Uttarakhand High Court
Rakesh Kumar Chauhan vs Bharat Heavy Electricals Limited And ... on 8 January, 2018
Bench: K.M. Joseph, U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 1094 of 2017
Rakesh Kumar Chauhan ............ Appellant
Versus
Bharat Heavy Electricals Limited and others ............. Respondents
Mr. Tapan Singh, Advocate for the appellant.
Mr. V.K. Kohli, Senior Advocate assisted by Mr. Kanti Ram Sharma, Advocate
for the respondents.
Dated: 08th January, 2018
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble U.C. Dhyani, J.
K.M. JOSEPH, C.J. (Oral) Appellant is the writ petitioner. The writ petition was filed calling in question the notice dated 16.06.2014 affixed on the property of the appellant/writ petitioner by the third respondent. The third respondent, it may be noted, is the Estate Management, Bharat Heavy Electricals Limited (hereinafter referred to as the "BHEL"). The case of the appellant/writ petitioner, in brief, is as follows:
By sale deed dated 29.10.2007, the appellant/writ petitioner purchased property from one Vijay Singh. The extent of the property is 6500 Sq. Ft. i.e. 604.08 Sq. Mtrs. residential plot. It is alleged that it falls in Khasra No. 2272/2. The appellant/writ petitioner has raised construction over the plot and has obtained the water and electricity connection. The appellant/writ petitioner claims that he was the tenant of Shri Vijay Singh, the vendor. BHEL/respondent nos. 1 and
2 filed O.S. No. 105 of 2000 before the Civil Judge, Junior Division, Haridwar for temporary injunction in respect of property covered by Khasra Nos. 2269, 2270, 2272/2, 2272/3 (new Khasra Nos. 524, 525, 526, 527, 528) on the ground that it was acquired by BHEL. The temporary injunction was rejected. It is alleged that the Sub General Manager (Estate), BHEL filed an application addressed to SDM, Haridwar dated 07.02.1997 for the measurement of land situated in 2 Khasra Nos. 527, 528, 529, 530 and 531. The measurement was done and Annexure No. 8 report was filed. On the rejection of the temporary injunction application, a Misc. Civil Appeal was filed, which was dismissed holding that out of total area of old Khasra No. 2272/2, only 10 biswa land was acquired while 1 biswa land is claimed by the defendant. The Suit came to be withdrawn unconditionally without seeking permission to file fresh. It is alleged further that the third respondent initiated proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The Estate Officer passed an order on 26.08.2000 for eviction. Shri Vijay Singh filed Civil Appeal No. 36 of 2000. The Appellate Authority allowed the appeal and the matter was remanded back to decide the matter afresh. Subsequently, it is not in dispute that the Eviction Order was passed. Thereafter, it is stated that the impugned notice was affixed on the outer wall of the appellant/writ petitioner. The appellant/writ petitioner filed objections and the appellant/writ petitioner was before the learned Single Judge. Counter affidavit was filed in the writ petition. Paragraph nos. 6 and 9 of the same read as follows:
"6. That with regard to para 4 of the writ petition, the contention of the petitioner that he raised the construction on the plot so purchased and obtained the water connection, electricity connection etc., is entirely incorrect. The alleged papers pertaining to water connection and electricity connection have got no concern with the land in question. Moreover, as per the contention of the petitioner, he had purchased the land through alleged sale deed dated 29.10.2007, whereas Annexure No. 3 Page No. 42 of the writ petition is the meter sealing certificate dated 07.10.1992. Similarly, page No. 43 of the writ petition pertains to bill of water charges issued by Nagar Palika Parishad, Haridwar and it is dated 30.11.2000, whereas the petitioner's contention is that he had purchased the land and got the connection after purchase of the alleged land having being purchased on 29.10.2007. Even otherwise, the water bills or the electricity bills filed by the petitioner do not show that the same pertain to the land in dispute. Moreover, the water connection or electricity connection does not confer any right of ownership upon any person. It is not 3 admitted that the petitioner has raised the construction on the alleged plot of land. The petitioner has not filed any document in support of his contention. Even otherwise, the petitioner raising the construction on the land which was acquired by the Government, is an illegal act on his part and does not confer any right upon him to come in the way of execution of the eviction order. The petitioner is claiming the right through Sh. Vijay Singh, against whom the proceedings were started in the year 1996 and an order of eviction was passed on 18.08.2009, which covers the land allegedly purchased by the petitioner. The petitioner has alleged that he has purchased the land on 29.10.2007 during the pendency of the eviction proceedings and hence he can not protect his alleged possession, if any.
9. That with regard to para 8 to 10 of the writ petition, a perusal of Annexure -6 of the writ petition will show that the application related to prayer for measurement in respect of the lands belonging to BHEL, but the alleged report, which is Annexure -7 to the writ petition has nothing to do with regard to the prayer made by the petitioner and the report in question seems to have been concocted or having been obtained by the petitioner or somebody else in collusion. Nowhere a request was made with regard to the possession or whether the land is under Zamindari Abolition or otherwise. It was also not stated whether any construction lies thereon or not. Moreover, a request was made for measurement of the land belonging to BHEL along with Khasra Nos. 527, 528, 529, 530 and 531, but the report does not relate to any measurement and the alleged report of so-called Lekhpal only relates to the alleged Khasra No. 527 and it has wrongly been shown that it is under the possession of Sh. Vijay Singh. This report does not show what was referred to him and why he has not measured the land. Moreover in Annexure - 6 of the writ petition, there is an overwriting. It does not look that the SDM has directed the Lekhpal to give the report and some manipulations have been made on the letter dated 07.02.1997 and hence the petitioner is called upon to place the original copy of letter dated 07.02.1997 along with the report to show how he has managed to get photocopy of the government record. The petitioner has not mentioned what happened to this report. The manipulation on the letter dated 07.02.1997 is evident from the fact that the alleged report (Annexure - 7 of the writ petition) has been addressed to Tehsildar, whereas in the letter dated 07.02.1997 (Annexure - 6 of the writ petition), the endorsement is for Lekhpal to give the report. However, this report has got no value at all.4
The request made by the BHEL vide letter dated 07.02.1997 was not complied with by any department as the BHEL wanted whole of the land measured including Khasra Nos. 527, 528, 529, 530 and 531. No report was given with regard to the said land and there is manipulation to mention only about Khasra No. 527 to show the possession of Sh. Vijay Singh without any direction to Lekhpal. It is not known what further transpired on the said report. It is stated that Sh. Vijay Singh had never any right on the land bearing Khasra No. 2272/2 (old), new Khasra No. 527. It is further submitted that the total area of Khasra No. 2272/2 is 10 biswas, which was fully acquired for BHEL. The area of the said land was wrongly mentioned as 11 biswas in CH-41, while in CH-40, it is rightly mentioned as 10 biswas. Exact copies of CH-41 and CH-40 are ANNEXURE NOS. CA2 & CA3 of this affidavit."
2. Still further, we notice that a supplementary counter affidavit was filed. Paragraph nos. 3, 4, 5, 6, 9 and 10 of the same read as follows:
"3. That the facts are that whole of the Khasra No. 2272/2 (new No. 527) was acquired by the State for the respondents (BHEL) vide Notification dated 08.02.1962. An exact copy of the Notification dated 08.02.1962 is ANNEXURE NO. CA1 (page 13) of the counter affidavit filed by respondents. Khasra No. 2272/2 is shown at Page No. 20.
4. That the possession of the said Khasra Number was delivered to BHEL vide letter dated 14.3.1962, an exact copy whereof is ANNEXURE NO. SCA1 of this affidavit.
5. That Sh. Vijay Singh had filed a suit bearing Suit No. 139 of 1998; Sh. Vijay Singh Vs. BHEL and others in respect of land bearing Khasra No. 527 area 11 biswa situated at Ahmadpur Karrach, Jwalapur, Tehsil and District Haridwar along with other Khasra Numbers. In the said suit, a relief of permanent injunction restraining the defendants from demolishing the construction or from dispossessing the plaintiff (petitioner) along with the relief of adverse possession was sought by the plaintiff (petitioner). An exact copy of the plaint of Suit No. 139 of 1998; Sh. Vijay Singh Vs. BHEL and others, is ANNEXURE NO. SCA2 of this affidavit.
56. That Suit No. 139 of 1998; Sh. Vijay Singh Vs. BHEL and others was decided by the learned Civil Judge Senior Division, Haridwar vide judgment and order dated 09.09.2008 and it was directed that Sh. Vijay Singh should not be dispossessed from the property in suit without due process of law. An exact copy of the judgment and order dated 09.09.2008 passed by the learned Civil Judge Senior Division, Haridwar in Suit No. 139 of 1998; Sh. Vijay Singh Vs. BHEL and others, is ANNEXURE NO. SCA3 of this affidavit.
9. That the learned 3rd Additional District Judge, Haridwar vide judgment and order dated 10.03.2016 has allowed the appeal filed by BHEL. The learned Appellate Court has taken cognizance of the fact that there was no cause of action in favour of Sh. Vijay Singh to file a suit, as he has not led any evidence that the BHEL wants to forcibly evict him. To the contrary, the BHEL after initiating proceedings under the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971, has not done any such act, by virtue of which, any decree would have been passed against BHEL not to evict Sh. Vijay Singh without due process of law. An exact copy of the judgment and order dated 10.03.2016 passed by the learned 3rd Additional District Judge, Haridwar in Civil Appeal No. 53 of 2013; BHEL and another Vs. Sh. Vijay Singh and others, is ANNEXURE NO. SCA5 of this affidavit.
10. That it is submitted that in the Sajra prepared by the revenue authority, now Khasra No. 527 falls in the road and the contention of the petitioner that he has made a hut there or is ploughing the land, is not correct. The proceedings under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 against Sh. Vijay Singh have already been culminated and hence the BHEL is proceeding under the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 against the unauthorized occupant. In fact, the land which is being claimed by the petitioner does not fall in Khasra No. 2272/2 (new No. 527), Ahmadpur Karrach, Jwalapur, Tehsil and District Haridwar."
3. No rejoinder affidavit was filed by the appellant/writ petitioner. The learned Single Judge essentially proceeded on the basis that the property was acquired in the year 1962 for the purpose of BHEL; Shri Vijay Singh, the predecessor in interest of the appellant/writ 6 petitioner lost before the authority; and the order of eviction was passed. Finding no merit in the case of the appellant/writ petitioner, the writ petition was dismissed.
4. We heard Mr. Tapan Singh, learned counsel on behalf of the appellant/writ petitioner and Mr. V.K. Kohli, learned senior counsel on behalf of the respondents.
5. Mr. Tapan Singh, learned counsel for the appellant/writ petitioner would point out that under the cover of the impugned notice, the appellant/writ petitioner, who has purchased the land, as already noted, in old Khasra No. 2272/2, in extent of 6500 Sq. Ft. and new khasra number corresponding to the same being 527, is sought to be evicted even though Khasra No. 527 does not figure in the order of eviction. The operative portion of the order of eviction reads as follows:
"Now, therefore, in exercise of the powers conferred on me under sub-section (1) of Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, I hereby order that the said S/Shri Vijay Singh & Jaswant Singh S/o Late Narayan Singh, Devi Singh, Pratap Singh, Om Singh, Shyam Singh & Gopal Singh and Km. Pooja D/o Gopal Singh Smt. Banarasi Devi W/o Late Ganga Sharan, Manoj Singh & Babu Singh S/o Late Ganga Sharan, Smt. Pushpa Devi W/o Late Daulat Singh, Mangal Singh, Ravinder Singh S/o Late Daulat Singh & Km. Anuradha D/o Late Daulat Singh & their heirs and all persons who may be in occupation of the said Premises or any part thereof to vacate the said premises within 15 days of the date of publication of this order.
In the event of refusal or failure to comply with this order within the period specified above, the aforesaid OPs S/Shri Vijay Singh and all other persons concerned are liable to be evicted from the said premises, if need be, by the use of such force as may be necessary.
AND under section 7 of the Public Premises (Eviction of unauthorised Occupants) Act, 1971, I, further order that the aforesaid OPs S/Shri Vijay Singh & Others shall pay to BHEL damages @ Rs. 2000/- per 7 annum from the year 1981 alongwith interest @ 12% per annum till the date of eviction."
6. Mr. Tapan Singh, learned counsel for the appellant/writ petitioner would emphasize that it is not part of the eviction order and still he is being evicted.
7. Mr. V.K. Kohli, learned senior counsel for the respondents would point out that during the pendency of the writ petition, in fact, an order was passed by the learned Single Judge (Justice U.C. Dhyani), which reads as follows:
"Mr. Siddhartha Singh, Advocate present for the petitioners .
Mr. V. K. Kohli, Senior Advocate assisted by Mr. I. P. Kohli, Advocate present for the respondents.
A notice dated 16.06.2014 (Annexure-1 to the petition) was given to the writ petitioners by the Estate Officer of BHEL. The petitioners gave replies / objections to such notice on 18.06.2014. The respondent- BHEL is requested to decide such objections of the petitioners, by a reasoned and speaking order, within a period of four weeks from today.
List this matter after four weeks.
Counter affidavit may be filed by the respondent, in the meanwhile.
Till the next date of listing, no action pursuant to the said notice, which changes the nature of the property in question, shall be taken by the respondent-BHEL."
8. Pursuant to the same, objections of the appellant/writ petitioner came to be examined and the objections of the appellant/writ petitioner came to be rejected. Learned senior counsel for the respondents would submit that the entire land was vested with the BHEL.
9. We notice that in paragraph no. 6 of the original counter affidavit, a stand was definitely taken by the respondents/BHEL that the order of eviction passed covers the land purchased by the appellant/writ petitioner. There is no rejoinder to the same. There is a controversy sought to be projected by Mr. Tapan Singh, learned 8 counsel for the appellant/writ petitioner on the basis of non-mention of Khasra No. 527 in the eviction order expressly. The controversy sought to be raised is that his land is in Khasra No. 527, whereas according to Mr. V.K. Kohli, learned senior counsel for the respondents, the land in Khasra No. 527 was also acquired by the BHEL. Secondly, pursuant to the order passed by this Court, an order has been passed, apparently, rejecting the objections of the appellant/writ petitioner. This remains unchallenged. There was no attempt made to amend the writ petition or even file a fresh Writ Petition challenging the said order.
10. In such circumstances, we do not see any reason to grant relief to the appellant/writ petitioner and the appeal will stand dismissed without any order as to cost. This will be without prejudice to any remedy in law available to the appellant/writ petitioner.
(U.C. Dhyani, J.) (K.M. Joseph, C.J.)
08.01.2018 08.01.2018
Rahul