Punjab-Haryana High Court
Gulam Mohd vs Chandigarh Administration & Others on 7 August, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
CWP No.14955 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION : 7.8.2012
Gulam Mohd.
...Appellant
Versus
Chandigarh Administration & Others
...Respondents
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE RAJIV NARAIN RAINA
PRESENT: Mr.Vikas Bahl, Advocate for the petitioner(s)
....
Notes: 1.Whether to be referred to the reporters or not?
2.Whether the judgment should be reported in the Digest?
....
RAJIV NARAIN RAINA, J.
This order will dispose of 29 writ petitions* as common questions of law and facts are involved in the same. However, for the sake of brevity, facts are culled out from CWP No.14955 of 2012.
The present petition and connected cases have been filed under Articles 226/227 of the Constitution praying for quashing of the order dated 21.6.2012 (Annexure P-9) passed by the Sub Divisional Magistrate (East), Chandigarh exercising the powers of Estate Officer under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short "the Act") whereby the petitioners have been ordered to be evicted from their respective labour shelters bearing Quarter Nos.1001 to 1060 in Sector 29-B, Chandigarh. The petitioners have been shown as unauthorized occupants of the shelters belonging to the UT CWP No.14955 of 2012 2 Administration, Chandigarh and have been ordered to be evicted under Section 5(1) of the Act. Aggrieved by the eviction order, the present petitioner preferred appeal under Section 9 of the Act against the eviction orders. The same has, however, been rejected by the Additional District Judge, Chandigarh by order dated 28.7.2012 (Annexure P-28).
A brief history of the temporary occupation of labour Quarters No.1001 to 1060, Sector 29-B, Chandigarh by migrant labour from the State of Jammu and Kashmir following lack of employment opportunities in the valley would be necessary to understand the matter. It appears that since the year 1966, the issue of earmarking labour quarters for migrant Kashmiri labour trickling into Chandigarh had been engaging the attention of the UT Administration at the behest of the Labour Department of the State of Jammu and Kashmir stationed through Camp Office at Chandigarh. The need for such shelters exacerbated in the early 1980's following insurgency in the Valley leading to further labour migration. It transpired that the quarters earmarked for the purpose to temporarily house the said migrant labour were earlier in occupation of the Police Lines and the CIA Staff and when those activities were shifted to Old Police Lines in Sector 29, Chandigarh, these quarters came to be vacated and became available for occupation. In the 1980's all the 60 quarters in Sector 29-B, Chandigarh were allotted to different migrants from the hill State as and when requests were screened and given effect to. The welfare of migrant Labour in Chandigarh was monitored by a Labour Welfare Officer of Jammu & Kashmir Government posted at Chandigarh in an office specially set up for the purpose. These quarters came to be loosely called the J&K Labour Colony.
The petitioner in CWP No.14955 of 2012 pleads that he came to Chandigarh in the year 1983 unable to find work in Jammu & Kashmir. He applied to the Labour Commissioner for allotment of a quarter and was allotted temporarily Quarter No.1020 in Sector 29-B, Chandigarh. He claims to have made the quarter his homestead for the last 28 years and has raised his family therein. To be thrown out suddenly under colour of the impugned orders he CWP No.14955 of 2012 3 pleads is a humanitarian issue. The other petitioners in connected cases were similarly allotted quarters from time to time screened by their local office in tandem with the Chandigarh Administration. In 1987, the respondent-UT Administration through the aegis of the then Assistant Labour Commissioner, J & K issued notices to the migratory labour in possession of the quarters for eviction from the respective premises. Aggrieved by the eviction notices, several writ petitions came to be filed before this Court with lead petition being CWP No.1083 of 1987. Those writ petitions were admitted for regular hearing with interim orders till they were finally decided by judgment and order dated 25.1.2010 in which the learned Single Judge of this Court issued the following directions:-
"6.In any event, the impugned proceedings at the instance of the Labour Commissioner that all the persons would be forcibly evicted from the premises with the help of police is absolutely untenable in tenor employed against persons, who were permitted to occupy the premises. The Administration shall consider whether the persons, who are in occupation of the various residential units have been in occupation under any specific authority granted to them. The Administration shall also be competent to make enquiries about the state of origin and the nature of the bona fides of their residential status. The Administration may also evolve a policy of accommodating any migrant labour and stipulate through a transparent decision making process of the class of persons that could require a economic and social support. A right to live would include a right to live with dignity and such a right should enure to all the persons, who have taken to this city as their place of domicile. No force shall be employed for vacating any of the petitioners but the decision to either continue them or relocate them or even evict them shall be through a legal process and under the authority of law by following the procedure for eviction, which the Administration is entitled to invoke. The Administration shall be at liberty to obtain suitable representations and require proof of such details as the Administration may require in their pronounced policy of how the migrants from Jammu and Kashmir could be settled. This order is made only to secure to the petitioners a right not to be evicted otherwise than in course of law. This order shall not be construed as conceding to any of the petitioners any vested right in the property. The nature of right that the Administration desires to grant them, shall be in the manner that the law would allow in respect of allotment of properties within the city of Chandigarh.
7. Reserving to the respondents-Chandigarh Administration such power, the claim of the petitioners is allowed to guarantee to them the right to live in the respective property till evicted in the process known to law....."
It appears that the respondent-UT Administration did not take any CWP No.14955 of 2012 4 concrete steps pursuant to the directions issued by this Court till such time the Deputy Commissioner/SDM (East), Estate Office, Sector 17, Chandigarh received a communication dated 18.1.2012 from the Assistant Labour Commissioner, Jammu & Kashmir Labour Department, camp office at House No.1362, Sector 15-B, Chandigarh (for short "the ALC") calling for eviction of illegal occupants from the labour Sarai/Shelters in Sector 29-B, Chandigarh earmarked as night shelters for migratory labour from Jammu & Kashmir by the administration. The ALC informed the UT Administration that some occupants had 'sold' the quarters to third parties who did not belong to the State of Jammu & Kashmir and put such persons in unlawful possession of those premises by misusing their license. It was also stated that after the orders passed in the aforesaid writ petition, the ALC had conducted a survey and discovered that 16 such quarters have been sold by Kashmiri migratory occupants to 'vendees' from other States. The ALC stated that he had written letter dated 5.1.2011 in this connection which was duly received on 10.1.2011 by the Chandigarh administration, but no action has been taken in respect of eviction of illegal occupants. The ALC had, therefore, taken preemptory action against one Rajinder Kumar and Baldev Singh belonging to other States found residing in H.No.1057, Sector 29-B, Chandigarh leading even to registration of an FIR against Rajinder Kumar Rawat. The ALC also took recourse to the provisions of Section 156(3) Cr.P.C. for registration of FIRs against 11 persons belonging to other States who were found in illegal occupation of the quarters meant for the J & K labour Sarai. That matter is said to be pending. In this letter (Annexure P-
17), a list of 15 outsiders was annexed who were said to be illegal occupants of the properties owned by the Chandigarh Administration, but on lease in the name of ALC, Jammu & Kashmir Government, at Chandigarh. A request for eviction was made. This letter culminated in the impugned order dated 21.6.2012 (Annexure P-9) passed by the SDM (East) evicting occupants of H.No.1020, Sector 29-B, Chandigarh under Section 5(1) of the Public Premises Act, on the basis of the report of the ALC, Jammu & Kashmir Government, UT, Chandigarh. CWP No.14955 of 2012 5 The order is addressed to one Sh.Jabar Sheikh with respect to H.No.1020, Sector 29-B, Chandigarh which the petitioner Gulam Mohd. claims to be in occupation.
Aggrieved by the order of the SDM (East) passed under the Act, the petitioner and other writ petitioners in connected cases filed statutory appeals under Section 9 of the Act against the aforesaid order. Though the name of the petitioner does not find mention in the list of 15 illegal occupants, annexed with the letter Annexure P-17, but in a fresh survey conducted by the ALC of all the quarters i.e. from Quarter Nos.1001 to 1060, the name of the petitioner/appellant figured in the said list.
The power to evict a person in temporary occupation of public premises who is in unauthorized occupation of the same is found in Section 3-A of the Act. Section3-A is a special provision contained in the Act which reads as follows:-
"3A. Eviction from temporary occupation.-
Notwithstanding anything contained in section 4 or section 5, if the Estate Officer, after making such inquiry as he deems expedient in the circumstances of the case, is satisfied that any persons who were allowed temporary occupation of any public premises are unauthorised occupation of the said premises, he may, for reasons to be recorded in writing make an order for the eviction of such persons forthwith and thereupon, if such persons refuse or fail to comply with the said order of eviction, he may evict them from the premises and take possession thereof and may, for that purpose, use such force as may be necessary."
Section 3-A of the Act starts with a non-obstante clause excluding operation of the provisions of Sections 4 and 5 of the Act in cases where the Estate Officer is satisfied that any person who was allotted temporary occupation of public premises are in unauthorized occupation, he may, for reasons to be recorded in writing, make an order of eviction of such persons forthwith. In cases of obstruction from eviction, he is permitted to take possession of the premises by use of such force, as may be necessary.
We have heard Mr. Vikas Bahl, learned counsel appearing for the petitioners.
The only protection afforded to the petitioners under the judgment and CWP No.14955 of 2012 6 order dated 25.2.2010 passed by the learned Single Judge of this Court in CWP No.1083 of 1987 was that the petitioners would not be dispossessed or evicted, except in due course of law. We are afraid, it is not possible to give any protection to the petitioners larger than that granted by this Court as that decision has attained finality and operates as res judicata. The lessee of the property i.e. the ALC, J & K had found serious defalcations and gross misuse of the labour quarters at the hands of the occupants and of unlawful onward sales made to third parties without valid legal authority or title in property. In the second survey conducted, the name of the petitioner finds mention as an illegal occupant. Merely because the petitioner claims to have been in possession of the property for the last 28 years would not itself clothe him with right, title or interest in the labour quarter which was meant only as a night shelter and temporary arrangement for migrant labour as licencees. In the absence of any letter of allotment or conveyance deed or other document in favour of the petitioner, it would be difficult to uphold the right of continued possession after declaration of illegal occupation and unauthorized possession. There may be hardship involved in the eviction process or humanitarian issues involved yet it is for the UT Administration, as owner of the property to consider the feasibility of carrying on with the purpose of the quarters as a Sarai for migratory labour from Jammu and Kashmir in the background of further exodus from the Valley over the years. This is, however, a question of policy and we can only say that the directions and observations of the learned Single Judge contained in the portion extracted, supra would be given respect by the Chandigarh Administration which may yet formulate a policy where genuine and bona fide needs of migrant labour are temporarily met and use and occupation of the 60 quarters considered, evaluated and examined on the principle of continued need and comparative hardship inter se of genuine and bona fide migrant labour and to take such action against erring migrants who unlawfully sold the quarters to third parties by deceit and fraud and disturbed the fragile equilibrium. This is, however, for the Chandigarh administration to address itself before taking penultimate decisions. CWP No.14955 of 2012 7 Notwithstanding the above, we cannot bring ourselves to help the petitioner/s in his/their predicament since we do not find any illegality, apparent error; legal flaw or perversity in the order passed by the learned Additional District Judge, Chandigarh in the statutory appeal presented before him and consequently are constrained to dismiss this petition with the above observations.
(RAJIV NARAIN RAINA) (HEMANT GUPTA)
JUDGE JUDGE
7.8.2012
MFK
*1. CWP-14955-2012 GULAM MOHD. V/S CHANDIGARH ADMINISTRATION AND ORS.
2.CWP-14956-2012 SHAM SINGH V/S CHANDIGARH ADMINISTRATION AND ORS.
3.CWP-14957-2012 SAIRA V/S CHANDIGARH ADMINISTRATION AND ORS,
4..CWP-14958-2012 SHAM LAL SHARMA V/S CHANDIGARH ADMINISTRATION AND ORS.
5.CWP-14959-2012 RAJ ALI V/S CHANDIGARH ADMINISTRATION AND ORS.
6.CWP-14960-2012 RAMA TALWAR V/S CHANDIGARH ADMINISTRATION AND ORS.
7.CWP-14961-2012 KHURSHEED AHMED KAKROO V/S CHANDIGARH ADMINISTRATION & ORS.
8.CWP-14962-2012 SUBHASH SHARMA V/S CHANDIGARH ADMINISTRATION & ORS.
9.CWP-14963-2012 SATPAL SHARMA V/S CHANDIGARH ADMINISTRATION & ORS.
10.CWP-14964-2012 MULKH RAM V/S CHANDIGARH ADMINISTRATION & ORS.
11.CWP-14965-2012 MODH. AKRAM KHAN V/S CHANDIGARH ADMINISTRATION & OR.
12.CWP-14966-2012 ASHOK KUMAR V/S CHANDIGARH ADMINISTRATION & ORS.
13. CWP-14967-2012 HOOR ALAM V/S CHANDIGARH ADMINISTRATION & ORS. 14 CWP-14968-2012 KOSHILYA DEVI V/S CHANDIGARH ADMINISTRAITON & ORS.
15. CWP-14969-2012 ABDUL MAJID V/S CHANDIGARH ADMINISTRATION & ORS.
16. CWP-14970-2012 DEEPAK SHARMA V/S CHANDIGARH ADMINISTRATION & ORS.
17. CWP-14971-2012 SYBHASH CHANDER AND ORS V/S CHD. ADMN. AND ORS
18. CWP-14972-2012 BASHIR AHMED AND ORS V/S CHD. ADMN. AND ORS
19. CWP-14973-2012 ABDUL RASHID KHAN AND ORS V/S CHD. ADMN. AND ORS
20. CWP-14974-2012 GULAM MOHMMAD V/S CHD. ADMN. AND ORS
21.CWP-14975-2012 SATPAL V/S CHAD. ADMN. & ORS
22.CWP-14976-2012 DILAWAR KHAN V/S CHAD. ADMN. & ORS
22.CWP-14977-2012 ONKAR SINGH V/S CHAD. ADMN. & ORS
24.CWP-14978-2012 ASHOK KUMAR V/S CHAD. ADMN. & ORS
25. CWP-14979-2012 BALWANT SINGH V/S CHANDIGARH ADMINISTRATION AND ORS.
26. CWP-14980-2012 KAKA RAM V/S CHANDIGARH ADMINISTRATION AND ORS.
27. CWP-14981-2012 NAZMA V/S CHANDIGARH ADMINISTRATION AND ORS. CWP No.14955 of 2012 8
28. CWP-14982-2012 KAMLESH KUMARI V/S CHANDIGARH ADMINISTRATION AND ORS.
29. CWP-14983-2012 ABDUL SAMAD MIR V/S CHANDIGARH ADMINISTRATION AND ORS.
(RAJIV NARAIN RAINA) (HEMANT GUPTA)
JUDGE JUDGE
7.8.2012
MFK