Punjab-Haryana High Court
Date Of Decision: 16.09.2013 vs State Of Punjab And Others on 16 September, 2013
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CWP No.18802 of 2013 -1-
CWP No.18800 of 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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1. CWP No.18802 of 2013 (O&M)
Date of Decision: 16.09.2013
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Lakhwant Singh
. . . .Petitioner
Versus
State of Punjab and others
. . . . Respondents
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2. CWP No.18800 of 2013 (O&M)
Date of Decision: 16.09.2013
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Lakhwant Singh
. . . .Petitioner
Versus
State of Punjab and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.B.S. Bajwa, Advocate,
for the petitioner.
Mr.V. Ramswaroop, Addl. A.G. Punjab
Mr.Ashish Kapoor, Advocate,
for respondent No.2.
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RAKESH KUMAR JAIN, J.
This order shall dispose of two writ petitions bearing CWP Nos.18802 of 2013 and CWP No.18800 of 2013 due to commonality of the facts and circumstances and the questions of law involved therein. However, the facts are being extracted from CWP No.18802 of 2013. CWP No.18802 of 2013 -2- CWP No.18800 of 2013
The petitioner is the landowner, who has given his land on lease to the Indian Oil Corporation Limited [for short 'the IOC'] for running a company owned outlet. According to the petitioner, the IOC filed a petition under Section 3-A of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 [for short 'the Act'] before the Estate Officer, IOC, Punjab State Office, Chandigarh which was allowed vide its order dated 26.4.2010. The petitioner filed appeal under Section 9 of the Act before the Civil Court but was also dismissed vide order dated 3.8.2013 and hence, the present writ petition.
Learned counsel for the petitioner has submitted that the petitioner is running the retail outlet and is in possession for a long time much less beyond a period of 30 years, therefore, proceedings initiated against him under Section 3-A of the Act are patently illegal because such proceedings could be initiated only in case of temporary occupation which is defined under Section 2(fb) of the Act.
After notice, learned counsel for the respondents/IOC has put in appearance and filed reply wherein it is submitted that the petitioner is only a lessor of the land on which the outlet of the respondent is running and it is being operated on day-to-day basis by the nominee of the petitioner, who is not a party to the writ petition, as the unit in question is a Company Owned Company Operated unit [for CWP No.18802 of 2013 -3- CWP No.18800 of 2013 short 'COCO unit']. He has further submitted that the petitioner has not come to the Court with clean hands as he has suppressed material information from the Court in order to get the order of stay. It is further submitted that the petitioner had filed two writ petitions bearing WP (C) No.3323 of 2007 titled as Lakhwant Singh Vs. Union of India and WP (C) No.3251 of 2007 titled as Lakhwant Singh Vs. Union of India before the Hon'ble Delhi High Court but both the writ petitions were dismissed and the SLP filed before the Apex Court also met the same fate. Besides that, the Review and Curative petitions filed by the petitioner were also dismissed.
Learned counsel for the respondents has also mentioned that the petitioner had earlier filed a petition, alleging to be the retailer, bearing CWP No.1852 of 2010 titled as Lakhwant Singh Vs. Union of India and others in which after notice reply is allegedly filed by the IOC and the petitioner withdrew the writ petition on 3.5.2011, wherein following order was passed; -
"After arguing at some length, counsel for the petitioner seeks permission to withdraw the present writ petition. Dismissed as withdrawn."
Learned counsel for the respondents has also submitted that the petitioner has not mentioned in the writ petition about the earlier litigation rather it is highlighted that CWP No.18802 of 2013 -4- CWP No.18800 of 2013 when the matter was pending before the Estate Officer of the IOC, a statement was suffered by the petitioner that his review petition is pending before the Supreme Court which is likely to be taken up on 17.11.2008 and in case the petition is ultimately rejected, he would have no objection but to handover site to the Corporation. It is further submitted that even the IOC had filed a writ petition in this Court bearing CWP No. 24287 of 2012 because the petitioner was not allowing the respondent to take possession and in that case, following order was passed: -
"Mr. Ashish Kapoor, learned counsel for the petitioner relies upon an order passed by this Court in CWP No.3316 of 2011 (P-15) in which in similar circumstances, a direction has been issued to the appellate authority to decide the appeal within the date fixed by the Court depending on the result of the appeal, in the event of eviction order being maintained then the Senior Superintendent of Police, Batala, has been directed to provide adequate police assistance to the petitioner- corporation to implement the eviction order in case it is upheld in appeal. CWP No.18802 of 2013 -5- CWP No.18800 of 2013
Having heard Mr. Kapoor, learned counsel for the petitioner, Mr. Maini, learned State Counsel and Mr. Bajwa, learned counsel for respondents No.3 and 4, a direction is issued to the appellate authority to decide the appeal within two months from the date of receipt of a certified copy of this order. If the eviction order is sustained then a direction is issued to the SSP, Batala, to provide police assistance to the petitioner to ensure peaceful repossession of the demised premises."
It is submitted that maintenance and handling contract was given to the nominee of the petitioner on day-to-day basis and in this regard, he has referred to para 7 of the contract which reads as under: -
"The M & H Contractor shall have the right to enter the said premises for the sole purpose of operating the retail outlet for sale of the produces and render services stated hereinabove and shall have no right, title or interest whether as owner, lessee, tenant or otherwise in the said premises nor in CWP No.18802 of 2013 -6- CWP No.18800 of 2013 the outfit and shall not be entitled to claim the right of lease, tenant or any other interest in the premises or outfit. It is specifically agreed by the M & H contractor and the M & H Contractor hereby declares that the M & H contracts is and shall not be deemed to be in exclusive possession of the said premises."
During the course of hearing, learned counsel for the petitioner has submitted that there was a 30 years' contract of lease of his land to the IOC at the rate of `15,000/- and on that basis, he has claimed to have become the retailer.
I have heard learned counsel for the parties and after perusing the record, I am of the considered opinion that both the writ petitions are denuded of any merit and are liable to be dismissed.
The legal issue raised by the petitioner is that the respondents could not have initiated proceedings under Section 3-A of the Act which deals with temporary occupation which is only meant for a period less than 30 days. In this regard, Section 3-A and Section 2(fb) and (g) of the Act are reproduced as under: -
CWP No.18802 of 2013 -7-CWP No.18800 of 2013
"3-A. 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 in unauthorized occupation of the said premises, he may, for reasons to be recorded in writing, make an order for 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."
"4(fb) 'Temporary Occupation', in relation to any public premises, means occupation by any person on the basis of an order of allotment made under the authority of the Central Government, a State Government, the Government of a CWP No.18802 of 2013 -8- CWP No.18800 of 2013 Union Territory or a Statutory authority for a total period (including the extended period, if any) which is less than thirty days;)
(g) 'unauthorised occupation', in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
From Clause 7 of the contract, referred to above, the possession of the petitioner's nominee was on day-to-day basis as it is a COCO Unit and the occupation is always considered to be temporary and for that matter, order under Section 3-A has rightly been passed. Moreover, the petitioner has had a constant litigation with the IOC but he has lost before Delhi High Court, ultimately before the Apex Court and when he himself filed the writ petition, the same was CWP No.18802 of 2013 -9- CWP No.18800 of 2013 withdrawn and in the writ petition filed by the petitioner, this Court had categorically observed that the moment appeal is decided against the petitioner, the possession can be taken with Police help by the IOC.
In view of the aforesaid discussion, there is no merit in the writ petitions and the same are hereby dismissed with Costs of `10,000/- in each case which shall be deposited by the petitioner with the Punjab State Legal Services Authority within three months from the date of passing of this order and the copy of receipts of costs deposited are directed to place on record of both the writ petitions. In case, the costs are not deposited and the receipts are not placed as directed, the Registry is directed to list this case again for appropriate orders which may also include a notice of contempt for violating the directions issued hereinabove.
(RAKESH KUMAR JAIN) 16.09.2013 JUDGE Vivek Pahwa Vivek 2013.09.20 16:22 I attest to the accuracy and integrity of this document