Punjab-Haryana High Court
M/S Amar Singh Jaspal Singh And Others vs State Of Punjab And Others on 5 September, 2012
Author: Mahesh Grover
Bench: Mahesh Grover
C.W.P. No.2531 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
C.W.P. No.2531 of 2011 (O&M)
DATE OF DECISION : 5.9.2012
M/s Amar Singh Jaspal Singh and others PETITIONERS
VERSUS
State of Punjab and others RESPONDENTS
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present:- Shri Puneet Sharma, Advocate for the petitioners.
Shri P.S.Thiara, Additional A.G. Punjab.
Shri V.K.Sandhir, Advocate for respondent-2.
Ms.Anjali Kakkar, Advocate for respondent-8.
Shri S.K.Pipat, Senior Advocate with Shri Manoj Pundir, Advocate
for respondent-9.
MAHESH GROVER, J.
After arguing the case at length, learned counsel for the petitioners states that the petitioners who are in occupation of the shops at the site in question, are willing to vacate the same within a period of four weeks from today. He has pointed out to the solitary grievance which is now being highlighted by him to say that since during the period in which the petitioners occupied the premises, there were certain payments made on account of the facilities created by the Market C.W.P. No.2531 of 2011 -2- Committee, therefore for this they need to be adequately compensated.
Upon considering the matter in its entirety and noticing the fact that an alternate vegetable market has already come up and it is only a few of the persons who have not yet opted out of the present site, I am of the opinion that the instant petition was obstructionist to say the least.
Consequently, the Court does not find any merit in the petition, but deems it appropriate to accept the prayer of the petitioners for grant of certain time to vacate the present site and avail of the alternate offer made by the Municipal Corporation.
In so far as the plea of compensation is concerned, the Municipal authorities may look into the grievance of the petitioners and pass an appropriate order in accordance with law.
At this stage, learned counsel for the petitioners states that even though he had made the aforesaid statement on the basis of which the above observations have been made, he does not stand by it and he prays that a detailed order be passed noticing the contentions. Consequently, the detailed order is as follows :-
The petitioners have impugned the order dated 31.12.2010 Annexure P-34 and order dated 17.9.2009 Annexure P-25 passed under the Punjab Public Premises (Eviction and Rent Recovery) Act, 1973 (hereinafter referred to as the Act) on the ground that proper procedure had not been followed leading to the passing of the said order and also for the reason that the shops and the land occupied by the petitioners did not fall within the definition of "public premises"
as defined under Section 2(e) of the Act.
Besides this, some other prayers have been made to quash the letter dated 2.2.1963 issued by the Secretary to Government, Punjab resuming the land comprised in Khasra No.1465 and transferring the same to the Municipal C.W.P. No.2531 of 2011 -3- Committee and also to quash the mutation entered in the name of the Municipal Committee. A prayer for damages has also been made for illegally demolishing some parts of the shops of the petitioners.
Even though the aforesaid prayers have been set out in the petition, yet while arguing the matter, learned counsel for the petitioners contended that the land belonged to Anjumal Islamia, Amritsar and is the Wakf property and therefore, the respondents could not have resorted to the proceedings under the Act against them. More than this aspect, with great emphasis it was projected before the Court that the petitioners have been carrying on the business of selling vegetables at the site in question for the last more than 50 to 60 years and that an attempt is being made by the respondents to relocate the vegetable market in an area which is in close proximity to the Ammunition Depot of the Army Forces and is thus a site not conducive for the said purpose. Repeated reference was made to this aspect that Vallah Ammunition Dump and the proposed site notified on 11.11.2004 falls within 1000 yards from the crest of the outer parapet of Vallah Ammunition Dump, District Amritsar and is thus, offensive to the sensitivities of the armed forces.
On a prior occasions, the petitioners had filed C.W.P. No.9712 of 2004 with the same grouse that the new site notified is not conducive for such operations because of its proximity to the Ammunition Dump. The writ petition was disposed on December 20, 2005 with a direction to the respondents to carry out the exercise of demarcation of the mandated radius of 1000 metres of the Ammunition Dump within two weeks from the date of the passing of the order. It was further directed that the members of the petitioners-union who fall beyond the radius of 1000 metres shall be informed by the competent authority within one week. These directions emanated from the fact that a number of the members of the petitioners-union had already vacated the premises in Mewa Mandi from where C.W.P. No.2531 of 2011 -4- they are operating at present to the new sites at the Mandi at Vallah. It was with this fact in mind that this Court granted the protection to those people who were granted sites in the new Mandi beyond the radius of 1000 metres.
The matter was challenged before the Hon'ble Supreme Court by way of an S.L.P. wherein the following order was passed :-
"Pursuant to our order dated 29.11.2006, the Major General, General Officer Commanding has passed an order on or
2.2.2007 in terms of Section 7(b)(i) of the Works 1903, inter alia directing :
I order the State Administration to give no owners of all structures and demolish immediate construction made subsequent to 11 November, 2 being illegal, as the same was carried out is the issue of Gazetted Notification dated 11 N 2004 which was duly published for public knowledge.
(a) No permission was sought by the parties from
per the Act.
(b) Public Notice under the Works of defence Act,
1903 was given and adequate warning had been given
means of issue of public notice and display of boards.
(c) FIRs have been lodged with Senior Superintendent of Police, Amritsar and the Deputy Commissioner, Amritsar. But in wake of ongoing Civil Writ during 2004-2005 and six Special Leave Petition 2006, the civil administration have allowed the constructions to go on continuously.
In view of the aforesaid order, we are of the opinion that C.W.P. No.2531 of 2011 -5- petitioners herein as also the concerned respondents, respondent Nos.4 and 5 would have to take a fresh matter. We, therefore, make it clear that we are not opinion on the correctness or otherwise of the order passed by the said authority.
We hope and trust that, in the interest of all concerned, a decision by respondent Nos.4 and 5 shall be taken as expeditiously as pos preferably within a period of three months from today.
The special leave petitions are disposed of with the aforementioned directions and observations." An application for clarification was filed subsequently and upon which the order reproduced here-below was passed :-
"Upon hearing counsel the Court made the following order :
The last sentence in our order dated 26.10.2007 which reads as under :
"They are directed to take necessary steps for reallocation of the Mandi within a period of six month from today.
Should be deleted and the same shall be substituted as under :
The statutory authorities shall be at the liberty to pass appropriate orders as may be found proper and necessary :
As are disposed of accordingly."C.W.P. No.2531 of 2011 -6-
Another clarification was then sought and upon which an order was passed, the relevant portion of which is extracted here below :-
"We modify the order to the extent that instead of respondent Nos.4 and 5 the State of Punjab, the Deputy Commissioner, Amritsar, the Director of Colonization, Department of Colonization, Punjab should be substituted. They are directed to take necessary steps for reallocation of the Mandi within a period of six months from today.
The order is modified to the extent indicated above. All the L.A.s are accordingly, disposed of."
It is pertinent to mention here that along side when these proceedings were going on, the army authorities conducted the demarcation and it is also relevant to state here that most of the members of the association had shifted their business to the newly set up vegetable market. It is thereafter that the proceedings under the Act were initiated against the petitioners on 14.7.2008 which resulted in passing of the impugned order. It is also not in dispute that the members of the petitiones-union have been allotted shops as a measure of re-habitation and an alternative site for carrying on the business at New Mandi. The Collector while dealing with the petition under the Act held that the lease stood expired and the petitioners were thus held to be in unauthorized occupation and ordered to be evicted.
As observed in the foregoing paragraphs of the order, learned counsel for the petitioners did not make much of any other issue except to say that the order under the Act could not have been passed since the land belonged to the Wakf Board, but could not substantively make out a case when confronted with the situation that the lease deed which the petitioners had executed, was with the C.W.P. No.2531 of 2011 -7- Municipal Corporation Amritsar, and it is on the basis of this arrangement that they had continued to enjoy the premises for above 50 years on a paltry rent of Rs.4/- per month which was enhanced to Rs.6/- and then to Rs.45/- only which was paid till 2004.
The entire thrust of the argument of the learned counsel for the petitioners was concentrated on the issue of the new site not being conducive on account of its proximity of the Vallah Ammunition Dump.
This plea of the petitioners is without any merit for the reason that pursuant to the earlier writ petition filed, the demarcation was carried out by the army authorities and the new site was to their satisfaction and most of the members of the petitioners-union seemed to have been accommodated and shifted to the new site where they have commenced their business activities. In an attempt at clever maneuvering the learned counsel for the petitioners did not even refer to another writ petition that the union had filed bearing C.W.P. No.2120 of 2010 and it was only with the assistance of the learned counsel for the respondents that this Court was made aware of these proceedings in which the Court recorded with satisfaction while modifying the earlier orders that the fresh measurement/demarcation had been carried out and had been accepted by the army authorities and the existing license-holders were being accommodated in the new notified area. The interim direction dated 8.2.2010 was thus modified and the respondents were permitted to proceed further in the matter.
If the entire gamut of the facts are to be seen in the backdrop of the present controversy, it is evident that substantial number of shop-keepers (i.e. members of the union) have shifted to the new site and it is without any justification that in the instant petition, the petitioners have made much hue and cry about the new site being in the vicinity of the Ammunition Dump.
That apart, the controversy having been settled to the satisfaction of C.W.P. No.2531 of 2011 -8- the army authorities, the same should not have been raised by the petitioners at all and to the mind of this Court, the petitioners are simply obstructionists who are clinging to the present site in order to frustrate the shifting of the vegetable market.
Such a practice has to be deprecated as the process of law cannot be used to subvert the project of public importance. This Court is consciously making this observation as during the entire course of the arguments spread out over a substantial period of time, the impugned orders were referred to only cursorily and the greater part of the argument was only confined to the latter aspect of the controversy pertaining to the site being in the vicinity of the Ammunition Dump. For these reasons, the Court is of the opinion that such a plea is being raised repeatedly only to show the intent of the petitioners who are out to defeat the legitimate action of the respondents in re-locating the Subji Mandi and accommodating the shop owners by offering them the alternate sites. In fact, the petitioners have enjoyed the arrangement virtually free of cost, as the last rent they were paying till 2004 was of Rs.45/- per month and in a place like Amritsar, such a rent can at best be termed to be enjoyment of a prime facility to carry on business without any corresponding liability of rent.
The Court is also constrained to notice that when it made its observations in the negative, learned counsel for the petitioners sought some time for seeking instructions telephonically. The office bearers of the petitioners-union as also one of the petitioners were present in Court and after some time when the matter was taken up again, it was stated before this Court that the petitioners would willingly vacate the premises if eight weeks time is granted to them, provided also, that the respondents be asked to determine some compensation on account of contributions made by the petitioners for a period of time to set up the facilities of toilets and market yard etc. C.W.P. No.2531 of 2011 -9- The Court was favourably inclined to accept the prayer of the petitioners and asked one of the petitiones who was present, as also the office bearers of the union to submit an undertaking to the effect that the sites would be vacated by them willingly and voluntarily within eight weeks as suggested by them. However, within minutes of stating so,, the petitioners made a somersault and resiled from their statement leaving the Court with no option, but to determine the controversy by passing the instant order.
For the reason that the issue has conclusively been settled and so far as the new site is concerned and there is no obstruction from the army authorities, I am of the opinion that the jurisdiction of this Court has unnecessarily been resorted to by the petitioners resulting in wastage of the time of this Court, as the petitioners could not have re-agitated the issue before this Court once again.
The petitioners cannot rake up the plea that the Municipal Corporation could not have initiated the proceedings as they are not the owners of the site in question. Such a plea is negated considering the fact that the lease deed was executed between the petitioners and the Municipal Corporation. If there is a dispute regarding title, the same can be gone into by the Court of competent jurisdiction. It is evident from the record that such proceedings are already going on and pending. The petitioners in any case cannot question the locus of the Municipal Corporation.
For the reasons that this Court views the instant petition to be acutely obstructionist of the plans of the Municipal Corporation to shift the vegetable market to a newly located site which attempt has been going on for a number of years and which has partially been executed by the members of the petitioners- union themselves by shifting to the new site, such a resistance shown by the petitioners in the instant petition can only be deprecated. It does not behove any union to play hot an cold at the same time. On the one hand, substantial number of C.W.P. No.2531 of 2011 -10- members of the petitioners-union have accepted the new sites, while at the same time, they are clinging to the present site through the agency of a few of the members of the union and causing not only loss to the respondents, but also frustrating the project of urban importance.
The petition is therefore, dismissed with costs of Rs.10,000/- upon each of the petitioners. Costs shall be paid to the Municipal Corporation, Amritsar.
(MAHESH GROVER)
September 5, 2012 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO