IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 15264 of 2007 DATE OF DECISION : 23.12.2008 Shadi Lal .... PETITIONER Versus Panchayat Samiti Mukerian and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. S.K. Sharma, Advocate, for the petitioner. Mr. K.S. Dadwal, Advocate, for the respondents. * * * SATISH KUMAR MITTAL , J. The petitioner, who was a tenant of Panchayat Samiti, Mukerian - respondent No.1, has filed this petition under Articles 226 and 227 of the Constitution of India for quashing the order dated 19.5.2004, passed by the Sub Divisional Magistrate, Mukerian, exercising the powers of the Collector under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (hereinafter referred to as `the Act'), ordering the eviction of the petitioner from the shop in dispute, and recovery of amount of due rent, amounting to Rs.2,20,548/- from the petitioner as arrears of land revenue; as well as the order dated 15.2.2005, passed by the Deputy Commissioner, Hoshiarpur, exercising the powers of the Commissioner CWP No. 15264 of 2007 -2- under the Act, dismissing the appeal of the petitioner against the aforesaid order. The brief facts of this case will show how a tenant of a local body, by mis-using the provisions of law, remained in possession of a shop let out to him in a public auction for 16 years without payment of a even a single penny as rent. In the present case, in an open auction, the petitioner took shop No. 13 on rent from respondent No.1 Samiti at the monthly rent of Rs. 825/- being a highest bidder. He took possession of the shop on 1.1.1988. As per the terms and conditions of the auction, the rent was to be paid by the tenant by 10th of every month. The rent was also to be increased by 10% every year. The petitioner did not pay any rent after taking possession of the shop, in spite of the notices issued to him in this regard. Ultimately, respondent No.1 Samiti was constrained to file an application for ejectment under the provisions of the Act in April, 1993 and for recovery of the rent due, amounting to Rs. 62,557/- at the rate of Rs. 825/- per month, including 10% annual increase for each year, in the rent as per the agreement between the parties. In the said ejectment application, the petitioner was duly served. He appeared before the Collector and contested the application. Both the parties were directed to lead evidence in support of their respective version. Respondent No.1 Samiti examined two witnesses and produced several documents. The petitioner was afforded many opportunities to cross examine the witnesses and lead evidence, but on three consecutive dates i.e. CWP No. 15264 of 2007 -3- on 15.3.1994, 18.3.1994 and 21.3.1994, neither the petitioner nor his counsel came present. Ultimately, the Collector proceeded the ex-parte proceedings against the petitioner and decided the ejectment application vide order dated 29.3.1994, ordering the eviction of the petitioner and further ordering the recovery of the rent upto 31.3.1993, amounting to Rs. 62,557/- as arrears of land revenue. Against the abovesaid order, the appeal was filed by the petitioner in June, 1994. The said appeal remained pending for four years because of non-availability of the record of the Collector. Ultimately, vide order dated 21.1.1998, the case was remanded to the Collector, Mukerian, to decide the case after affording one more opportunity to the petitioner to rebut the evidence led by respondent No.1-Samiti. After the remand, the file could not be re-constructed due to non-cooperative attitude of the counsel for the parties and the original file was not available, as the record of the case was destroyed in a fire incident at Record Room, Hoshiarpur. Therefore, the Collector, Mukerian, vide letter No. 2369 dated 29.7.1988 directed respondent No.1-Samiti to file a fresh case. Accordingly, respondent No.1-Samiti, after serving notice to the petitioner for payment of arrears of rent of Rs. 2,20,548/- from 1.1.1988 to 30.4.2000, filed a fresh eviction application under the provisions of the Act, before the Sub Divisional Magistrate, Mukerian, exercising the powers of the Collector. In the said ejectment application, after the evidence led by respondent No.1 Samiti, the petitioner was afforded opportunity to adduce evidence, but in CWP No. 15264 of 2007 -4- spite of availing several opportunities, the petitioner, yet again, did not lead any evidence in support of his claim. When the case was fixed for arguments, the petitioner only filed written arguments. The Collector, after hearing both the parties, ordered the ejectment of the petitioner, vide impugned order dated 19.5.2004, while observing as under : “I have perused the evidence brought on the file and also carefully gone through the written arguments submitted by the counsel for the petitioner. From the documentary evidence it is clear that the Panchayat Samiti Mukerian is the owner of the shop no. 13. The respondent in his written statement admitted that he is in possession of the shop in dispute. The counsel for the petitioner argued that shop no. 13 was leased to the respondent on a monthly rent of Rs. 825/- per month with a stipulation of 10% increase in rent every year and respondent defaulted in making payment of Rs. 2,20,548/- upto 30.4.2000. The respondent has failed to comply with the terms and conditions of the agreement executed between the parties. No evidence was produced by the respondent to controvert this issue. I am fully agree with the argument of the petitioner's counsel that the respondent also breached the terms and conditions laid down in the agreement. The respondent is in the arrears of rent amounting to Rs. 2,20,548/- and he is liable to pay the same.” CWP No. 15264 of 2007 -5- Against the aforesaid order, an appeal was filed by the petitioner before the Commissioner. On 4.10.2004, during the pendency of the appeal, possession of the shop in question was taken by respondent No.4. The Commissioner, vide his order dated 15.2.2005, dismissed the appeal. Hence, this writ petition. After hearing counsel for the parties and going through the impugned orders, we do not find any ground to interfere in the impugned orders, in exercise of the writ jurisdiction of this Court. Undisputedly, in a public auction, the petitioner had taken the shop in question on rent from respondent No.1 Samiti at the monthly rent of Rs. 825/-. Though the petitioner has denied that there was no stipulation of 10% yearly increase in the rent, but a perusal of the terms and conditions of the auction (Annexure P-10) shows that there was a clause providing 10% yearly increase in the rent. Admittedly, possession of the disputed shop was taken by the petitioner on 1.1.1988. Thereafter, from the said date till 4.10.2004, when possession of the shop was taken by respondent No.4, not even a single penny was paid by the petitioner towards the rent. Neither during the course of arguments nor in the petition itself, any sufficient reason has been given by the petitioner for non-payment of rent for such a long period. The petitioner was taking frivolous plea that there was no provision for increase of rent and because of that, he was not paying the rent, as respondent No.1 Samiti was demanding the rent after adding 10% yearly increase in the rate of rent. This explanation appears to be unjustified, because not even for a single day, the CWP No. 15264 of 2007 -6- petitioner has paid any amount of rent. In this petition, the petitioner has taken various pleas that his ejectment order as well as the order of recovery of due rent as arrears of rent are discriminatory and violative of Articles 14 and 16 of the Constitution of India, against the principles of natural justice, abuse of powers, the authorities who have passed the impugned orders have no jurisdiction and the second application for eviction was not maintainable. In our opinion, a tenant, who has not even paid a single penny after the inception of tenancy and enjoyed possession for 16 years, is not entitled to be given a hearing on these frivolous pleas, particularly in exercise of the inherent jurisdiction of this Court under Article 226 of the Constitution of India. Counsel for the petitioner argued that the Sub Divisional Magistrate was empowered to perform the function of the Collector under the provisions of the Act only vide Notification No. S.O. 44/P.A. 31/73/ S.2/2000 and the said notification was published in the Official Gazette on 13.6.2000. Therefore, when the second application was instituted on 2.6.2000, the Sub Divisional Magistrate was having no jurisdiction to entertain the same. We do not find any force in the contention of learned counsel for the petitioner. The aforesaid notification was issued and published in the Official Gazette on 13.6.2000, but when the notice of petition was issued and the order of ejectment was passed, the Sub Divisional Magistrate was authorised to perform the function under the Act as a Collector and he was very much competent to pass the impugned order. CWP No. 15264 of 2007 -7- Therefore, there is no jurisdictional error, as far as the order of eviction passed by the Sub Divisional Magistrate, Mukerian, exercising the powers of Collector under the Act, is concerned. From the facts stated above, it is clear that the petitioner was always provided more than sufficient opportunities to lead evidence in support of his claim, but he never availed such opportunities, because evidently he was having no evidence in support of his claim. In our opinion, by adopting the delaying tactics and by not leading evidence in support of his claim in spite of availing several opportunities, the petitioner has mis- used the process of law with intention to delay the proceedings and to take illegal and undue advantage of enjoying possession without payment of rent. Even in this Court, the petitioner has taken more than three years. This is the second petition filed by him. Earlier, CWP No. 9620 of 2005 came up for motion hearing on June 17, 2005, which was adjourned to 1.7.2005, on the request made by counsel for the petitioner. On 1.7.2005, it was again adjourned to 1.8.2005, as no one was present on behalf of the petitioner. On 1.8.2005, counsel for the petitioner prayed for adjournment to seek instructions from his client as to whether he has any evidence of payment of rent since 1.1.1988. The case was then adjourned to 14.11.2005. On that day, the case was again adjourned to 7.3.2006 on the written request made by counsel for the petitioner. On 7.3.2006, counsel for the petitioner again requested for more time to file additional documents, but the prayer was declined and the writ petition was dismissed as withdrawn with liberty to the CWP No. 15264 of 2007 -8- petitioner to file fresh one, if so advised, by appending necessary documents and complying with the orders made in the writ petition. Thereafter, the instant second petition has been filed by the petitioner. In this petition also, no document regarding payment of rent since 1.1.1988 has been filed. Even in this case, the petitioner was not interested to argue the case and was seeking adjournment on one pretext or the other. On 9.9.2008, no one was present on behalf of the petitioner, but in the interest of justice, the case was adjourned to 17.11.2008. On that day, a request for adjournment was made. The request was allowed and case was adjourned to 3.12.2008 subject to payment of costs. Thereafter, on 3.12.2008, the case was argued. All these facts show that the petitioner is mis-using the process of law. In view of the above, there is no merit in the instant petition and the same is hereby dismissed with costs of Rs. 2,000/-. ( SATISH KUMAR MITTAL ) JUDGE December 23, 2008 ( JASWANT SINGH ) ndj JUDGE