IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 1998 of 2011 ( O&M ) DATE OF DECISION : 01.11.2011 Surinder Kumar .... APPELLANT Versus Commissioner, Ambala Division, Ambala and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. D.S. Bali, Senior Advocate, with Mr. Shailendra Sharma, Advocate, for the appellant. * * * SATISH KUMAR MITTAL, J. This Letters Patent Appeal has been filed against the judgment dated 18.5.2011, passed by the learned Single Judge, dismissing the writ petition (CWP No. 8786 of 1992) filed by the appellant for setting aside the order dated 28.2.1986 (Annexure P-1) passed by the Collector, Ambala, evicting the appellant under the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (hereinafter referred to as `the Act'), as well as the order dated 27.5.1992 (Annexure P-2) passed by the Commissioner, Ambala Division, Ambala, whereby the appeal against the aforesaid eviction order of the Collector was dismissed. Though there is delay of 51 days in filing this appeal and the LPA No. 1998 of 2011 -2- appellant has filed an application (CM No. 5328 of 2011), for condoning the delay, but we have heard learned counsel for the appellant on merits, and gone through the impugned order, as well as the orders passed by the Collector and the Commissioner. In this case, the land in dispute is 3.31 acres, which was taken on lease by the predecessor of the petitioner in the year 1957, for agriculture purpose from the Central Government for one year. The lease was renewable every year. In the meanwhile, the land was transferred by the Central Government to the Municipal Committee, Ambala Sadar. It is admitted position that the lease was renewed upto 31.3.1982. Thereafter, it was not renewed, and by efflux of time, lease was determined with effect from 1.4.1982. A notice was given to the appellant and his brother to deliver possession of the land in dispute to the Municipal Committee. But the petitioner and his brother did not hand over possession of the land in dispute to the Committee. Consequently, in the year 1984, the Municipal Committee, Ambala Sadar, filed application under Sections 5 and 7 of the Act for ejectment of the appellant and his brother and for recovery of rent/damages. After providing full opportunity to the appellant and his brother to defend their possession by leading evidence and after hearing them, the Collector vide his order dated 28.2.1986 ordered the eviction of the petitioner and his brother from the land in dispute, while holding that their possession on the land in dispute since 1.4.1982 was unauthorised and illegal. The Collector also imposed a penalty on the appellant and his LPA No. 1998 of 2011 -3- brother at the rate of 50 paise per square yard, for the illegal use and occupation of the land. Undisputedly, against the above said order dated 28.2.1986, the appellant filed an appeal on 9.5.1988, i.e. after more than 27 months, though according to Section 9 of the Act, the appeal could have been filed within thirty days. It is also admitted position that with the appeal, no application for condonation of delay was filed. The Commissioner, vide his order dated 27.5.1992, dismissed the said appeal on limitation as well as on merits. Aggrieved against both the aforesaid orders, the appellant filed writ petition (CWP No. 8786 of 1992), which has been dismissed by the learned Single Judge vide order dated 18.5.2011. While challenging the orders dated 28.2.1986 and 27.5.1992, learned counsel for the appellant has made three fold submissions. Firstly, the lease in favour of the appellant and his brother was not legally determined in accordance with Section 3 (b) of the Act, therefore, the appellant and his brother could not be said to be in unauthorised and illegal occupation of the disputed land. Secondly, the lease was initially taken on yearly basis by the predecessor of the appellant from the Central Government, therefore, this lease could not have been determined by the Municipal Committee, Ambala Sadar, and the appellant, in that situation, cannot be said to have entered into unauthorised possession of the land in dispute. In support of this contention, learned counsel has relied upon a decision of this Court in Banwari Versus The State of Haryana and LPA No. 1998 of 2011 -4- others, 1983 PLJ 6. Thirdly, learned counsel argued that the Appellate Authority should not have dismissed the appeal on limitation, though it is admitted by the learned counsel that with the appeal, no application for condonation of delay was filed. We have considered the aforesaid three submissions made by learned counsel for the appellant and do not find any merit in the same. It has not been disputed before us that the Municipal Committee, Ambala Sadar, to whom the land was transferred by the Central Government, did not extend the yearly lease after 31.3.1982 and immediately thereafter, notice was given to the lessee to hand over the vacant possession of the land to the Municipal Committee. It is also admitted position that after 31.3.1982, no rent/lease money was every paid by the appellant or accepted by the Municipal Committee. In our view, in the present case, by efflux of time, the lease granted in favour of the appellant was determined and thereafter, possession of the appellant and his brother on the disputed land became unauthorised. The contention of learned counsel for the appellant that the lease was not determined legally in terms of Section 3 (b) of the Act is having no force. Section 3 (b) of the Act reads as under :- “For the purposes of this Act, a person shall be deemed to be in unauthorised occupation of any public premises, where he, being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, LPA No. 1998 of 2011 -5- to be entitled to occupy or hold such public premises.” This section only provides that for the purpose of this Act, a person shall be deemed to be in unauthorised possession of the public premises, where he, being a lessee, has by reason of the determination of lease in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises. In our opinion, clause (b) of Section 3 of the Act does not protect the case of the appellant, rather it goes against him. Once the lease has been determined, the lessee ceased to be entitled to occupy or hold the disputed land and he is deemed to be an unauthorised occupant of the public premises. In the present case, after the determination of the lease, the appellant did not pay any rent or lease amount. His possession, therefore, is wholly unauthorised and illegal and the application filed by the Muncipal Committee under Sections 5 and 7 of the Act to evict the unauthorised occupant of the public premises was clearly maintainable. The second contention raised by learned counsel for the appellant is also devoid of any merit. The judgment cited by the learned counsel is not applicable at all in the present case. In that case, the person entered into possession of the property much prior to the vesting of such property in the Government. In that situation, it was observed that such person who had entered into unauthorised possession of the property much prior to the vesting of such property in the Government cannot be said to be an unauthorised occupant under the Government. This is not the position LPA No. 1998 of 2011 -6- here. In the present case, the land was given on lease to the predecessor of the appellant on yearly basis by the Central Government, which was extended upto 31.3.1982 and thereafter, it was determined by efflux of time and possession of the lessee became unauthorised and illegal. The third submission made by learned counsel for the appellant that the Appellate Authority should not have dismissed the appeal on limitation also cannot be accepted. Admittedly, as per Section 9 of the Act, an appeal against the eviction order passed by the Collector could have been filed within thirty days, whereas in the present case, the appeal against the order of eviction was filed by the appellant after more than 27 months and that too without any application for condonation of delay. In our opinion, in such a situation, when there is no application to condone the delay in filing the appeal, the appeal could not have been entertained on merit at all and the same has been rightly dismissed on the ground of limitation. Thus, we do not find any illegality or infirmity in the orders, passed by the authorities below, as well as the order passed by the learned Single Judge. In the present case, the appellant and his brother are enjoying the illegal possession of the public land for the last more than 29 years, without payment of any rent or lease amount for use and occupation of the same. They are cultivating this 3.31 acres of land and are enjoying the fruits of the land. Due to prolonged litigation, they have gained unjust enrichment. The present case is a fit case, where the principle of restitution should be applied, in order to do the real and substantial justice between the LPA No. 1998 of 2011 -7- parties. The Collector has already imposed a penalty on the appellant and his brother at the rate of 50 paise per square yard, for the illegal use and occupation of the land, and this penalty, if calculated comes out to approximately ` 4.50 lacs, which in these days of high inflation is inadequate. It is also undisputed position that till date, no amount has been recovered from the appellant and he is enjoying the illegal possession of 3.31 acres of land. In these circumstances, we direct the Collector, Ambala, to immediately implement the eviction order dated 28.2.1986 (Annexure P1) passed against the appellant and his brother, put the Municipal Committee, Ambala Sadar, in possession of the land, and submit the compliance report to this Court. Since the Municipal Committee, Ambala Sadar, has been unnecessarily put to contest this litigation at various stages and the appellant along with his brother have enjoyed the illegal possession for a long time and consumed the valuable time of the Court, we dismiss this appeal with costs, which are assessed at ` 1,00,000/-. ( SATISH KUMAR MITTAL ) JUDGE November 01, 2011 ( PARAMJEET SINGH ) ndj JUDGE