RSA No.4068 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. RSA No.4068 of 2008 (O&M) Date of decision: 17.07.2009 Amarjit Singh ... Appellant VERSUS The Punjab State & other ...Respondents CORAM: HON'BLE MR. JUSTICE VINOD K.SHARMA. Present: Mr. Vijay Lath, Advocate, for the applicant/appellant. *** VINOD K.SHARMA, J. (ORAL) CM No.3224-C of 2009 For the averments made in the application, the same is allowed, the order dated 05.03.2009 is recalled and main case is restored to its original number. RSA No.4068 of 2008 & CM No.12091-C of 2008 This regular second appeal is directed against the judgment and decree dated 8.1.2008, passed by the learned Lower Appellate Court, dismissing the suit for declaration, filled by the appellant/plaintiff. The plaintiff/petitioner filed a suit for declaration to challenge the RSA No.4068 of 2008 (O&M) -2- order passed by the learned Collector as affirmed by the Commissioner under the provisions of Punjab Public Premises Act. The contention of the petitioner was that the orders passed by the authorities under the Punjab Public Premises Act, were nullity as the petitioner was not in unauthorized possession of the properties as he was inducted as a lessee for a period of one year in the year 1972 and thereafter, he became statutory tenant by holding-over. Though, the learned trial Court accepted the stand of the plaintiff/appellant that he was tenant by holding-over and not an unauthorized occupant, the finding has been reversed by the learned Lower Appellate Court, by recording the following findings: - "Shri A.L.Verma, Advocate, made a vain attempt to argue that since the property in question is within the municipal limits of Municipal Council Ropar, no eviction order could be passed by the Commissioner in respect of the premises in question unless and until this premises is taken out of the purview of East Punjab Urban Rent Restriction Act which is applicable to properties located within the municipal limits of Ropar city. No such plea has been raised by the plaintiff in the plaint and, therefore, he cannot be allowed to raise any such issue which was not taken up in the plaint because the same would cause a serious prejudice to the rights of the defendants/appellants who would not get any opportunity to refute this contention of the plaintiff. Even otherwise, if any such plea was available to the plaintiff/respondent he could take up such a plea before the authority exercising the powers under the Public Premises Act that the premises in question is governed under the Rent Act and not under the Public Premises Act. The plaintiff could well RSA No.4068 of 2008 (O&M) -3- challenge the order passed by the Commissioner before a competent court of law, but he has not chosen so. It appears to me that the plaintiff knowing fully well that he may not get any relief from the court of law by giving a challenge to the order passed by the Commissioner has opted to file the present suit for declaration and injunction despite knowing fully well that no such suit is maintainable in the eye of law keeping in view the bar created under Section 15 of the Public Premises Act. However, still the plaintiff remained successful in continuing with the possession of the suit land measuring more than one acre by filing this suit in the year 2004 which was decided by the trial Court in December, 2005 and thereafter the appeal remained pending before the appellate court until its disposal by this Court. To be very fair, the learned counsel for the appellant sought to assail the eviction order passed under the Public Premises Act with the contention that the notice issued by the Authority under the said act is only in respect of a part of the suit land when the total area of 1.02 acres comes to 44431 Sq.ft., but the notice for eviction makes a reference to the area measuring 17705.25 Sq.ft. Though this contention of counsel for the respondent cannot be appreciated by this court because of the bar created under section 15 above, but even otherwise no prejudice has been caused to the respondent even if there was any defect in the notice stating the area of the land in respect of which the eviction proceeding are initiated against him. Plaintiff/respondent knew fully well that the defendants/appellants sought his ejectment from the entire land in respect of which he was granted lease in the year 1972. Further more even if there was some defect in the notice, the respondent could challenge the RSA No.4068 of 2008 (O&M) -4- eviction proceedings even on the ground of notice being faulty, but it is not open for the respondent to challenge the eviction order on the ground of ejectment order being faulty. The suit filed by the plaintiff is not covered under the provisions of Transfer of Property Act. The eviction order passed by the competent authority under the Public Premises Act is not open to challenge before the civil court as the jurisdiction of this court is barred. Even no injunction can be allowed by the civil Court in respect of any order passed under the Public Premises Act. The learned counsel for the plaintiff has failed to satisfy this court that the order passed by the Commissioner was open to challenge before the court on any of the grounds pleaded in the plaint. Therefore, the learned trial Court has committed a grave error of law in accepting the claim of the plaintiff and thus the findings of the trial Court on issues no. 1,2 and 4 are liable to be set aside being erroneous and illegal and I order accordingly." Learned counsel for the appellants contends that this appeal raises following substantial questions of law:- (i)Whether appellant-lessee is entitled for the protection keeping in view the principles of Section 116 of the Transfer Property Act being a lessee, who was initially inducted for a year in the year of 1972 and thereafter lessor-respondents accepted the lease money till 1998, that too enhanced from time to time. (ii)Whether jurisdiction of the Civil Court to adjudicate whether the occupant-appellant is a tenant or unauthorized occupant is not taken away by Section 15 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973." In support of the substantial questions of law referred to above, RSA No.4068 of 2008 (O&M) -5- the learned counsel for the appellant has vehemently contended that the learned Lower Appellate Court committed an error in reversing the finding of the learned trial Court, as it was proved on record that after the expiry of initial lease, the appellant was making regular payment towards the rent fixed and therefore, he was tenant by holding-over. It is further the contention of the learned counsel for the appellant that even though provisions of the Transfer of Property Act are not applicable to the State of Punjab, still the underlying principles are applicable, therefore, it was not open to the learned Lower Appellate Court to have reversed the finding of the learned Trial Court. This substantial question of law need not be gone into at this stage as the appellant has been non-suited on the ground that the jurisdiction of the Civil Court to entertain the challenge to the order passed under the Punjab Public Premises Act is barred. Sections 10 & 15 of the Punjab Public Premises Act read as under:- 10. Finality of orders: - Save as otherwise expressly provided in this Act, every order made by the Collector or Commissioner under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. 15. Bar of jurisdiction: - No Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of section 7 or the damages payable under sub-section (2) of that section or the RSA No.4068 of 2008 (O&M) -6- costs awarded to the State Government, or the corporate authority under sub-section (5) of section 9 or any portion of such rent, damages or costs. The learned counsel for the appellant contends that though the jurisdiction of the Civil Court to entertain the order is barred but when it is proved on record that the impugned order is nullity, in that event, the Civil Court would have the jurisdiction to entertain the appeal. In support of this contention, the learned counsel for the appellant placed reliance on the judgment of this Court in case of Ranga Singh V/s Gurbax Singh & Another, AIR 1961 Punjab 166, and Nahar Singh V/s Mohan Lal 1971 PLJ, 328 This Court in the judgments referred to above, was pleased to hold that the jurisdiction of the Civil Court is not ousted if the order impugned is nullity. The reliance has also been placed on the judgment of the Hon'ble Supreme Court in Dhruv Green Field Ltd. V/s Hukam Singh & Ors., 2002 (3) Civil Court Cases, 470 (S.C.), which is also to the same effect. There can be no dispute with the proposition of law as raised. It is well-settled law that if there is violation of the provisions of the Act or if the authorities act in violation of the statutory provisions, the order passed is void ab initio, and the jurisdiction of the Civil Court is not ousted. But what is to be seen in the present case is whether a wrong decision would bring the order within the ambit of nullity. The answer has to be in the negative. The dispute raised by the petitioner is not with regard to the findings recorded by the authorities under the Punjab Public Premises Act holding therein that the appellant was in unauthorized occupation of the property and his eviction was ordered. Wrong order on merits cannot be said to be a nullity. RSA No.4068 of 2008 (O&M) -7- It is only for this purpose that the statute bars the jurisdiction of the Civil Court to go into the merits of the controversy. Whether the petitioner was an unauthorized occupant, has been dealt with by the authorities under the Punjab Public Premises Act, the order, whether wrong or right, could not be challenged in the Civil Court. The second substantial question of law as raised is answered against the appellant. In view of the findings on the second substantial question of law, there is no necessity to answer the first question of law. No merit. Dismissed. (VINOD K.SHARMA) JUDGE July 17, 2009 shamsher