LPA No. 1623 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 05.09.2011 LPA No. 1623 of 2011 Balbir Singh …..APPELLANT VERSUS State of Punjab etc. ….. RESPONDENT LPA No. 1624 of 2011 Bhajan Singh …..APPELLANT VERSUS State of Punjab etc. ….. RESPONDENT CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Ms. Alka Sarin, Advocate, for the appellant. *** AUGUSTINE GEORGE MASIH, J. By this order, we propose to dispose of two appeals i.e. LPA No. 1623 of 2011 titled as Balbir Singh vs. State of Punjab etc. and LPA No. 1624 of 2011 titled as Bhajan Singh vs. State of Punjab etc. as in these appeals challenge is to a common judgment passed by the learned LPA No. 1623 of 2011 2 Single Judge dated 01.07.2011 allowing the writ petitions preferred by the State of Punjab. For convenience and disposal of these appeals, facts are being taken from LPA No. 1623 of 2011. The facts are not in dispute, according to which, the land, which is owned by the respondent-State of Punjab, was leased out to the appellants/their predecessors' for agricultural purpose in the year 1973 for a period of one year with a stipulation that the lessee shall pay 1/3rd of the share of the produce. The appellants continued with the possession of the land and continued to comply with the conditions of the lease deed by paying the 1/3rd share of the produce despite there being no specific and express extension of the period of lease by the respondents. A petition under Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (hereinafter referred to as PP Act') was filed by the respondents against the appellants/their predecessors on the ground that their possession had become unauthorized after the initial termination of the lease period i.e. in the year 1974 before the Collector. This application was dismissed on 30.11.1983 holding that the possession of the appellants was not unauthorized as they were paying the lease amount continuously which has been accepted it would amount to extension of lease period till the appellants continued to pay the lease amount and the respondents continue to accept the same. The appeal preferred against the said order was dismissed by the Commissioner, Ferozepur Division. A fresh notice was issued by the respondents on 17.04.1983 demanding eviction of the appellants from the land in question and also expressing the intention to resume land for personal cultivation from Kharif 1983. The appellants did not vacate the land and offered to continuously LPA No. 1623 of 2011 3 paying the lease amount, which was not accepted by the respondents. The respondents again filed an ejectment application under Section 5 of the PP Act in the year 1987 before the Collector, which was dismissed by holding that after the dismissal of the appeal by the Commissioner in the earlier ejectment application, the present application was not maintainable and would be barred by the principle of res-judicata instead other action may be taken than the one for eviction under the PP Act. The Commissioner also reiterated the same position leading to the challenge by the respondent-State of Punjab of these orders in the writ petitions, which were allowed by the learned Single Judge vide judgment dated 01.07.2011 which is under challenge in these appeals. It is the contention of the counsel for the appellant that second application under Section 5 of the PP Act by the owner against the lessee on the ground of unauthorized possession is not maintainable when earlier application has been dismissed holding therein that the possession was not an unauthorized one. Her further contention is that the proceedings having been finalized under Section 10 of the PP Act, second petition would not be maintainable on the same ground of unauthorized occupation. Apart from this, she contends that the appellants are not liable to pay, in case they are held to be in an unauthorized possession, any amount beyond the lease amount on which the initial lease was granted in their predecessors' favour. All these having been held against them by the learned Single Judge erroneously and cannot be sustained she contends and prays that the present appeals deserve to be allowed by setting aside the impugned order passed by the learned Single Judge. We have heard the counsel for the parties and have gone through the records of the case. LPA No. 1623 of 2011 4 The first contention of the counsel for the appellant that the second petition under Section 5 of the PP Act would not be maintainable after the first having been dismissed holding therein that the appellants were not in unauthorized possession of the land, is not acceptable. The first application was rejected on the ground that the lessees had been making payment of the lease amount, which was duly accepted by the respondents, which showed that there had been a continuation of lease and they were holding over the land as lessees. This apparently meant that the lease agreement, which was initially executed, continued by virtue of the receipt of the lease amount and, therefore, was a lease from year to year basis. After the year 1983, no lease amount has been received by the respondents although an offer to make payment initially for the land was made by the appellants. After the expiry of one year from the date of notice i.e. 17.04.1983, whereafter no lease amount was accepted by the respondents, fresh cause of action arose for the respondents to initiate action for eviction, especially when in the notice, the land owner i.e. the State of Punjab expressed its intention to start cultivation on its own. The second petition, thus, is not barred by the principle of res-judicata as it is a distinct and different cause of action. It would not be out of way to mention here that after 1983 when the respondent-State refused to accept the lease amount, no serious effort was made by the appellants to deposit the lease amount as per the provisions as contained in the PP Act itself. The plea that the proceedings under Section 10 having been finalized under the PP Act, second petition would not be maintainable, also cannot be accepted in the light of the above. The next contention raised by the counsel for the appellants that the appellants would only be liable to pay the lease amount at the rate, LPA No. 1623 of 2011 5 which was initially fixed by the respondents and nothing more for the period they have utilized the land, also cannot be accepted. It is not in dispute that since the year 1983, the appellants have not paid any lease amount despite utilizing the land for agricultural purposes for which it was initially leased and had reaped and enjoyed the fruit. A perusal of the judgment would show that during the course of hearing of the writ petition, counsel for the appellants there had stated that the appellants will be willing to give rent @ ` 80/- per acre i.e. at the same rate at which it was given to them when the initial lease was granted in their favour and they were not willing to pay anything beyond that. Under these circumstances, learned Single Judge, while referring to the judgment of the Supreme Court in the case of Shangrila Food Products Ltd. and another vs. Life Insurance Corporation of India and another, 1996 SCC (5) 54 and applying the ratio thereof, had directed the Collector, Muktsar to determine the mesne profit with a rider that the enquiry shall be summary and shall conclude within a period of three months' from the date of receipt of the records from the Registry of the High Court subject to the appellants provisionally depositing twice the amount of what was specified in the lease deed initially executed i.e. more than three decades earlier which in our view is reasonable and just and challenge to this by the appellants reflect their greed and mindset . Counsel for the appellants has agitated the issue that the affidavits filed in the Court by the parties in the writ petition were also to be taken into consideration by the Collector, Muktsar which cannot be permitted merely deserve to be mentioned and rejected as liberty has been granted to the appellants to contest and join enquiry as regards the determination of the mesne profit, there is thus no prejudice caused to the appellants. LPA No. 1623 of 2011 6 We are in total agreement with the directions issued by the learned Single Judge. The appellants are in possession of the land in question since the year 1983 without paying any rent/lease amount, therefore, the learned Single Judge was fully justified in passing such directions. It requires to be mentioned here that it is the bounden duty and obligation of the Court to neutralize any unjust enrichment and undeserved gain made by any party by holding on unauthorizedly some property, which, in law, was not entitled to. A person, who is in wrongful possession, should not only be removed from that place as early as possible but be compelled also to pay for wrongful possession of that premises by imposing fine, penalty and costs and any leniency would seriously affect the credibility of the judicial system. No litigant can derive and can claim benefit from the mere pendency of a case in a Court of law and the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of Courts. This has been held by the Hon'ble Supreme Court in its order dated 18.07.2011 in IA No. 36 and IA No. 44 in Writ Petition (C) No. 967 of 1989, Indian Council for Enviro-Legal Action vs. Union of India and others. We do not find any merit in the present appeals and, therefore, dismiss the same by upholding the order dated 01.07.2011 passed by the Single Judge. ( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH ) JUDGE JUDGE September 05, 2011 pj LPA No. 1623 of 2011 7