______________________________________________________ Whether reporters of local Papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP NO.38 of 1998. Judgment Reserved on 31.5.2007. Date of decision: June 15, 2007. Harish Sood and Others. ……. Petitioners. Vs. State of H.P. and Others. ……. Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, ACJ. The Hon’ble Mr.Justice Surinder Singh, Judge. Whether approved for reporting? No. For the petitioners: Mr. Vinay Kuthiala, Advocate. For the respondents: Mr. M.S. Chandel, Advocate General with Mr. J.S. Guleria, Law Officer for the respondents. Surinder Singh, J. In this petition the learned counsel for the petitioners only pressed for following reliefs “a) That the notice dated 22.10.91 (Annexure PO), under Section 4(1) of the Public Premises Act, may kindly be quashed on the ground of being violative of the mandatory provisions of law……… b) That the order dated 21.2.97 (Annexure PQ), passed by respondent No.2 in Case No.8 may kindly be quashed and the entire proceedings be held to be void ab-initio. c) That the order dated 1.12.97, (Annexure PU), passed in Misc. Appeal No.195/97, by respondent No.4 may kindly be quashed or in the alternative respondent No.4 be directed to condone the delay in filing the appeal and to hear the same on merits; and 2 e) That the respondents be directed not to dispossess the petitioner from the open plot measuring 200 sq. yards of land rented out to him except in accordance with law, and be further directed not to cause any damage to the structure and goods of the petitioner on the plot.” ADMITTED FACTS. Admitted facts of the case are as under:- 1. Shri Tirlok Chand Sood (now deceased) was granted the lease of the demised premises w.e.f. 17.8.1966 to 16.8.1967 on monthly rent of Rs.20/- vide lease deed dated 17.8.1966 (Annexure PB). 2. During the continuance of the lease aforesaid, there was reorganization of the State in the month of November, 1966 and the demised premises were vested in the State of Himachal Pradesh and came under the management and control of the Estate Officer, H.P. Public Works Department and the Executive Engineer-respondent No.3. 3. After the expiry of the lease, the petitioner Tirlok Chand Sood remained in possession of the plot, over which he was running a coal depot. Vide Annexure-PC dated 15.10.1969, the Estate Officer (respondent No.2) sent the notice for the recovery of the outstanding balance amount. It was made clear that in the event of non-payment of balance amount, the matter will be referred to the higher authorities/ Deputy Commissioner concerned for the recovery. 4. The Estate Officer had issued a notice on 8.5.1972 under sub Section (1) of Section 4 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (hereinafter referred to as the Act), for the eviction of the petitioner Tirlok Chand Sood in the following manner:- 3 “NOTICE UNDER SECTION (1) OF SECTION 4 OF THE HIMACHAL PRADESH PUBLIC PREMISES AND LAND (EVIDECTION AND RENT RECOVERY) ACT, 1971. BEFORE THE ESTATE OFFICER, (exercising the power of Collector) HIMACHAL PRADESH GOVT. SHIMLA. TO (All persons concerned and in particular to) Shri Tirlok Chand Sood, Shiva Coal Company, Nabha Estate, Shimla-4. WHEREAS, I, the undersigned, am of the opinion of the grounds specified below, that you are in unauthorized occupation of the Public Premises mentioned in the schedule below and that you should be evicted from the said premises. ` G R O U N D S ` You have been continuing to occupy the public premises specified in the schedule below, even after you tenancy expired long ago, and you holding over is without authority hence unauthorized. NOW, Therefore, in pursuance of sub-section (1) of Section 4 of the Act, I hereby call upon you to show cause on or before the 19.5.72 why such an order of eviction should not be made. `S C H E D U L E ` Open Plot, below Municipal Latrin, Nabha Estate, Shimla-4. Sd/- Dated: 8.5.72 SIGNATURE AND SEAL OF THE ESTATE OFFICER (COLLECTOR)” 5. The notice aforesaid was contested on the ground that the lease was still subsisting and the petitioner was continuing paying the rent and its arrears. Some of the receipts were also attached with the reply (Annexures PF/ PG). 6. When the matter was pending a memorandum no: 7-/72-GA (D) dated 30th March 1976 (Annexure R/1) was issued to the respondent Estate officer the body of which is reproduced hereunder: 4 “Subject: Eviction proceedings against leave holders (Private persons)/ other unauthorized occupants. Reference his Memo No.EO-Eviction/73-1853, dated the 12th February, 1974, on the above subject. 2. Sh. T.C. Sood (Trilok Chand Sood), to whom an open plot of 200 Sq.yards was leased out during the year 1966 by the erstwhile Punjab Government has not paid the rent from February, 1972, onwards @ Rs.20/- P.M. so fixed at the time of leasing out the premises. The total amount of arrear of rent from February, 1972 upto date, may please be recovered from him in lump-sum. In case he does not pay the rent arrear within one month, he may be evicted from the Government premises, after observing all codal formalities. 3. The rent of the open plot of 200 Sq. yards which was fixed as back as 1966 seems to be too less and as such action may be taken to get it reassessed immediately. Jai Hind. Sd/- (B.D. Shaunak) Under Secretary (GAD) to the Government of Himachal Pradesh. The Estate Officer, H.P. Government, Shimla-2.” 7. In the meantime, said Shri Tirlok Chand had applied for the permission to construct the temporary structure of wooden posts and sheet roofing. The respondent No.3 vide letter dated 2.1.79 (Annexure PH) permitted the petitioner to construct a temporary structure so that the coal and fuel wood may not get wet. 8. Vide Annexure PM dated 5.1.1990, the respondent-Estate Officer in reply to the letter of the petitioner dated 8.12.1990, informed that the demand of rent raised to the tune of Rs.9,07,004/- from the petitioner is justified as per the rules of the State Government and all the details were mentioned in the said letter and the petitioner was asked to liquidate the arrears. But the petitioner did not avail the opportunity and the arrears were not paid within the time as requested. 5 9. Therefore, on 30.6.1990, the Estate Officer sent another notice (Annexure PI), under Section (1) of Section 4 of the Act (page 26) for the area which was further encroached upon by him, which is reproduced hereunder:- “NOTICE UNDER SECTION (1) OF SECTION 4 OF THE HIMACHAL PRADESH PUBLIC PREMISES AND LAND (EVIDECTION AND RENT RECOVERY) ACT, 1999. TO (All persons concerned and in particular to) Shri Trilok Chand Sood, Prop., M/S Shiva Cola Company, Nabha Estate, Shimla-4. WHEREAS, I, the undersigned, am of the opinion of the grounds specified below, that you are in unauthorized occupation of the Public Premises mentioned in the schedule below and that you should be evicted from the said premises. ` G R O U N D S ` You occupied the public premises specified in the schedule below without any authority. NOW, Therefore, in pursuance of sub-section (1) of Section 4 of the Act, I hereby call upon you to show cause on or before the 16.7.90 why such an order of eviction should not be made. `S C H E D U L E ` 1. 181.33 Sq.Yds. land. 2. Shed beyond the authorised Shed of 10’ x10’ Sd/- Dated: 30.6.90 SIGNATURE AND SEAL OF THE COLLECTOR (ESTATE OFFICE) DIRECTORATE OF ESTATES, H.P. SHIMLA- 171002.” 10. In reply to it, the petitioner Tirlok Chand Sood made the similar reply as submitted by him earlier and contended that he was a contractual and perpetual tenant in the premises in question, which was taken on lease since 1966. Thus he was in lawful possession and further that he had spent an amount of Rs.1,00,000/- on the development of said plot for providing retaining wall etc., therefore, requested to drop the proceedings. 6 11. Vide order dated 18.1.1991 (Annexure PJ), the respondent- Estate Officer passed the eviction order. The petitioner filed an appeal against the above orders of the Estate Officer, registered as Miscellaneous Appeal No.20/1991 and the Commissioner vide his order dated 20th June, 1991 (Annexure PL) observed that in the absence of the demarcation and oral evidence, the factum of encroachment was not fully proved, therefore, remanded the case to the Collector with a direction to demarcate the land through the revenue agency. The relevant portion of the order is extracted as under:- “I have gone through the record and heard the parties. The perusal of the record reveals that piece of land measuring 200 sq.yards was allotted to M/s Shiv Coal Co., on lease basis. The allegation against Sh. Tirlok Chand prop. Of M/s Shiv Coal Co. is that he has encroached upon the adjoining area measuring 181.33 sq.yards and also constructed one shed in the land belonging to the H.P.P.W.D. Trilok Chand Prop. has denied having made any encroachment. The learned counsel for the appellant has argued that the order of the Collector is vague because his findings are not based on facts. No demarcation has been carried out by the revenue authority and at the same time no evidence has been recorded. In the absence of demarcation and oral evidence the factum of encroachment is not fully proved. It is, therefore, considered appropriate that the case be remanded to the Collector with the direction that the demarcation of the disputed land be carried out through revenue agency and opportunity to lead evidence be given to the parties and decide the case afresh in accordance with the law. Accordingly same is ordered. The order of Collector dated 18.1.1991 is quashed.” 12. On 26.8.1991, the respondent-Estate Officer informed petitioner Tirlok Chand Sood vide Annexure-PM/A that he was given a plot of 200 sq.yards temporarily @ Rs.20/- per month for carrying the business of coal, and the rent was fixed temporarily because the commercial rent was required to be fixed after valuation from the 7 Public Works Department. The PWD, Division No.III, informed that he had a plot measuring 381.33 sq. yards, whereas, he was legally given 200 Sq.yards plot, the commercial rent for which was Rs.500/- per month, whereas the separate proceedings were with respect to unauthorized possession of 181.33 sq. yards. Since the petitioner had paid the rent @ Rs.20/- per month, for the authorised plot upto 5/90, thus there was a balance of Rs.1,80,600/- @ Rs.480/- per month w.e.f. May, 1990 to August, 1991. The petitioner was requested to make the payment of Rs.1, 80,6 00/-, failing which the matter would be forwarded to the government for consideration. 13. Since the amount was not paid, the respondent- Estate Officer sent eviction notice Annexure PO dated 22.10.91 with respect to a plot measuring 200 Sq. yards, below M.C. Latrines, Nabha Estate, Shimla-4, as the petitioner was continuing in possession of the public premises after his tenancy expired long ago and was holding over the same without any authority, thus it was unauthorized. He filed reply (Annexure PO/1) on the similar grounds that he was lawfully inducted as tenant and later on he was permitted to raise the structure on the said plot running his business. It was also contended that earlier the proceedings were initiated in the year 1972. The Estate Officer had issued show cause notice, but was withdrawn as he was found in authorized possession and now the respondents were estopped to take any action. The evidence was recorded. The respondent-Estate Officer vide his order dated 21.02.1997 (Annexure PQ) after considering the plea raised by the petitioner, passed the eviction order. His appeal was dismissed by the Commissioner vide order Annexure PU dated 1.12.1997 passed in Misc. Appeal No.195/1997 (Annexure PU) on the short ground of limitation. 8 CASE OF THE PETITIONERS IN THIS PETITION. The petitioner Trilok Chand sought the above reliefs and assailed the order dated 1.12.1997 (Annexure PQ) and also the order passed in appeal (Annexure PU) as violative of mandatory provisions of law as aforesaid. He had expired during the pendency of this petition, as such his legal representatives-the present petitioners were brought on record. Case of the Respondents The respondents have resisted the claim of the petitioner. According to the respondents, Trilok Chand Sood was granted lease of 200 sq. yards plot w.e.f. 17.8.1966 to 16.8.1967 as aforesaid. No fresh lease was ever executed nor was the old one extended. It shows automatically terminated. The petitioner was given plot for coal depot. It was decided that the rent be got reassessed because he was paying only Rs.20 per month. On reassessing he was directed to pay the arrears within one month, failing which he would be evicted. The decision of the government was conveyed vide letter Annexure R-1 dated 30.3.1976. The arrears were not paid. It was also reported that the petitioner has also encroached upon 181.33 sq. yards of Government land and had erected a shed (24’x16’) in addition to the permitted area (Annexure R/2). The earlier eviction proceedings were dropped in view of the Government decision. Since the petitioner did not avail the concession given by the Government and did not pay the arrears, the proceedings for his eviction were rightly initiated. In nut shell the respondents justified the eviction order and dismissal of his appeal as per the provisions of law and prayer for the dismissal of the petition. 9 Submissions before us: We have heard the learned counsel for the parties and examined the record of the case in detail. As already stated, Shri Vinay Kuthiala, learned counsel for the petitioner only pressed for the relief(s) as indicated in para-1 of this petition. He has vehemently argued that the petitioners are not in the possession of 181.33 sq. yards of land and they are in possession of the land or the area, measuring 200 sq. yards since their predecessor Sh. Puran chand, who had occupied it pursuant to the execution of lease deed which was only for one year and thereafter property was held over by said Tirlok Chand Sood on the same terms and condition till his death and after his death, it came to be occupied by his successors who have been paying the rent regularly. Thus, they are not the encroachers upon the land, but were in its legal possession. The tenancy was never determined. The respondents accepted the rent of the premises in question. Consequent upon the orders of the Government earlier eviction proceedings were dropped. The provisions of the Public Premises Act are not applicable in the facts in hand. Therefore, the assumption of jurisdiction by the respondent No.3 under the Act aforesaid was wrong and illegal. Therefore, the impugned orders are illegal, hence deserves to be set- aside. On the other hand, Sh. M.S. Chandel, learned Advocate General duly assisted by Mr. J.S. Guleria, learned Law Officer has countered the aforesaid argument on the ground that Shri Diwan Chand, predecessor of the petitioners was the encroacher on the land, after his lease had expired he could not take the benefit of the decision of the Government as he failed to deposit the balance amount assessed by the competent authority. Since he did not agree to this 10 arrangement, there was no occasion to recognize him or his predecessor in interest as tenant over the property and their tenancy stood already determined. The Estate Officer had legally passed the order and the deceased petitioner Diwan Chand also stood ejected from the land. Therefore, the reliefs sought by the petitioner(s) cannot be accepted. Vide order dated 21.5.1998 passed in C.M.P. No.38 of 1998 while confirming the interim stay, this Court had passed the following order:- “C.M.P.No.38/98. Heard. Interim order dated 8.1.1998 is confirmed subject to the petitioner’s depositing use and occupation charges regularly at the rate of Rs.200/- per month by 10th of every month. The arrears at the rate of Rs.200/- per month from September, 1990 to April, 1998 will be paid within four months from today. The application is disposed of. Copy Dasti to the parties.” During the pendency of the proceeding, an application (CMP No.990 of 2007) was moved seeking amendment by the petitioner on the ground that certain other persons (as named in para 4), who had been allotted/ given on lease premises at Nabha, Shimla, near the premises of the petitioners for carrying out their business were asked to vacate those premises and were allotted alternate sites to run their business in the newly constructed shopping complex. Therefore, his representation Annexure A-1 sent to the respondents is required to be considered on the same lines in the light of similarly situate persons. On the rival contentions of the parties, the following important points arise for determination: 1. Whether after the expiry of the period of lease, the valid tenancy is created in favour of the petitioners in the given circumstances? and 11 2. Whether the impugned orders are legally and factually sustainable? 3. What is the effect of ejectment of Sh. Diwan chand from the demised premises? Said Shri Trilok Chand Sood had also filed a civil suit in the court of Sub Judge Ist Class, Shimla and had also moved an application for injunction wherein he was granted status quo stay on 18.9.1997 against his eviction, but later on the application under Order 39 Rules 1 and 2 C.P.C. was dismissed on the ground of maintainability due to the statutory bar under Section 10 of the Act. The petitioner had also filed an appeal before the District Judge, Shimla, but in the mean time the petitioner invokes the extra- ordinary equitable jurisdiction of this court, on the premise that he was ready and willing to withdraw the suit for permanent prohibitory injunction as well as the appeal. But there is nothing on record to show that the petitioner either withdrew the appeal or the suit is pending before the civil court. As far as point No.1 is concerned, it is admitted that there was neither express nor implied agreement for the renewal of the lease. The renewal of the original contract is required to be obtained by following the specified procedure. An offer was made by the State Government vide Annexure R/1 for continuing the petitioner Diwan Chand ( deceased) in possession on the revised rent as assessed by the PWD, which was not availed of by the petitioner. On the face of specific stand taken by the respondents as contended in the letter Annexure R/1, nothing was done by said Sh. Diwan Chand, but in turn, he disputed the assessment of the revised rent by filing his objections. In these circumstances, in our opinion, his continuous possession was neither a creation of implied or express tenancy, for want of acceptance on behalf of the petitioner and also in absence of the compliance of the provisions of Article 299 of the 12 Constitution. The status of the original lessee and after his death that of the petitioners, is that of a trespasser and mere acceptance of the rent for the subsequent months in which the lessee continued to occupy the leased premises cannot be said to be a conduct signifying “assent” to the continuance of the lessee even after expiry of lease period, as held by the apex court in Shanti Prasad Devi and another vs. Shankar Mahto and others [AIR 2005 SC 2905]. Further, it has also been held in Smt.Shanti Devi v. Amal Kumar Banerjee [AIR 1981 SC 1550] where a lease is for the definite term it expires by efflux of time by reason of Section 111(a) of the Act as well as service of a notice under Section 106 is not necessary for determination of lease. More specifically when the petitioner did not accept the offer given by the Government. Thus our answer to point No.1 is in negative. In so far as, point No.2 is concerned, we have perused the record of the Estate Officer to come to the right conclusion. Vide letter dated 29.9.1991 [ Annexure PW2/1, (in case No.8/90 Page 90)], the decision of the Government was conveyed to the respondent No.3 to evict the petitioner Diwan Chand pursuant to which the notice dated 27.10.1991 for his eviction was issued with respect to the plot measuring 200 sq. yards. The evidence was led. The petitioner had not paid the rent w.e.f. July, 1990. Thus, keeping in view the entire facts, the final order of eviction (Annexure P2) was passed by the Estate Officer, the appeal against which was dismissed by the Commissioner on the short ground of limitation. It is pertinent to note that pursuant to the orders of the eviction, the original petitioner Shri Trilok Chand Sood was finally evicted from the demised property on 17.9.1997 by Shri M.L.Bhardwaj, Junior Engineer, under the authority of the Respondent Estate Officer who 13 was exercising his powers as Collector under the Act, and the material was taken into possession by preparing an inventory in the presence of the police, which fact has been suppressed by the petitioner(s) from the court. Therefore, in our considered opinion, the petitioner is not at all entitled for any relief sought and otherwise also we have found that the impugned order of his eviction passed by the Estate Officer and the order of dismissal of appeal by the Commissioner do not suffer from any illegality and is thus legally and factually sustainable. Since the original petitioner Trilok Chand Sood stood evicted and he suppressed the material facts from the court as such, the petitioners is/are not entitled for any relief as prayed for. Point No.2 and 3 are accordingly decided on account of the above findings and reasons therefor, the petition is dismissed with costs quantified at Rs.2,000/-. In view of the dismissal of the main writ petition, all the pending applications are also disposed of. The stay order dated 8.1.1998, confirmed on 21.5.1998 passed in CMP No.38/1998 is hereby vacated. (Deepak Gupta) Acting Chief Justice. June 15, 2007. (Surinder Singh) (Pds) Judge.