Regular Second Appeal No. 3610 of 2002 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3610 of 2002 (O&M) Date of decision : April 06, 2010 Smt. Chandra Prabha ....Appellant versus Haryana State through its District Collector and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. R.S. Mittal, Senior Advocate with Mr. Atul Gaur, Advocate, for the appellant Mr. Narinder Singh, DAG Haryana for respondents no. 1 and 2 Mr. Narender Hooda, Advocate, for respondent no. 3 L.N. Mittal, J. By this common judgment, I am disposing of two cases i.e. RSA No. 3610 of 2002 and CWP No. 9876 of 2006, both filed by Smt. Chandra Prabha relating to same suit property. Chandra Prabha (hereinafter to be referred as the appellant) filed suit for permanent injunction against State of Haryana through Collector, Superintending Engineer, PWD (B&R) and Administrator, Regular Second Appeal No. 3610 of 2002 (O&M) -2- Municipal Committee, Gurgaon alleging that under self employment scheme of the Government, the appellant moved application dated 30.9.1988 to Municipal Committee for allotment of 10 meters x 10 meters site near Police Line, Gurgaon for running a restaurant in the name and style of Gulmarg Restaurant, opposite Mahavir Park. Administrator of the Municipal Committee recommended the appellant's application to Deputy Commissioner, Gurgaon who approved the proposal and disputed site measuring 12 meters x 8 meters near Police Line, Gurgaon was allotted to the appellant for running the restaurant. The appellant gave project report and obtained loans from various sources and started running restaurant in the disputed site. Electric connection was also obtained by the appellant. On 18.4.1993, Municipal Committee demolished appellant's restaurant but she started the restaurant again at the disputed site. On 28.4.1993, the defendants again threatened to remove the appellant's restaurant. Accordingly, the appellant filed suit on 28.4.1993 seeking permanent injunction restraining defendants from demolishing appellant's restaurant at the disputed site and if they succeed in doing so, then relief of mandatory injunction for restoration of restaurant and damages be also granted. By amendment of plaint, the appellant alleged that she moved application to Deputy Commissioner for transfer of suit land in her favour by registered deed and for sanction of mutation. Additional Deputy Commissioner after making verification recommended the same to the Deputy Commissioner vide letter dated 8.8.1994. Tehsildar, Gurgaon also made recommendation to the Deputy Commissioner vide letter dated Regular Second Appeal No. 3610 of 2002 (O&M) -3- 7.10.1994. Accordingly, Deputy Commissioner vide letter dated 9.2.1995 appointed District Revenue Officer to execute registered conveyance deed in favour of appellant regarding the suit land but the same has not yet been executed. However, khasra girdawari has been entered in favour of the appellant regarding suit land measuring 14 biswansis out of khasra no. 461. The appellant accordingly also sought relief of mandatory injunction directing defendant no. 1 (State of Haryana through Collector) to execute registered transfer deed and mutation of the suit land in favour of the appellant. Defendants no. 1 and 2, interalia, pleaded that the plaintiff has encroached upon the land of PWD illegally and has constructed khokha measuring 12 feet x 10 feet and has placed her benches, stools etc. in front of the khokha, thereby causing hinderance in smooth flow of traffic. In a joint drive, PWD and Municipal Committee with the help of local Administration removed temporary belongings of the appellant from the area abutting road whereas appellant's khokha was not damaged or demolished. On the other hand, notice dated 14.5.1993 was issued to the appellant under the Public Premises and Land Eviction Act, 1972 (in short, the Eviction Act) requiring the appellant to remove her khokha from PWD land, but the appellant has refused to comply with the notice and accordingly case under the Eviction Act has been instituted against the appellant on 4.6.1993 in the court of Assistant Collector, Gurgaon. Various other pleas were also raised. In written statement to amended plaint, it was also pleaded that Regular Second Appeal No. 3610 of 2002 (O&M) -4- vide order dated 15.5.1995 under the Eviction Act, the appellant had been ordered to be evicted from the disputed land belonging to PWD and appeal preferred by the appellant was also dismissed by Commissioner vide order dated 21.9.1995. Defendant no. 3 in its written statement, interalia, pleaded that it has no concern with the disputed land. Earlier a different site had been allowed to the appellant for running khokha on Tehbazari but the said approval was withdrawn later on. Defendant no. 3 is neither owner nor in possession of the suit property. Various other pleas were also raised. Learned Civil Judge (Junior Division), Gurgaon vide judgment and decree dated 29.8.1998 decreed the appellant's suit and restrained the defendants from demolishing appellant's restaurant and from interfering in appellant's possession on the suit land underneath the restaurant. It was also directed that the suit land be mutated in favour of the appellant. However, relief regarding damages claimed by the appellant was declined. First appeal preferred by the defendants has been allowed by learned Additional District Judge, Gurgaon vide judgment and decree dated 13.8.2002 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has preferred RSA No. 3610 of 2002. Almost on similar averments as made in the suit, appellant Chandra Prabha filed CWP No. 9876 of 2006 against State of Haryana and its various authorities and also against Administrator, Municipal Committee, Gurgaon seeking issuance of writ of mandamus directing the respondents to enter mutation of the disputed land in favour of the appellant Regular Second Appeal No. 3610 of 2002 (O&M) -5- and also directing official respondents to decide appellant's representations Annexures P/2, P/4 etc. as in view of demarcation, PWD is not owner of the land in question. The appellant also sought quashing of communication dated 25.10.1995, Annexure P/7 sent by District Revenue Officer to the appellant intimating that the appellant's application dated 10.10.1995 for registered conveyance deed of the disputed site and for entry in revenue record in favour of the appellant was found baseless and had been filed. Communication dated 9.11.2005, Annexure P/18 sent by Commissioner, Gurgaon Division, Gurgaon to the appellant that her aforesaid request had been filed in view of pendency of matter (RSA) before the High Court has also been challenged in the writ petition. I have heard learned counsel for the parties and perused the case file. The appellant moved CM No. 7893.C of 2009 and CM No. 8751.C of 2005 for additional evidence. Both the said applications are allowed and Annexures A/1 to A/3 annexed with CM No. 7893.C of 2009 and demarcation report dated 19.7.2001 annexed with CM No. 8751.C of 2005 are admitted in evidence subject to all just exceptions. The main contention on behalf of the appellant/petitioner raised emphatically during the course of arguments was that on appellant's application dated 30.9.1988 Ex. P18 for allotment of the disputed site to appellant for running her restaurant, Administrator, Municipal Committee made recommendation Ex. P19 which was approved by Deputy Commissioner vide order Ex. P20 and therefore, the appellant is not in Regular Second Appeal No. 3610 of 2002 (O&M) -6- unlawful possession of the disputed site and is entitled to continue there and she is also entitled to get registered conveyance deed and mutation thereof in her favour. As a limb of the said argument, it was also contended that eviction of the appellant under the Eviction Act has been ordered from land of khasra no. 470 belonging to PWD, but according to demarcation report dated 19.7.2001 (Annexure P/12 in CWP and produced in additional evidence in RSA), the land underneath the appellant's restaurant is part of khasra no. 461 and not part of khasra no. 470. I have considered the aforesaid contentions but find no merit therein. The appellant in the original plaint claimed simple permanent injunction being in possession of disputed site after its allotment to her by the Deputy Commissioner. However, by way of amendment, the appellant also claimed relief of mandatory injunction for transfer of the suit land to her by way of registered conveyance deed and mutation. Similar relief has also been claimed by her in the writ petition. However, suit land was never gifted to the appellant by the State which is owner thereof. There is not even an iota of material on record to substantiate the appellant's plea that the suit land had been gifted to her. In fact, even the appellant herself had never requested for gift of the suit land to her. Perusal of appellant's application dated 30.9.1988 Ex. P18 (also Annexure P/2 in the writ petition), on the basis of which allotment of the disputed site was made to her, reveals that the appellant alleged in the said application that she was running her restaurant on a site in Mahavir Park but the same was removed by the Municipal Committee on 24.8.1988 and therefore, the appellant Regular Second Appeal No. 3610 of 2002 (O&M) -7- requested for allotment of the disputed site lying near the wall of the Police Line, opposite Mahavir Park across the road, on rent or lease. Thus, the appellant's own request for allotment of disputed site was on payment of lease or rent and not by way of conveyance deed or gift. Said request of the appellant was approved by the Deputy Commissioner vide endorsement Ex. P20 on recommendation Ex. P19 made by Administrator, Municipal Committee. It is, thus, apparent from appellant's own documents that she asked for the disputed site on lease or rent and the same was allotted to her. Admittedly, however, no rent was ever fixed nor the appellant ever paid even a single penny as rent or licence fee for the disputed site. It would, thus, emerge that appellant's possession on the disputed site was at best as a licencee pursuant to permission granted by Deputy Commissioner. The appellant, however, was never conferred ownership rights in the disputed site by anybody. On repeated enquiries, learned counsel for the appellant/petitioner failed to tell as to how the appellant is entitled to get ownership rights of the suit land by way of registered transfer deed and mutation or as to how the appellant is entitled to perpetually retain possession of the disputed site, particularly after the respondents have sought her eviction therefrom. The appellant originally being licencee on the disputed site has no right to continue when the licensor does not want her to continue there. In fact, on application moved by PWD under the Eviction Act, appellant has been ordered to be evicted from the disputed site vide eviction order dated 15.5.1995, Ex. D2 and appeal preferred by the appellant against said order has been dismissed vide order dated 21.9.1995 Regular Second Appeal No. 3610 of 2002 (O&M) -8- Ex. D3. In view of said eviction orders also, the appellant has not right to seek permanent injunction or mandatory injunction and has no right to continue in possession of the disputed site. It may be added here with significance that the appellant has not challenged the aforesaid eviction orders either in the suit or in the writ petition or in any other proceedings and the eviction orders have, therefore, attained finality. Learned counsel for the appellant vehemently contended that the eviction order has been passed regarding land of khasra no. 470 whereas restaurant of the appellant exists in land of khasra no. 461 and therefore, under the eviction order, the appellant cannot be evicted from the disputed site. The contention appears to be forceful and attractive on first blush, but on proper scrutiny, I find no merit in the said contention. There is demarcation report Ex. D1 depicting that the appellant's khokha exists in land of khasra no. 470. Of course, there is also demarcation report dated 19.7.2001 depicting that the appellant's restaurant exists in land of khasra no. 461. However, irrespective of whether the appellant's restaurant is in khasra no. 470 or in khasra no. 461, the appellant has no right to continue in possession of the disputed site because land of khasra no. 470 as well as land of khasra no. 461 belong to State Government as depicted by copy of jamabandi Ex. D4 and copy of jamabandi Ex. D5. Land of khasra no. 470 is of PWD whereas land of khasra no. 461 is of Police Department. It is, in fact, even the case of the appellant herself that the disputed site belongs to State Government. Identity of the site where the appellant's restaurant exists is also not in dispute inasmuch as the same exists between Regular Second Appeal No. 3610 of 2002 (O&M) -9- Police Line and road. Eviction of the appellant under the Eviction Act was ordered from the site underneath her restaurant and it is immaterial whether the appellant's restaurant/khokha exists in khasra no. 470 or in khasra no. 461 because both belong to State of Haryana. It is, thus, manifest that the appellant has no right to continue in the disputed site much less to get it transferred in her favour. The appellant by creating confusion about the existence of her restaurant in khasra no. 470 or in khasra no. 461 cannot derive any advantage because both said khasra numbers belong to State of Haryana and the appellant has been ordered to be evicted from the land underneath her restaurant. Even otherwise, even if it is assumed for the same of argument alone that the appellant's restaurant exists in khasra no. 461, even then there is no legal right vesting in the appellant to continue in possession thereof or to get its ownership transferred in her name. In the aforesaid context it is significant to notice that the Deputy Commissioner, Gurgaon filed affidavit dated 9.2.2010 affirming interalia, that there is no policy of the State Government under which the appellant can be rehabilitated at any other more appropriate place and the State is not in a position to allot any piece of land to the petitioner. The disputed site was never gifted to the appellant. The appellant simply being licencee thereon has no right to continue in its possession nor has any right to get its ownership transferred in her name. Learned counsel for the appellant vehemently contended that the appellant was also running her restaurant on a different site in Mahavir Park on Tehbazari (licence) from Municipal Committee as per receipts Regular Second Appeal No. 3610 of 2002 (O&M) -10- Annexure P-1/A to P-1/H in the writ petition. However, this contention is of no help to the appellant because the appellant has filed suit and writ petition regarding different site i.e. the disputed site and not regarding the site in Mahavir Park belonging to Municipal Committee. It may, however, be added that the aforesaid documents are licences granted by Municipal Committee from year to year for running the business of restaurant on payment of licence fee and these documents do not depict that the appellant was paying Tehbazari to the Municipal Committee for the said site in Mahavir Park. Licence has to be obtained from Municipal Committee for running business even in one's own site. However, if business is run on land of Municipal Committee, then separate fees or Tehbazari has to be paid which is not shown to be paid in this case by the documents aforesaid. However, it is not in dispute that appellant was earlier running her restaurant in Mahavir Park on a site belonging to Municipal Committee but that is completely irrelevant to the present litigation which pertains to another site. Learned counsel for the appellant vehemently contended that vide letter dated 5.9.1994, Annexure P/5 in the writ petition, Additional Deputy Commissioner recommended to the Deputy Commissioner for transfer of the disputed site to the appellant by registered deed and mutation. It was accordingly contended that the appellant is entitled to get the disputed site transferred in her name by way of registered deed and mutation. The contention is completely devoid of merit. If document Annexure P/5 is properly read, it would depict that the appellant was Regular Second Appeal No. 3610 of 2002 (O&M) -11- creating nuisance and problems for the State authorities by moving different applications to different authorities. It was to get rid of the appellant that the Additional Deputy Commissioner mentioned in communication Annexure P/5 that if the land is registered and mutation is sanctioned in favour of the appellant as per rules, all the problems could be solved. The Additional Deputy Commissioner thus did not recommend that the land be transferred to the appellant by registered deed and mutation. Additional Deputy Commissioner rather added a big rider 'if'. It was mentioned that if the land was transferred by registered deed and mutation, then problems could be solved. Additional Deputy Commissioner also mentioned that transfer should be made as per rules. However, the appellant has not been able to show any provision of rule or law entitling her to get the suit land transferred in her name by way of registered deed and mutation. The whole emphasis on behalf of the appellant was on allotment of disputed site to her by the Deputy Commissioner. However, as already discussed hereinbefore, the said allotment was not by way of gift nor by way of transfer of ownership but was by way of licence only as the appellant herself sought allotment on the basis of lease or rent and not by way of absolute transfer of ownership. In addition thereto, learned counsel for the appellant also failed to point out any provision of law or rules or instructions authorising Deputy Commissioner to transfer ownership of the suit land to the appellant. If the suit land falls in khasra no. 470, it belongs to PWD and if the suit land falls in khasra no. 461, it belongs to Police Department. The Deputy Regular Second Appeal No. 3610 of 2002 (O&M) -12- Commissioner, therefore, had no right, power or authority to transfer its ownership to the appellant. In fact, it appears that the Deputy Commissioner had also no right or authority to give this land on lease or licence to the appellant. However, since the Deputy Commissioner allotted the suit land to the appellant as a licencee, the appellant's initial possession thereon may not be said to be unauthorised. However, merely on the basis of said allotment as licencee, the appellant has no right to continue in possession of the suit land much less to seek transfer of its ownership to her. It may be mentioned that for disposal of any land belonging to any department of the State Government, the land has to be declared surplus by the concerned department being no longer required and only then the same can be said to be available for disposal, as stipulated by para 87 of Standing Order No. 28 of the Financial Commissioner. In the instant case, however, the suit land was never declared surplus or no longer required by PWD or Police Department. In fact, the suit land lies between Police Lines and road and therefore, the same could not be declared to be surplus for disposal being no longer required. It is the case of the respondents that appellant's restaurant at the disputed site is a traffic hazard and is causing hinderance in smooth flow of traffic. The disputed site abuts a busy road in Gurgaon. Therefore, in view of public interest and for smooth flow of traffic also, the appellant cannot be permitted to continue to run restaurant on the disputed site. Moreover, according to paragraph 87 of Financial Commissioner's Standing Order No. 28, Deputy Commissioner Regular Second Appeal No. 3610 of 2002 (O&M) -13- cannot permanently alienate or dispose of even any land available for disposal as no longer required by the concerned department. Paragraph 87 of aforesaid Standing Order provides that even temporary disposal can be made by the Deputy Commissioner under orders of the Commissioner. In the instant case, allotment of disputed site by Deputy Commissioner to appellant was made without seeking order of the Commissioner. In addition thereto, paragraph 87 of the aforesaid Standing Order lays down that even land becoming available for disposal cannot be permanently alienated by the Deputy Commissioner without previous sanction of the Government. Thus, permanent alienation of the suit land in favour of the appellant could be made with sanction of Government and not by the Deputy Commissioner at his own level. Admittedly, in the instant case, no sanction of the State Government was obtained for alienation of the suit land in favour of the appellant. Therefore, the question of transferring the ownership of the suit land in favour of the appellant by way of registered conveyance deed and mutation would not arise. At the risk of repetition, it may be emphasized that the appellant has no such right at all. Learned counsel for the appellant also contended that PWD authorities by making request Annexure P/11 to the Deputy Commissioner got the disputed land demarcated and as per demarcation, the land being part of khasra no. 461 belongs to Police Department and not to PWD and therefore, PWD has no right in the suit land. However, in the suit, the appellant did not implead Police Department as party to the suit. In any case, the suit land whether of Police Department or of PWD belongs to State Regular Second Appeal No. 3610 of 2002 (O&M) -14- Government and therefore, the appellant has no right therein. Learned counsel for the appellant also referred to order dated 19.7.2007 passed by Assistant Collector IInd Grade for correction of khasra girdawari of the suit land in favour of the appellant. However, this order is also of no help to the appellant. Admittedly, the appellant is in possession of the disputed site. The question, however, is whether the appellant has any right to continue in possession thereof or to get its ownership transferred in her favour. The answer to the said question is obviously in the negative in view of the reasons recorded hereinbefore. Learned counsel for the appellant contended that pursuant to order of Supreme Court, for rehabilitation of street vendors, Government of India framed National Policy of Urban Street Vendors in the year 2004. Reference was also made to judgment of Hon'ble Apex Court in Olga Tellis and others vs. Bombay Municipal Corporation and others, AIR 1986 SC 180 wherein Maharashtra State Government gave some assurance regarding resettlement of pavement dwellers and necessary direction was accordingly issued for the same. It was also pointed out that a Division Bench of this Court vide order dated 4.12.2008 in CWP No. 20490 of 2008, titled Roop Nath and others versus Municipal Corporation, Gurgaon and another, directed the State Government to consider the writ petition as representation for rehabilitation of squatters and vendors and to decide and dispose of said representation within four months. However, admittedly no policy has been framed by State Government for rehabilitation of urban street vendors or for allotment of any site to them Regular Second Appeal No. 3610 of 2002 (O&M) -15- free of cost or on subsidised price. On the other hand, as noticed hereinbefore, Deputy Commissioner, Gurgaon vide affidavit dated 9.2.2010 deposed that there is no Government police of the State under which the appellant could be rehabilitated at some other more appropriate place and State Government is not in a position to allot any piece of land to the appellant/petitioner. It is, thus, apparent that the appellant has no vested right to get the suit land or any other land allotted to her by way of ownership or otherwise. Learned counsel for the appellant relied on various judgments but the same are not attracted to the facts of the case in hand. In Gram Panchayat, Village Bhedpura versus The Additional Director, Consolidation and others, 1997(1) PLR 391, respondents had been taking the land on lease from Gram Panchayat. It was held that respondents could still plead that there was a mistake of fact or