M.M.KUMAR, J. - (1.) THIS petition filed under Article 226 of the Constitution prays for quashing order dated 6.8.2003 (Annexure P.7) passed by the Collector, District Patiala, which has been upheld vide order dated 17.10.2007 (Annexure P.8) passed by the Commissioner, Patiala Division, Patiala. At the instance of the illegal occupier of the shop in dispute Upkar Singh earlier filed CWP No. 313 of 2008 and the orders impugned in the instant petition were upheld and the Civil Writ Petition was dismissed on 14.1.2008 (Annexure P.9).
(2.) THE Collector in his order dated 6.8.2003 has concluded that the claim of the petitioner and that of Upkar Singh and others was liable to be rejected. The proceedings initiated against Upkar Singh and petitioner alongwith others under Section 4(1) of the Punjab Public Premises and Land (Eviction and Rent Recovery ) Act, 1973 (for brevity 'the Act') have culminated in the finding that the petitioner who was the allottee and his successors have violated the provisions of the Act by transferring possession of the shop in question without prior permission of the Government. The claim of the petitioner that possession of the shop be returned to him because his predecessor Murli Dhar had entered into partnership deed with one Manmohan Singh who had subsequently delivered possession to Upkar Singh. It is admitted position that Upkar Singh has been in possession. It was further held that after more than 25 years the petitioner who is the successor of Murli Dhar cannot claim restoration of the possession of shop. It is after recording the aforementioned finding that the Collector has rightly observed that the order of eviction deserved to be passed in respect of petitioner, Upkar Singh and all others. The afore- mentioned order passed by the Collector has been upheld by the Divisional Commissioner, Patiala Division, Patiala. In the concluding para the following conclusion has been reached by him : " I have gone through the written arguments submitted on behalf of all the parties and have also gone through the record of the lower court. The perusal of the record shows that in this case the shop in question was leased out to Bakhtawar Mal. After the death of Bakhtawar Mal, the same had come into the possession of his legal heir Murli Dhar. Murli Dhar had entered into a partnership deed with Manmohan Singh on 13.4.78. Manmohan Singh had further transferred the possession of the shop in question to Upkar Singh and Kuldip Singh. They had further leased out the shop to one Rajinder Singh and others. Thus the shop in question had changed many hands. The shop in question is a government property. It is well settled that the government property could not be sub letted by a lessee without the approval of the Government. Shri Murli Dhar the successor of the original allottee has violated the provisions of the Act by transferring the possession of the shop in question without approval of the Government. The District Collector, Patiala has discussed the case in detail on every aspect of the case. He has rightly ordered to evict all the persons whosoever are in possession of the shop in question as all the concerned persons are in illegal possession of the shop in question. On the other hand, Shri Satish Kumar Gupta the legal heir of Murli Dhar is claiming that the possession of the shop be returned to him. The District Collector has rightly held that the legal heirs of Murli Dhar cannot claim the possession after the gap of more than 25 years. Moreover, the present appellants could not produce any cogent evidence to contradict the observations made by the District Collector, Patiala. In view of the above, I do not find any illegality or infirmity in the order passed by District Collector, Patiala as he has given his thoughtful consideration on every issue raised before him after hearing all the concerned parties and giving them sufficient opportunity to produce evidence in support of their claim. Thus there is no merit in the appeals filed in this case and both the appeals filed are hereby dismissed." (emphasis added) Mr. Amit Jhanji, learned counsel for the petitioner has argued that no laches could be imputed to the petitioner because father of the petitioner was allotted the shop on 13.4.1978 and was paying rent regularly. According to the learned counsel when Upkar Singh and Kuldip Singh obtained illegal occupation of the shop, his father lodged a FIR on 7.8.1978 but no action was taken against them. The petitioner could not pursue any litigation on account of repeated threats given by the illegal occupants. He further stated that proceedings under Section 145 Cr.P.C. were initiated and vide order dated 26.9.1978, SHO Kotwali was appointed as Receiver and on 14.8.1981 the Sub Divisional Magistrate has held that possession of the shop be restored to the father of the petitioner. The afore-mentioned order was challenged in Criminal Revision and the learned Addl. Sessions Judge, Patiala while allowing the petition set aside the order dated 14.8.1981. The Criminal Revision No.1722 of 1982 which was filed before this Court was dismissed by this Court on 5.1.1983. Thereafter the illegal occupants filed a suit for declaration and vide order dated 27.2.1986 the plaint was returned to them as they had not complied with the mandatory provisions of Section 80 of the Code of Civil Procedure, 1908 (Annexure P.4). Thereafter proceedings under the Act were initiated in 1989 which have now culminated in passing of the impugned orders. Therefore, it has been claimed that the petitioner or his father have continuously litigated over his rights and the findings recorded by the Collector as well as Divisional Commissioner that there is no possibility of restoring possession after 25 years suffer from complete lack of application of mind.
(3.) AFTER hearing learned counsel and perusing the impugned orders passed by the Collector and Divisional Commissioner, we are of the considered view that there is no merit in the petition. There are categorical findings recorded by the Collector as well as the Divisional Commissioner showing that the petitioner could not have handed over possession of the shop in question without prior permission of the State Government. The sub letting of public premises is impermissible. It is also clear that the shop in question had changed many hands either at the instance of the petitioner or his so called partner Manmohan Singh and other illegal occupants like Upkar Singh and others. Murli Dhar father of the petitioner was allotted shop in 1975 and after some time had entered into partnership with one Manmohan Singh who transferred possession of the shop to Upkar Singh and Kuldip Singh. If father of the petitioner was in actual physical possession alongwith his partner Man Mohan Singh then it remains a mystery as to how Man Mohan Singh alone could transfer possession to other illegal occupier. It is in these circumstances that the acts of the petitioner and his father, the original allottee have become illegal. Section 3 of the Act declare such a person as unauthorised to occupy the public premises. Section 3 of the Act reads, thus :- " 3. Unauthoriserd occupation of public premises - For the purposes of this Act, a person shall be deemed to be in unauthorised occupation of any public premises- a) Where he has, whether before or after the commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant, or b) 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, cased, whether before or after the commencement of this Act, to be entitled to occupy or hold such premises; or c) Where any person authorised to occupy any public premises has, whether before or after the commencement of this Act, - i) sub-let, in contravention of the terms of allotment, lease or grant, without the permission of the State Government or of any other authority competent to permit such sub-letting, the whole or any part of such public premises, or ii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such public premises. 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." ;