C.R. No. 904 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 904 of 2009 Date of Decision: 28.07.2010 Tek Chand .... Petitioner Versus Union of India and another ... Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present :- Mr. Narender Hooda, Advocate for the petitioner Mr. Puneet Jindal, Advocate for the respondents 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. Present petition is filed challenging the order dated 3.1.2009 passed by learned District Judge, Ambala as well as judgment dated 14.5.2007 passed by Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 thereby directing the petitioner herein to pay Rs. 5,04,211/- towards the fee/damages for the period 1.1.1996 to 30.8.2007 at the rate of Rs. 650/- per sq. yard. 2. The brief facts of the present case are that the petitioner herein was granted license to use the property in question and license was valid upto 31.12.1995. License was never renewed after 31.12.1995 nor petitioner-licensee paid any license fee after 1.1.1996. Respondents herein moved an application to the Estate Officer under Section 7 of the Public Premises (Eviction of C.R. No. 904 of 2009 2 Unauthorised Occupants) Act, 1971 to assess the damages/license fee and to direct the occupant to pay the arrears of license fee/damages w.e.f. 1.1.1996 and in the event of failure of the occupant to pay damages, eviction order may also be passed. 3. Both the Courts below vide impugned judgment have fixed license fee/damages on the basis of chart submitted before the Estate Officer. 4. Mr. Narender Hooda, learned counsel for the petitioner vehemently argued that license fee should have been assessed as per the policy of the Railway and both the Courts below have wrongly applied the license fee at the rate of Rs. 650/- per sq. yard. 5. The sole question involved before this Court is what should be the procedure to assess the damages/license fee if unauthorised person is in occupation of the public premises. 6. Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 reads as under:- 7. Power to required payment of rent or damages in respect of public premises.- (1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order. (2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order. C.R. No. 904 of 2009 3 (2A) While making an order under sub-section (1) or sub-section (2) the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with simple interest at such rate as may be prescribed, not being a rate exceeding the current rate of interest within the meaning of the Interest Act, 1978 (14 of 1978). (3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer. If the Government land is in unauthorised occupation and is used for religious purposes then the damages which are recoverable on that account are not to be commensurated with damages liable to be charges with respect to unauthorised occupation for commercial user. 7. This Court from the perusal of Section 7 is of the opinion that where a person in occupation is an unauthorised person then Estate Officer shall having regard to such principles of assessment of damages as may be prescribed assessed the damages on account of use of occupation of that premises. 8. Rule 8 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 reads as under:- 8. Power to estate officers. - An estate officer shall, for the purpose of holding any inquiry under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely :- C.R. No. 904 of 2009 4 (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) any other matter which may be prescribed. 9. From the perusal of Rule 8 it can safely be said that to assess damages for unauthorised use and occupation of any public premises, the Estate Officer shall take into consideration the rent that would have been recovered if the premises is let out for the rent for the period of unauthorised occupation of private persons and shall take into consideration the purpose, period, nature of occupancy of the public premises. Estate Officer may also consider any other material placed before him for the purpose of assessment of damages. 10 Undisputedly petitioner was granted license till 31.12.1995. Undisputedly license was never renewed. In view of this petitioner became unauthorised occupant after 1.1.1996. To assess the damages/license fee which can be recovered from the petitioner, unauthorised occupant, for the period he is in possession, procedure provided under Rule 8 is to be followed. However, both the learned counsel appearing before this Court very fairly stated that no evidence was produced before the Estate Officer or the Appellate Authority to show what rent could have been recovered, if the property in occupation of the petitioner was let out to a private person. In view of the above orders impugned can not be sustained in the eye of law. 11. The present petition is allowed. C.R. No. 904 of 2009 5 12. Order impugned are hereby quashed. Matter is remanded back to the Estate Officer to assess damages/license fee against the petitioner on the basis of procedure provided under Rule 8. Both the parties shall be at liberty to produce all the material evidence before the Estate Officer to prove the rate of rent on which property would have been let out w.e.f. 1.1.1996 till date. Meanwhile, petitioner shall deposit the damages with the respondent at the rate fixed by Estate Officer. Any payment made by the petitioner shall be subject to the final order passed by the Estate Officer. (ALOK SINGH) 28.07.2010 JUDGE reena