The High Court dismissed a writ petition challenging an eviction order and penalty imposed on a petitioner who held government land beyond an expired lease term, holding the petitioner as an unauthorized occupant liable to eviction and damages.
The writ petition was dismissed; the eviction order and penalty awarded remained in force.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CWP No.56 of 2012
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. No. 56 of 2012 Date of Decision: January 03, 2012
Phulia @ Manphool
...Petitioner
Versus
State of Haryana and others.
...Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: Mr. Pankaj Mehta, Advocate, for the petitioner.
Paramjeet Singh, J.
The instant writ petition has been filed by the petitioner (wrongly mentioned in the petition as “Phulia alias Manphool son of Ram Dhan” instead of “Phulia alias Manphool son of Gopal son of Ram Dhan”) under Articles 226/227 of the Constitution of India for quashing of order dated 07.12.2010 (Annexure P/1) passed by respondent No.3 – Sub Divisional Officer (Civil)-cum-Collector, Hisar, whereby the petitioner has been ordered to be evicted under Sections 4, 5 and 7 of the Haryana Public Premises and Land (Evicton and Rent Recovery) Act, 1972 (hereinafter referred to as the Act) and has also been ordered to pay penalty of Rs.6,64,528/- for use and occupation of the unauthorized possession of the land in dispute and for quashing of order dated 26.07.2011 (Annexure P/2) passed by respondent No.2 – Commissioner, Hisar Division, whereby the appeal of the petitioner has been dismissed.
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The brief facts of the case are that the State of Haryana through Sub Divisional Officer, Irrigation Department, Tehsil Adampur, District Hisar, filed an application under Section 4 of the Act before the Sub Divisional Officer-cum-Collector, Hisar for eviction of the petitioner from the land measuring 41 Kanals 2 Marlas bearing Khasra Nos. 14//5/2(0-13), 6 (8-0), 7/1 (0-8), 24/2 (4-16), 25 (8-0), 15//10/2 (2-6), 11(7-7), 20/2 (4-16), 21/1 (4-16), situated at Village Sadalpur, Adampur, on the ground that the Government of Haryana is owner of the aforesaid land and the petitioner is in unauthorised possession. The land was given earlier on lease and the lease was extended upto 31.03.1978. After the expiry of lease, possession of the petitioner is unauthorized.
In pursuance to the application, show cause notice was issued to the petitioner as per the rules and the provisions of the Act. The petitioner filed his written reply to the said notice. The petitioner has been trying to delay the proceedings on one pretext or the other. Out of the land measuring 41 Kanals 2 Marlas, in the year 1977-78, the land measuring 21 Kanals 17 Marlas was given to the petitioner – Manphool son of Gopal and land measuring 19 Kanals 5 Marlas was given to Shawan son of Khiya in auction on lease. But on expiry of the lease on 31.03.1978, the petitioner had not handed over the possession of the land in dispute. The petitioner had earlier filed a Civil Suit claiming ownership of the land in question. Civil Court had recorded a finding that the petitioner is in unauthorized possession and he can be evicted in due course of law.
After that, application under the provisions of the Act had been filed by the State of Haryana and the petitioner had been ordered to be evicted by the Collector vide order dated 07.12.2010 (Annexure P/1). The
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Collector has also ordered to pay penalty of Rs.6,64,528/- for use and occupation being in unauthorized possession of the land in dispute, within 30 days. In case of non payment of amount, 6% interest would be recovered from the petitioner. An appeal filed by the petitioner against order dated 07.12.2010 (Annexure P/1) had also been dismissed by the Commissioner vide order dated 26.07.2011 (Annexure P/2)
I have heard learned counsel for the petitioner at length and have perused the record.
Learned counsel for the petitioner submitted that notice issued under Section 4 of the Act is not a valid notice and since, the petitioner was a lessee, he cannot be evicted under the provisions of the Act. Furthermore, it is submitted that penalty can not be imposed under the provisions of the Act.
I have considered the contention of the learned counsel for the petitioner. The notice is legal and valid. Learned counsel admits that the lease was upto 31.03.1978. Thereafter, there is no extension in lease. It is also admitted fact on record that the petitioner had earlier filed a civil suit and in the said civil suit, the petitioner has been held to be in unauthorized possession as he is forcibly retaining the land after the expiry of lease period.
Section 3 of the Act defines as to who could be deemed to be in unauthorized occupation of any pubic premises. The same reads as under:“ 3. Unauthorized occupation of public premises – For the purposes of this Act, a person shall be deemed to be in unauthorized occupation of any public premises –
(a) where he has, whether before or after the
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commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant; or
Explanation:- For the purposes of clause (a), a person shall not merely by reason of the fact that he has paid any rent be deemed to have entered into possession as allottee, lessee or grantee.”
The determination of lease may become necessary only if a person had come in possession as lessee as provided in clause (b) of Section
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3 of the Act. In the present case, the petitioner had not come in possession as a lessee, rather he had entered into possession thereof otherwise in pursuance of any allotment lease or grant. The case of the petitioner squarely falls under clause (a) & (b) of Section 3 of the 1972 Act, and for the matter, it was not necessary for the Government to terminate the lease because there was none to be determined.
It would be appropriate to notice provisions of Section 116 of the Transfer of Property Act, 1882, which are as follows:-
“116. Effect of holding over – If a lessee or under lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lesser or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106”.
From the reading of the above provisions, two things are necessary (1) the lessee must be in possession after expiry of the lease and (2) the lesser or his representative should accept rent or otherwise assent to the lessee's continuing in possession. As such, the principal of holding over the lease will not apply in the present case.
In view of the above situation, I have given thoughtful consideration to the contention of the learned counsel for the petitioner. Sections 4 and 5 of the Act lay down the procedure for passing an order of eviction against an unauthorized occupant of public premises. Section 4 envisages issuance of show cause notice by the Collector as a condition
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precedent to the passing of an order of eviction. Section 5 declares that after considering the cause, if any, shown by the person upon whom notice under Section 4 has been served and the evidence, which he may produce in support of his plea, and after giving him reasonable opportunity of being heard, the Collector may make an order of eviction. Sub-section (2) of Section 7 empowers the Collector to pass an order requiring the unauthorized occupant of the public premises to pay damages. Sub-section (3) of Section 7 lays down that 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 not be made, and his objections, if any, and any evidence which he may produce in support of the same, have been considered by the Collector. In this case, compliance of provisions of the Act has been made.
Learned counsel for the petitioner further submitted that the penalty imposed by the authorities is without jurisdiction. I have considered the contention of the learned counsel for the petitioner. In spite of expiry of lease in the year 1978, the petitioner filed a civil suit against the State Government, that was dismissed. Possession was not handed over. A finding has been recorded in the civil proceedings that the petitioner is in unauthorized possession. Thereafter, Government had to resort to the provisions of the Act and this matter is still lingering on.
In view of the peculiar facts of the case, the authorities below have rightly held that the petitioner is liable to pay damages to the Government for unauthorized use and occupation of the land from the date, the petitioner has been declared unauthorized occupant of the land by the
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Competent Authority. The Collector, as well as, the Commissioner have rightly directed that such damages would be assessed from 1978. This is in the nature of damages/mense profits for unauthorized use and occupation of land of Government by the petitioner. It is not penalty as is being argued by the learned counsel for the petitioner. The power to restitute by way of damages is inherent in the quasi judicial authorities / Courts. Petitioner is in unauthorized possession for almost 33 years (since 1.4.1978).
The Hon’ble Supreme Court in the case of Indian Council for Enviro-Legal Action vs. Union of India reported in 2011(8) SCC 161 has applied the principles of : Finality of judgment, Restitution and Compound interest, Unjust Enrichment. Some of important paragraphs from the judgment are as under:-
“ 114. The maxim `interest Republicae ut sit finis litium' says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights.
169. Unjust enrichment has been defined as: "A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense." See Black's Law Dictionary, Eighth Edition (Bryan A. Garner) at page 1573.
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170. A claim for unjust enrichment arises where there has been an "unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience."
171. `Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.
172. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA)
173. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain.
177. American Jurisprudence 2d. Volume 66 Am Jur 2d
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defined Restitution as follows:
"The word `restitution' was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. As a general principle, the obligation to do justice rests upon all persons, natural and artificial; if one obtains the money or property of others without authority, the law, independently of express contract, will compel restitution or compensation."
178. While Section 3 (Unjust Enrichment) reads as under:
"The phrase "unjust enrichment" is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such
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action involves no violation or frustration of law or opposition to public policy, either directly or indirectly." 179. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.
223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction
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from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.”
The High Courts and Supreme Court of India have followed above principles in many cases. So, the inherent powers of the Courts / quasi judicial authorities and the principles of justice and equity are sufficient to enable an order directing payment of damages and interest thereon as has been directed by the Commissioner in this case. The power to
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order such damages as part of restitution, cannot be disputed, otherwise, there can never be restitution. Unscrupulous litigants as is in the present case cannot derive benefit of technicalities of law by agitating the matter time and again.
In view of the law laid down by the Hon’ble Supreme Court and the peculiar facts and circumstances of this case that the property of the Government has been illegally occupied by the petitioner, the petitioner has been rightly held liable to be evicted and pay damages for use and occupation of government property in unauthorised manner. In spite of number of rounds of litigation, the petitioner is not ready to vacate the possession, although he has lost legal battle in courts. I am not inclined to interfere in the findings recorded by the authorities in writ jurisdiction.
No merit.
Dismissed.
(Paramjeet Singh) Judge
January 03, 2012 vkd
2 issues framed by the court
Whether a petitioner holding land via an expired lease in unauthorized possession is liable to eviction and payment of damages under the Haryana Public Premises Act.
Whether the notice issued under the Act against a former lessee was valid given the determination of the lease.
Colour shows how this judgement treated each authority
Indian Council for Enviro-Legal Action vs. Union of IndiaReferred¶51
Indian Council for Enviro-Legal Action vs. Union of India reported in 2011(8) SCC 161 · Who else cites this
3 provisions across 2 enactments
Phulia alias Manphool
State of Haryana
Paramjeet Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
