CWP No.4173 of 2011.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.4173 of 2011 (O&M) Date of Decision: 09.03.2011 **** Satwant Singh . . . . Petitioner VS. Deputy Commissioner, Sangrur & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Jatinder Singla, Advocate for the petitioner ***** SURYA KANT J. (ORAL) (1). This order shall dispose of CWP Nos.4173 & 4220 of 2011 as common questions of law and facts are involved in these cases. For the sake of brevity, the facts are being extracted from CWP No.4137 of 2011. (2). The petitioner seeks quashing of the order dated 13.08.2009 (Annexure P3) passed by the Collector, Sub Division, Sangrur ordering his conviction from Shop No.180 situated outside Dhuri Gate, Sangrur besides payment of Rs.12000/- towards rent/user charges upto 31st March, 2007 and Rs.1000/- per month along with interest @ 18% per annum for the illegal use of the premises, as well as the order dated 26.04.2010 CWP No.4173 of 2011.doc - 2 – (Annexure P4) passed by the Deputy Commissioner, Sangrur exercising the powers of the Commissioner-cum- Appellate Authority under the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1973 (in short, ‘the Act’) dismissing the petitioner’s appeal against the above-mentioned eviction order. (3). Shorn of the details, the petitioner was inducted as a tenant in the subject premises by the Nagar Council, Sangrur on payment of Rs.318.13 paise as monthly rent. The Municipal Council, Sangrur filed an eviction petition under Sections 4,5&7 of the Act for eviction of the petitioner from the subject premises on the ground that he has failed to pay the rent/damages despite the last notice dated 09.10.2006 and that he has sublet the premises without prior permission/consent of the Municipal Council to pro forma respondent No.4. The Municipal Council further averred that in terms of the Government notification dated 16.10.1998, the rent of the petitioner was liable to be increased to 20% after every 3 years but he failed to pay the enhanced rent also. It was averred that respondent No.4 was in an illegal and unauthorized possession of the shop in question. The petitioner filed his written statement dated 27.02.2008 and controverted both the pleas taken by the Municipal CWP No.4173 of 2011.doc - 3 – Council, maintaining that the entire rent upto 31.10.2006 stood paid vide receipt No.20 dated 03.10.2006. Denying the allegation of subletting, the petitioner averred that he is running the business of repairs of cycle, scooter tyres and tubes “in one part of the shop in question with the help of his worker Gurinder Singh s/o Dharam Singh….” and is doing the same work of cycle repairs “in the other part of the shop in question with the help of his worker namely Chander Shekhar s/o Sobha Ram….” (i.e. respondent No.4). (4). The parties led their respective evidence and on consideration thereof, the Sub Divisional Magistrate- cum-Collector, Sangrur came to the conclusion that the petitioner had sublet the subject premises to respondent No.4 (who was respondent No.2 before the Collector). The Collector while concluding so relied upon the report (Ex.A5) as a proof of exclusive possession of respondent No.4 as well as the fact that the notice dated 07.08.2006 (Ex.A2) was received by the sub-tenant coupled with the implied admission made by the petitioner in his cross- examination that the shop is being closed and opened by the pro forma respondent and the fact that the petitioner has parted with the possession in favour of the sub- tenant(s). The Collector accordingly passed the eviction CWP No.4173 of 2011.doc - 4 – order which has been further upheld by the Appellate Authority. (5). The aggrieved petitioner has approached this Court. (6). I have heard learned counsel for the petitioner at some length and perused the record. (7). Relying upon the principles laid down for the eviction of a tenant on the ground of ‘subletting’ under the “Rent Laws”, it is urged that the respondent-Municipality has no where averred that the petitioner has parted with any portion of the tenanted premises in favour of the sub- tenant for a consideration. It is argued that unless it is proved that the sub-tenant is in exclusive possession of the premises or part thereof and a right in his favour has been created in lieu of some consideration, the plea of subletting cannot be accepted. It is urged that mere presence of a stranger other than the tenant in the premises is no ground to presume that the premises has been sublet. Learned counsel relied upon various decision of this Court and of the Hon’ble Supreme Court including the followings to support his contentions:- a. Ashok Kumar & Anr. v. Shrimati Nirmal Kanta 2002 (1) PLR 659; b. Smt. Vidya Wanti and others v. Banarsi Dass and another, 2004(1) RCR 99; CWP No.4173 of 2011.doc - 5 – c. Dipak Banerjee v. Smt. Lilabati Chakraborty, 1987 CCC 265; d. Jagdish Prasad v. Smt. Angoori Devi, 1984(1) Rent Control Reporter, p-524 (8). In my considered view, the contentions raised on behalf of the petitioner are devoid of any merit and no case to call for any interference by this Court with the impugned orders, is made out. I say so for the reason that as per the survey report (Ex.A5) produced by the Municipality and is exhibited on the record, 18 shop-keepers were found to have sublet their respective shops to the sub- tenants whose particulars are also mentioned in the said report, the relevant part of which reads as follows:- “Report from the office of Director, Local Government, Punjab vide its Memo No.8/3/2004-5LG3/3874-3876 dated 7.8.2006 has directed that if the shopkeepers are sitting in illegal possession (Sublette) in the shops of Nagar Council, cases under PP Act be filed against them in the light of this notices have been issued to the following allottees and sublettes under the PP Act but out of them accept one or two, none of the shopkeeper has given the reply of this notice whose names are mentioned below against them (sic) cases are liable to be filed under CWP No.4173 of 2011.doc - 6 – the PP Act in the Court of Ld. SDM, Sangrur. Therefore, the expenses which will come on these cases, for engaging counsel is to be accepted. Sr.No . Name of allottee Name of sublettees Place 1. XX XX XX 7. Satwant Singh s/o Harbhajan Singh Gurinder Singh s/o Dharam Singh 2. Chander Shekhar s/o Sh. Sambhu Ram Outside Dhuri gate Sangrur xxx xxx xxx Against abovesaid persons shops/plots are liable to be got vacated under the PP Act, case regarding approval of expenses to be incurred upon these cases are for engaging counsel, is presented in the meeting.” xxx xxx xxx (Emphasis applied) (9). The petitioner neither raised any objection against the above-stated report nor disputed its contents. Contrary to it, the petitioner took the plea that the shop in dispute has been divided into two parts for the same business of “repairs of cycle, scooter tyres and tubes” and in one part he is being helped by respondent No.4 whereas in the other part his helper is Gurinder Singh s/o Dharam i.e. the sub-tenant in the connected case. The plea taken by CWP No.4173 of 2011.doc - 7 – the petitioner, on the face of it, is so fictitious and unnatural that it has to be rejected outrightly. If the petitioner himself was running one type of business in the entire premises where was the necessity or occasion for him to divide the single unit shop into two parts and to have two separate ‘helpers/workers’ for each part? It simply suggests that the petitioner had divided the shop into two parts and let out to two different sublettees. (10). The Municipal Council, besides the documentary evidence, has produced its official who had conducted the survey and gave the report who has re-iterated that the petitioner has completely parted with the possession in favour of the sub-tenants. (11). The petitioner, on the other hand, did not lead any cogent evidence to prove that the alleged sub-tenants were his employees/workers. No proof for payment of any salary etc. has been brought on record to substantiate his plea. The sub-tenants have also not stepped into the witness box. (12). The fact that the petitioner has handed over possession of the subject premises in favour of the sub-tenants who are neither his family members nor related to him in any manner is sufficient to infer that the petitioner has parted with the possession for consideration. CWP No.4173 of 2011.doc - 8 – (13). The payment of consideration between a tenant and sub- tenant is a secret arrangement to which the Municipality could have no access. In such like cases where the tenant fails to give any plausible explanation for parting with the possession, it would be justified for a Court to draw an inference of consideration. (14). Moreover, there is a concurrent finding of fact by the Collector and the Appellate Authority on consideration of the evidence on record. It is not a case of the evidence being misread or of no evidence at all, to term the findings as perverse. No interference by a writ court in exercise of its powers under Article 226 of the Constitution of India is made out. (15). Dismissed. Dasti. 09.03.2011 vishal shonkar (S u r y a K a n t) Judge