JUDGMENT

MAHAVIR S. CHAUHAN, J.-- On petitioner's request Booth No.129, Sector-8, Panchkula was allotted to him by the Haryana Urban Development Authority (for short 'the HUDA') at a monthly rent of Rs.1800/- and a lease deed dated 07.12.1988 was executed in this regard. Later on, vide memorandum dated 02.04.1990 (Annexure P-2), on petitioner's request, he was given Booth No.28, Sector-10, Panchkula (for short 'the demised booth') in exchange of Booth No.129, Sector-8, Panchkula, on the same terms and conditions. The lease, as per Clause (1) of the lease deed, was for eleven months and after the expiry of that period a fresh lease deed was required to be executed. Clause (10) of the lease deed stipulated that the lease could be terminated by either party by giving one month's notice to the other party and according to Clause (15) thereof, any dispute pertaining to the tenancy was referable to the arbitration of Chief Administrator, HUDA, or any other officer appointed by him.

2. Petitioner did not pay the rent regularly and went in arrears of rent amounting to Rs.5,09,067/- upto July, 2001. He paid an amount of Rs.2,41,800/- thereby leaving a balance of Rs.2,67,267/- which was recoverable from him together with penal rent @ 18% in terms of Clause (4) of the lease deed. The petitioner, thus, did not prove to be a good tenant. Accordingly, the respondent served upon him notice dated 13.08.1997 (Annexure R-2) in terms of Clause (10) of the lease deed whereafter the tenancy, in favour of the petitioner, was, ultimately, terminated vide order dated 22.12.1997 (Annexure R-3).

3. After termination of his tenancy the petitioner failed to vacate the demised booth which led to passing of an order dated 09.02.1999 (Annexure P-4) declaring him an unauthorized occupant and ordering him to vacate the demised booth within 30 days of the issue of the order.

4. Petitioner challenged the order dated 09.02.1999 by way of an appeal which came to be dismissed vide order dated 12.06.2001 (Annexure P-7) in the following terms:

“Keeping in view arguments of the both the parties and facts of the case, it is clear that either party can terminate the lease by giving one month notice, and the Estate Officer, HUDA, Panchkula had issued one month notice for terminating the lease on 13.8.97 and the lease was terminated vide order dated 22.12.1997. Thus, it is clear that after termination of lease, the appellant is an unauthorised occupant of booth. Further, the appellant has failed to comply with the policy of HUDA to purchase the booth on current reserve price. Therefore, I find no merit in the present appeal and the same is rejected. Collector can obtain the possession of booth as per law and recover balance due rent alongwith interest and damages for unauthorised occupation of premises of HUDA as per law for which proceedings be initiated without any delay.”

5. To seek quashing of order dated 09.02.1999 (Annexure P-4) and order dated 12.06.2001 (Annexure P-7), the petitioner has invoked the provisions of Articles 226 and 227 of the Constitution of India by way of the instant Civil Writ Petition alleging that he had paid rent amounting to Rs.2,47,200/- vide receipts dated 08.02.1990, 08.06.1999 and 07.07.1999 as against an amount of Rs.2,52,000/- which was due from him as rent from December, 1989 to July, 2001 but the respondents did not give credit for the rent paid by him and they also claimed rent for the month of November, 1989 even though possession of the demised booth was given to him on 06.12.1989; and that the area comprised within the township of Panchkula having been declared a municipality vide notification dated 25.01.2001 (Annexure P-8), the petitioner could not be evicted from the demised booth except under the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short 'the Rent Act'). It is also claimed by the petitioner that the stipulation, regarding penal rent at the rate of 18% in the lease deed, is wholly unreasonable, unjustified, illegal and unenforceable.

6. In the written statement filed by the respondents, it has been added that the petitioner was given an option vide letter dated 11.01.2001 (Annexure R-1) to purchase the demised booth on average reserve price but he neither responded to the said offer nor paid the due rent thereby proved to be a chronic defaulter, therefore, his tenancy was terminated in accordance with the terms and conditions of the lease deed. It is also stated in the written statement that the petitioner did not show proof of payment of rent as claimed by him despite supply of details of the statement of accounts of the rent paid by him. It is also stated that the lease in favour of the petitioner commenced from 16.11.1989 but he entered possession of the demised booth of his own will on 06.12.1989, thus, rent was payable from 16.11.1989 itself.

7. We have heard learned counsel for the parties and have also perused the record.

8. Submissions have been put up on the lines of what is stated in the petition and the written statement and these need not be repeated here.

9. Rights and liabilities of the parties having been penned down and agreed to by both parties, the petitioner cannot be heard to say that he is not liable to pay rent from the date of commencement of the lease and that the respondents cannot claim penal rent at the rate of 18% on default of payment of due rent by him.

10. As regards the contention that the respondents have not given credit of the rent paid by the petitioner for certain period, it needs to be pointed out that respondents have taken a definite stand in the written statement that they had supplied to the petitioner statement of accounts of the rent paid by him but inspite of that the petitioner did not produce proof of the rent stated to have been paid by him. This assertion has not been controverted by the petitioner by filing a replication. During the course of hearing, we also repeatedly asked the learned counsel for the petitioner to show the receipts of payment of rent stated to have been paid by the petitioner but the learned counsel has failed to produce any such receipt. It leads to an inference that petitioner's claim in this regard is unfounded.

11. On petitioner's failure to clear the arrears of rent the respondents resorted to Clause (10) of the lease deed and terminated lease in favour of the petitioner vide order dated 22.12.1997 (Annexure R-3) after serving one month's notice dated 13.08.1997 (Annexure R-2). After termination of lease, the petitioner became an unauthorised occupant of the demised premises and notice of eviction dated 09.02.1999 (Annexure P-4) has been rightly served upon him in terms of Section 18(1)(b) of the 1977 Act. Section 18 of the 1977 Act reads as under:-

“18. Power to evict persons from premises/land of Authority or building constructed thereon.-- (1) If the Collector or any officer authorised by him is satisfied –

(a)    that any person authorized to occupy any premises of the Authority has –

(i)     not paid rent lawfully due from him in respect of such premises for a period of more than two months ; or

(ii)    sublet, without the permission of the Estate Officer, the whole or any part of such premises; or

(iii)   otherwise acted in contravention of any of the terms expressed or implied, under which he is authorized to occupy such premises; or

(b)    that any person is in unauthorized occupation of any land of the Authority or building constructed thereon, the Collector or any officer authorized by him may, notwithstanding anything contained in any law, for the time being in force, by notice served by post and if a person avoids service, or is not available for service of notice, or refuses to accept notice, then by affixing a copy of it on the outer door or some other conspicuous part of such premises/land or building or in such other manner as may be prescribed, call upon any person, who has committed a breach of the provisions of this Act or the rules framed thereunder, to vacate the said premises/land or building constructed thereon or demolish unauthorized construction and to appear and to show cause why he should not be ordered to restore to its original state or to bring it in conformity with the provisions of this Act or the rules framed thereunder, as the case may be, and if such person fails to show cause to the satisfaction of the Collector or any officer authorized by him within a period of seven days, the Collector or any officer authorised by him shall pass an order requiring him to vacate such premises/ land or building constructed thereon or demolish unauthorized construction and restore to its original state or to bring it in conformity with the provisions of this Act or the rules framed thereunder, as the case may be, within a further period of seven days.

(2) If the order made under clause (a) or clause (b) of sub-section (1) is not carried out, within a specified period, the Collector or any officer authorised by him at the expiry of the period of this order, shall evict that person from, and take possession of, the premises/land or building constructed thereon and shall for that purpose use such force as may be necessary and the cost incurred on such measures shall, if not paid on demand, being made to him, be recoverable from such person as arrears of land revenue.

(3) Even before the expiry of the period of seven days mentioned under sub-section (1), if the Collector or such officer authorised by him is satisfied that instead of vacation of premises/land or building constructed thereon or demolition of unauthorized construction, as the case may be, the person continues with the contravention, the Collector shall himself or any officer authorised by him take such measures as may appear necessary to give effect to the order and the cost of such measures shall, if not paid on demand, being made to him, be recoverable from such person as arrears of land revenue.

(4) If a person, who has been ordered to vacate any premises under sub-clause (i) or sub-clause (iii) of clause (a) of sub-section (1), within a period of seven days of the date of service of the notice, pays to the Estate Officer the rent in arrears or carries out or otherwise complies with the terms contravened by him to the satisfaction of the Collector or any officer authorised by him, as the case may be, the Collector or any officer authorised by him shall cancel his order made under sub-section (1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served upon him.

(5) The Estate Officer, or officer authorized by him may,-

(i)    confiscate any articles or material-found in the premises or public place, rehri parked at any public place, any articles or materials in the corridors of the shops, pavements, parking areas, parks, open spaces, road berms or any other public places;

(ii)    grant permission in writing, on such conditions as may be approved by him for the safety or convenience of persons passing by, or dwelling or working in the neighbourhood, and withdraw the permission, to any person to-

(a)    take up or alter the pavement or other materials for the fences of posts of any, public street;

(b)   deposit or cause to be deposited building materials, goods for sale, or other articles on any public street;

(c)    make any hole or excavation on, in or under any street, or remove materials from beneath any street, so as to cause risk of subsidence;  or erect or set up any fence, post, stall or scaffolding in any public street, and may charge fees according to a scale to be approved by him for such permission.

(6) Whoever does any of the acts mentioned in sub-section (5) without the written permission of the Estate Officer or any officer authorized by him, shall be punishable with a fine which shall not be less than two hundred rupees and more than two thousand rupees and the Estate Officer or the officer authorized by him may,-

(i)   after reasonable opportunity has been given to the owner to remove his material and he was failed to do so, remove or cause to be removed by the police, or any other agency, any such movable encroachments or overhanging structures and any such materials, goods or articles of merchandise and any such fence, pot, stall, or scaffolding;

(ii)   take measure to restore the public places to the conditions it was in before any such alteration, excavation, encroachment or damage.

(7) If the material specified in clause (i) of sub-section (6) has not been claimed by the owner within a fortnight of its having been deposited for safe custody by the Estate Officer, or if, the owner fails to pay the actual cost of removal or deposit in safe custody, the Estate Officer may have the material sold by auction at the risk of the owner, and the balance of the proceeds of such sale shall after deduction of the expenditure incurred by the Estate Officer be paid to the owner, or if the owner cannot be found, or refuses to accept payment, the balance shall be kept in deposit by the Estate Officer until claimed by the person entitled thereto, and if no claim is made within two years, the Estate Officer, may credit the amount to the fund of Authority.”

12. A glance across Section 18 of the 1977 Act reveals that power to evict an unauthorised occupant under this section has an over-riding effect over any other law as is evident from the words “notwithstanding anything contained in any law” used therein. Therefore, contention of the learned counsel for the petitioner that the petitioner could be evicted only under the provisions of the Rent Act and not under Section 18 of the 1977 Act, is absolutely misconceived and is, therefore, rejected.

13. It may not be out of place to state here that the petitioner cannot be allowed to continue in possession of the demised premises without payment of rent.

14. There is another aspect of the matter. According to Clause 15 of the lease deed, any dispute pertaining to the tenancy thereby created is referable to arbitration of the Chief Administrator, HUDA, or any other officer appointed by him. That being so, the writ petition is not maintainable as an efficacious remedy by way of arbitration was available to the petitioner.

15. Be that as it may, the order of eviction dated 09.02.1999 (Annexure P-4) and the order dated 12.06.2001 (Annexure P-7) dismissing petitioner's appeal against order dated 09.02.1999 are based on the order dated 22.12.1997 (Annexure R-3) whereby lease in favour of the petitioner was terminated and that order has not been challenged by the petitioner. In the situation challenge to the order of eviction cannot be entertained.

16. Thus, examined from all possible angles, case of the petitioner is found to be meritless. The petition, therefore, fails and is dismissed.

17. No costs.

Petition dismissed.

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