt. And others, AIR 1985 SC 357. While examining the arguments that in relation to a Union Territory there is no State Government and the Central Government, if at all can be said to be one, is the only Government and in the absence of a State Government, the Central Government will also have all the powers of the State Government, and therefore, the Central Government would be the appropriate Government for the purpose of making reference, their Lordships, after analysing the various provisions of the Constitution, posed the question": "Would it be constitutionally correct to describe the Administration of a Union Territory as State Government?" and answered it in the following manner. It clearly transpires that the concept of the State Government is foreign to the administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President. The President may act through an Administrator appointed by him. Administrator is the delegatee of the President. Civil Writ Petition No.15438 of 2008 (6)
His position is wholly different from that of a Governor of a State. Therefore, at any rate the Administrator of a Union Territory does not qualify for the description of a State Government. Wherever the expression "State Government" is used in relation to the Union Territory, the Central Government would be the State Government. Therefore, the Central Government is the appropriate Government Clause (f) of Rule 2 of 1957 Rules framed under the Act further takes the matter beyond the pale of controversy when it says in relation to an industrial dispute in a Union Territory for which the appropriate Government is the Central Government reference to the Central Government or the Government of India shall be construed as reference to the Administrator of the Territory. It is thus abundantly clear that for purposes of these references, the Central Government was the State Government and in view of Section 8(b)(iii) of the General Clauses Act, the Administrator of the Union Territory has to be taken to be the Central Government if his action was otherwise within the authority given to him."
Therefore, the expression `Central Government' appearing
in Clause (i) and (ii) of Section 2(e)(2) of the Act, is in relation to Union
Territory of Chandigarh. Thus, we do not find any merit in the first
argument raised by the learned counsel for petitioners.
To examine the other argument, it may be noticed that
there were three separate proceedings against the Petitioners. Firstly,
proceedings leading to sealing of the premises; Secondly proceedings
for eviction from the premises in dispute; and thirdly the proceedings
for recovery of arrears of rent, damages and interest.
In respect of second and third proceedings, it may be noticed
that the order of termination of lease dated 18.12.1996 stands set
aside when the order of eviction consequent to the termination of
lease dated 28.1.1998 and order in appeal dated 12.3.1998 were
withdrawn before this Court in a writ petition filed by the present Civil Writ Petition No.15438 of 2008 (7)
Petitioners. It was not the case of the petitioners that they have no
interest in the premises when the order was passed by this Court on
27.9.2000. It was not the case of the petitioners that the subsisting
dispute is in respect of the arrears of rent alone. The petitioners
contested the right of eviction and claim of arrears of rent before this
Court, when the order was passed on 27.9.2000. Therefore, the
petitioners continue to be in possession even after expiry of the
licence on 14.2.1997. The fresh proceedings for eviction were initiated
against the petitioners. The eviction order has been passed on
14.9.2001 by the Estate officer and affirmed by the learned Additional
District Judge on 4.3.2008 and similarly in respect of the payment of
arrears of rent, the order was passed on 14.6.2002 and affirmed in
appeal by the learned Additional District Judge on 4.3.2008.
The orders passed by the Estate Officer on 14.9.2001 and
14.6.2002 in the proceedings for eviction and for recovery of arrears of
rent proceed on the basis of a statement made by counsel for the
petitioners on 7.9.2001 before the Estate Officer that the petitioners
were in no mood to hand over the physical possession of the premises
and that the Estate Officer may pass the order in accordance with
law. Therefore, though the premises were sealed by the respondents,
but the petitioners have not permitted the respondents to use the
public premises, in any manner. In other words, neither the
petitioners nor the respondents were able to use the premises for any
purpose.
The sealing of the premises is permitted under Section 5-
C of the Act inserted vide Act No.35 of 1984 w.e.f. 13.11.1984. The
relevant provisions from the Act reads as under:-
"5-A. Power to remove un-authorised constructions etc. - (1) No person shall-
Civil Writ Petition No.15438 of 2008 (8)
(a) erect or place or raise any building or any movable or immovable structure of fixture;
(b) display or spread any goods;
(c) bring or keep any cattle or other animal; on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises.
(2) Where any building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of the provisions of sub- section (1), the estate officer may serve upon the person erecting such building or other structure or fixture, a notice requiring him either to remove, or to show cause why he shall not remove such building or other structure or fixture from the public premises within such period, not being less than seven days, as he may specify in the notice; and on the omission or refusal of such person either to show cause or to remove such building or other structure or fixture from the public premises, or where the cause shown is, not in the opinion of the estate officer, sufficient the estate officer may, by order remove or cause to be removed the building or other structure of fixture from the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue. (3) Where any movable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought to be kept, on any public premises, in contravention of the provisions of sub-section (1) by any person, the estate officer may, by order, remove or cause to be removed without notice, such structure, fixture, goods cattle or, other animals, as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue. xx xx xx
5-C. Power to seal unauthorised construction- (1) It shall be lawful for the estate officer, at any time, before or after making an order of demolition under Section 5- B to make an order directing the sealing of such erection or work or of the public premises in which such erection or work has been commenced or is being carried on or Civil Writ Petition No.15438 of 2008 (9)
has been completed in such manner as may be
prescribed, for the purpose of carrying out the provisions of this Act, or for preventing any dispute as to the nature and extent of such erection or work; (2) Where any erection or work or any premises in which any erection or work is being carried on, has or have been sealed, the estate officer may, for the purpose of demolishing such erection or work in accordance with the provisions of this Act, order such seal to be removed.
(3) No person shall remove such seal except- (a) under an order made by the estate officer under sub-section (2); or
(b) under an order of the appellate officer made in an appeal under this Act."
Section 5-A empowers the Authrity to act against any
person acting against the terms and conditions of occupation, which
includes display or spread of any goods. Sub-section (2) of Section 5-A
contemplates notice of 7 days in case of raising of immovable
structure, whereas sub-section (3) deals with the movable structue for
which prior notice is not required to be served. Since the petitioners
has started using the premises for a purpose other than for which it
was allotted, there was violation of sub-section (1) of Section 5-A of
the Act. Since such violation was in respect of movable property, the
premises could be sealed in terms of sub-section (3) of Section 5-C of
the Act. Therefore, we find that the order of sealing of the premises
licenced to the petitioner is a separate and distinct order, which was
not challenged by the petitioners at any stage. Such action is separate
and distinct from eviction of an unauthorised occupant under Section
5 of the Act and for recovery of arrears of rent under Section 7 of the
Act.
Though by sealing, the petitioners were not able to enjoy
physical possession of the premises, but the consistent stand of the Civil Writ Petition No.15438 of 2008 (10)
petitioners even after the expiry of the licence was to assert their
possession in different proceedings. As late as on 7.9.2001, the
statement of the counsel for the petitioners is that the petitioners is in
no mood to hand over physical possession, meaning thereby that
neither the petitioners have used the premises themselves nor
permitted the premises to be used for public purposes by the
respondents.
In our view, when the petitioners were asserting physical
possession and have not allowed the public premises to be used for
public purposes, it is not permissible for them to assert that they are
not liable to pay arrears of rent or damages. The public property was
deprived of its use only at the instance of the petitioners. It was on
account of the multifarious litigation initiated by the petitioners at
different stages that the public premises could not be used. Therefore,
we do not find any illegality in the order of recovery of arrears of rent,
damages and interest thereon.
Consequently, the present writ petition is dismissed. The
amount lying in deposit with the Registrar of this Court be sent to the
respondents.
(Hemant Gupta)
Judge
(A.N. Jindal)
Judge
February 24, 2012
ds