Himachal Pradesh High Court
Balbir Singh vs Of on 26 April, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 172 of 2014.
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Judgement reserved on: 06.04.2016 Date of decision: April 26, 2016.
Balbir Singh ...... Appellant.
Vs.
of
State of H.P. & ors. ..... Respondents
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? 1
Yes For the appellant : Ms. Ritta Goswami, Advocate. For the respondents : Mr. Anup Rattan and Mr. Romesh Verma, Additional Advocate Generals with Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 to 3.
Respondent No.4 ex-parte.
Mr. Dushyant Dadwal, Advocate, for respondent No.5.
Tarlok Singh Chauhan, Judge.
The appellant is writ- respondent No. 5 (hereinafter referred to as the appellant), who is aggrieved by the judgement passed by the learned writ court, whereby the writ petition filed by writ petitioner (respondent No. 5 herein) (hereinafter referred to as the writ petitioner) came to be allowed and possession of shop No. 17 was directed to be handed over to writ petitioner, whereas shop No. 18 was directed to be handed over to the appellant. Whether the reporters of the local papers may be allowed to see the Judgment? ::: Downloaded on - 15/04/2017 20:10:39 :::HCHP
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2. The facts in brief may be noticed. The writ petitioner .
claimed that he had been running a Khokha (Kiosk) since 1983 at Jawalamukhi in District Kangra on the land owned by the Panchayat Samiti (for short 'Samiti'). In August, 1997 the Samiti undertook construction of a shopping complex and entered into an agreement of with the writ petitioner agreeing therein to allot a shop to him subject to his vacating and removing the Khokha illegally raised by him.
3. rt The shopping complex was to be constructed within five months and thereafter the allotment was to be made on the basis of seniority. However, the shop was not allotted within the time frame, constraining the writ petitioner to initially issue a notice to the Executive Officer of the Samiti, Dehra and thereafter file a petition before the Deputy Commissioner, Kangra at Dharamshala. The Deputy Commissioner ordered an inquiry to be conducted by the Sub Divisional Officer, Dehra, who in furtherance thereof, submitted his report in August 1998.
4. However, before the Deputy Commissioner could decide the petition, the Executive Officer, Panchayat Samiti Dehra of his own allotted the shops and fixed the rent thereof. This led to various complaints being filed against the Panchayat Samiti constraining the Commissioner-cum- Secretary, Panchayati Raj to intervene. The shops were then directed to be allotted afresh in accordance with the provisions of Panchayati Raj Act as also in terms of the directions passed by this court in Swaran Kumar vs. Panchayat Samiti Dehra and Rattan Chand vs. Panchayat Samiti Dehra. ::: Downloaded on - 15/04/2017 20:10:39 :::HCHP
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5. On 28.12.1999, a Committee was constituted to allot the shops firstly to the existing tenants and only thereafter consider the .
claim of the new allottees through open auction. The writ petitioner was allotted shop No.17 by the Additional Deputy Commissioner, Kangra vide his order dated 7.4.2000 and was simultaneously directed to remove the Khokha which had unauthorisedly been of constructed by him. However, the writ petitioner even then failed to get the possession of shop No.17 and was instead allotted shop No. rt 18, which constrained him to approach this Court by filing CWP No. 6159 of 2010 claiming therein the following relief:
"(a) Direct the respondents to allot Shop No. 17, at Shopping Complex, Jawalamukhi Temple Road, Dehra, District Kangra and to give the possession of shop No.17 to the petitioner in terms of order dated 7.4.2000 (Annexure PD)."
6. The official respondents in their reply submitted that the writ petitioner was in occupation of shop No. 18 allotted by the then Panchayat Samiti, Dehra on 23.3.1998 pursuant to an agreement to this effect. The petitioner thereafter had been consistently paying rent as per the aforesaid agreement. Whereas, at the same time, the petitioner was also continuing his business from the Khokha and despite having been asked to remove the same, the writ petitioner had failed to do so and had instead started giving applications to various authorities against the then Panchayat Samiti, Dehra.
7. Ultimately, a petition under Sections 5 and 7 of H.P Public Premises (Eviction and Rent Recovery) Act, 1971 for ejectment and recovery of rent was filed on 18.5.1999 before the ::: Downloaded on - 15/04/2017 20:10:39 :::HCHP ...4...
competent authority, which was finally decided on 30.3.2010. The petitioner was directed to vacate the said premises within 30 days of .
the publication of order and in the event of refusal or failure to comply with this order, he was further held liable to eviction by use of force as may be necessary for the same purpose.
8. In addition thereto the writ petitioner was ordered to pay of damages for unauthorized use and occupation of the same since 1.10.1997 and an amount of Rs.1500 x 20 = Rs.30,000/- was still due rt and recoverable from the writ petitioner.
9. It was further alleged that the writ petitioner had not removed the "Malwa" (debris) of the khokha despite orders having been passed to this effect by the Collector. It was also averred that the petitioner had not paid a single penny for shop No. 18 since 30.3.1998 and he was continuously carrying on his flourishing business in the heart of the town in shop No. 18 alongwith the khokha.
10. It is then submitted that in terms of orders passed by the Commissioner-cum-Secretary Panchayati Raj, re-allotment of shops was made in which the writ petitioner was allotted shop No. 17, but the said shop was in the illegal and unauthorized occupation of the appellant since 1998 and a petition under sections 5 and 7 of H.P Public Premises (Eviction and Rent Recovery) Act, 1971 had been filed on 19.9.2000 before the Collector Dehra. It was further claimed that official respondents were ready to hand over shop No. 17 against shop No. 18 to the petitioner, but the same could be done only after ::: Downloaded on - 15/04/2017 20:10:39 :::HCHP ...5...
the eviction of the appellant from shop No. 17, but the matter was subjudice.
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11. Insofar as the appellant is concerned, he initially was not a party to the writ petition. It is on the application preferred by him for impleading him as a party that he came to be impleaded as respondent No.5.
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12. In reply to the petition the appellant had submitted that prior to 8.8.1997 he and writ petitioner had been running open rt khokhas with the prior permission of respondent No. 4 at the rate of Rs.100/- per month and after construction of shopping complex, shop No. 17 was allotted to him, whereas shop No. 18 had been allotted to the writ petitioner. After the said allotment he vacated the khokha but the writ petitioner had not vacated the same and as a reason whereof eviction proceedings had been initiated by the official respondents against the writ petitioner. It is only thereafter that appellant started running his business in shop No. 17 on a monthly rent of Rs.1090/-.
13. It is further averred that on 7.4.2000 without associating the appellant, a committee was constituted and shop No. 17 was allotted to writ petitioner whereas shop No. 18 came to be allotted to the appellant. The appellant did not deny the receipt of notice of eviction, but claimed that he had challenged the same vide Civil Suit No. 143 of 2000 before the learned Sub Judge, Dehra. The Civil Suit was compromised between the parties on 20.1.2001, wherein it was agreed that official respondents would not evict the appellant from the disputed shop except in due process of law. ::: Downloaded on - 15/04/2017 20:10:39 :::HCHP
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14. The writ petition came to be allowed by the writ court, against which judgment the appellant has filed the instant appeal on .
the ground that the learned writ court has erred in not taking into consideration the compromise whereby the appellant was to be evicted only in accordance with due process of law. It was further averred that learned writ Court had not taken into consideration that of the writ petition was barred by delay and laches and further that the writ petitioner had not approached the Court with clean hands.
rt We have heard the learned counsel for the parties and have also gone through the records.
15. Ms. Ritta Goswami, learned counsel for the appellant has vehemently argued that the appellant could not have been ordered to be evicted from the shop in question in teeth of the orders passed by the civil Court except after following the due process of law.
16. There is inherent fallacy in this argument, the reason being that none of the parties to the lis have admittedly questioned the orders of allotment of shops made by the Additional Deputy Commissioner pursuant to the directions issued to this effect by the Commissioner-cum-Secretary, Panchayat Raj. It is further not in dispute that in terms of such re-allotment, the appellant was allotted shop No.18, whereas the writ petitioner was allotted shop No. 17. Therefore, there is no reasonable ground available with the appellant to resist the handing over of shop No.17 to the writ petitioner and was rather duty bound to have handed over the peaceful and vacant possession of this shop. Having been allotted shop No.18, the ::: Downloaded on - 15/04/2017 20:10:39 :::HCHP ...7...
appellant had no legal or other right to forcibly occupy shop No. 17 that too only on the ground that the writ petitioner had not been .
vacated shop No.18. The appellant could not have taken law in his own hands and if aggrieved, should have approached the official respondents rather than forcibly occupying shop No.17.
17. That apart, even the directions issued by the of Commissioner-cum-Secretary, Panchayati Raj (which have not been assailed by the appellant) could not in any way be construed to be not rt falling within the expression "due process of law".
18. Having said so, no doubt the writ petitioner is entitled to the possession of shop No. 17, but at the same time this Court cannot ignore even his conduct. It has come on record that the writ petitioner was not only occupying shop No.18 but continued carrying on his business from the unauthorized Khokha, that too, by not paying a single penny to the Panchayat Samiti, therefore, the conduct of the writ petitioner was equally unfair.
19. It is evident from the material placed on record that the entire endeavour of both the parties was only to get illegal and undue enrichment that too by raising untenable pleas. It is well settled that a party, who approaches a court of law, must not only come with clean hands, but also clean heart, clear mind and clear objective. The court proceedings are not a game of chess. At no cost can the stream of justice be permitted to be polluted by unscrupulous litigants. The writ court while exercising the writ jurisdiction exercises equitable jurisdiction. The estoppel stems from equitable doctrine and it requires that he who seeks equity must do equity. Not only this, a ::: Downloaded on - 15/04/2017 20:10:39 :::HCHP ...8...
person who seeks equity, must act in a fair and equitable manner. The equitable jurisdiction cannot be exercised in case of a person .
who himself has acted unfairly. Even compassion cannot be shown in such cases. The compassion cannot be allowed to bend the arms of justice in a case where an individual(s) have tried to acquire the property by unscrupulous method and by forcibly occupying the of premises which neither belong to them nor have been allotted in their favour.
20. rt Now, coming to the question of adjustment of equities. As already observed earlier, the principle that one who seeks equity must do equity is well known. Writ jurisdiction is equitable jurisdiction. It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.
21. We have referred to the provisions of Article 226 of the Constitution being fully conscious of the fact that we are dealing with Letters Patent Appeal. As it is more than settled that a writ appeal is a continuation of the writ petition and merely because it is an ::: Downloaded on - 15/04/2017 20:10:39 :::HCHP ...9...
appeal under the Letters Patent of the Court, it does not change its character from being a writ appeal and, therefore, the appellate .
powers of this Court cannot be circumscribed and would remain the same as that of the writ Court. It is equally settled that Letters Patent Appeal being an intra-Court appeal and in continuation of the writ petition under Article 226 of the Constitution of India, the relief prayed of for can be moulded and final relief can be granted. The proceedings of the intra-Court appeal are, normally, governed and regulated by rt the statutory provisions conferring right of appeal and jurisdiction to decide the appeal. However, intra-Court appeal under Clause 10 of the Letters Patent, arising out of the proceedings under Article 226 of the Constitution, is not at par with other statutory intra-Court appeals. It is, indeed, continuation of the proceedings under Article 226 of the Constitution.
22. Evidently, both the parties to the lis have reaped undue advantage by resorting to all sorts of unscrupulous methods in order to retain possession of the properties which had not even been allotted to them. None of the parties had the right to take law in their own hands and were required to approach the official respondents to resolve any difficulty rather than forcibly occupying the shops as per their convenience. Even the writ petitioner could not have retained and carried his business from the Khokha in violation to the orders passed by the Samiti. To say the least, the conduct of both the parties has been reprehensible and definitely not above board.
23. In view of the aforesaid discussion, there is no merit in this appeal and the same is dismissed with costs assessed at ::: Downloaded on - 15/04/2017 20:10:39 :::HCHP ...10...
`10,000/- to be paid by the appellant to the Samiti. However, at the same time, even the conduct of the writ petitioner has been totally .
unfair and he is therefore, required to compensate the Samiti for having gained unfair advantage by retaining possession of the Khokha as also shop No.18, therefore, before taking possession of shop No. 17, the writ petitioner is directed to pay a sum of `20,000/-
of to the Panchayat Samiti towards unfair advantage gained by him prior to filing of the petition.
rt The appeal is accordingly disposed of in the aforesaid terms.
(Mansoor Ahmad Mir), Chief Justice.
April 26, 2016. ( Tarlok Singh Chauhan ),
(GR) Judge.
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