Civil Writ Petition No. 11573 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 11573 of 1993 Date of decision: 31.03.2011 Tek Singh ...Petitioner Versus Municipal Committee Ellenabad and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Ms. Rupinder Kaur Thind, Advocate for the petitioner. Ms. Manmeet Kaur, Advocate for the respondents. RANJIT SINGH J. This order will dispose of Civil Writ Petition Nos. 11571 of 1993 (Madan Lal Versus Committee Ellenabad and others )11573 of 1993 (Tek Singh Versus Municipal Committee Ellenabad and others ), 11575 of 1993 (Kirpa Ram Versus Municipal Committee Ellenabad and others), 11578 of 1993 (Gordhan versus Municipal Committee Ellenabad and others), 11582 of 1993 (Shankar Lal versus Municipal Committee Ellenabad and others), 11583 of 1993 (Megh Raj versus Municipal Committee Ellenabad and others), 11585 of 1993 (Sat Narain versus Municipal Committee Ellenabad and others), 11741 of 1993 (Jug Lal versus Municipal Committee Ellenabad and others ), 11581 of 1993 (Binj Raj versus Municipal Committee Ellenabad and others), 11584 of 1993 (Kallu Ram versus Civil Writ Petition No. 11573 of 1993 2 Municipal Committee Ellenabad and others) as the common question of facts is involved in these cases. The facts are being taken from Civil Writ Petition No. 11573 of 1993. Various residents of Ellenabad, District Sirsa have filed these writ petitions for quashing the order passed directing their respective eviction from khokhas constructed on the land, which initially belong to Gram Panchayat. Their grievance is that they were tenants and have wrongly been treated as unauthorised occupants and their eviction ordered. The petitioners claim to be lessee on the land forming part of Khasra No. 641 belonging to Gram Panchayat, Ellenabad since 1978. It is stated that they are regularly paying rent at the rate Rs. 50/- to the Gram Panchayat. The management of the land in question was transferred to the Municipal Committee through notification dated 23.12.1988 and the petitioners, thereafter, are paying rent to the respondent/Municipal Committee. The petitioners have installed khokhas over the land in question since 1978, which was the purpose for which this land was given to them on lease. The Municipal Committee had filed the ejectment application under Sections 4, 5 and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (hereinafter referred to the 'Act') for the ejectment of the petitioners with the allegation that they are in unauthorised possession of the same. Sub Divisional Officer, Ellenabad in exercise of powers of Collector issued a composite notice to the petitioners under Section 4 (1) and 7 of the Act. It is alleged that this notice was without specifying any reasons. The petitioners filed reply to the notices and pointed out that they were not the unauthorised occupants and were Civil Writ Petition No. 11573 of 1993 3 paying monthly rent. Ignoring this overwhelming evidence, the Sub Divisional Officer ordered the ejectment of the petitioners on 09.04.1993 and also imposed penalty on the petitioners for use and occupation of this land. The petitioners went in appeal before the Commissioner, which was dismissed on 20.08.1993 and these orders in respect of different petitioners are now under challenge through these writ petitions. The respondent-Municipal Committee has filed reply challenging the locus standi of the petitioners to file all these petitions. It is stated that the issue whether the petitioners are unauthorized or illegal occupants of the public premises, cannot be adjudicated under Article 226 of the Constitution of India. It is pointed out that the statutory authority under the Act had passed an order. On merits, the averment that the land was given on lease to install khokhas is denied. It is stated that the petitioners are in illegal and unauthorised possession of the land and no sanction of installation of Khokhas was granted. It is pointed out that the petitioners have never tendered any tenancy to prove that they are tenants. They have also not tendered any lease or documents from which it could be established that the land in question was given to them on lease or on rent. Mere production of receipts, as per the respondents, would not be sufficient to show that they are tenants of the Gram Panchayat. Accordingly, the prayer is made for dismissing the writ petition. By way of application filed in the year 2002. The respondents had also pointed out that the petitioners have approached the civil court against the respondent-Committee Civil Writ Petition No. 11573 of 1993 4 seeking permanent injunction from dispossessing and removing the Khokhas of the petitioners. The petitioners had succeeded in the civil suit, which was challenged by the respondent-Committee, by filing an appeal before the Additional District Judge. The appeal was accepted. It is stated that these facts have not been disclosed by the petitioners in the writ petition. Accordingly, the prayer is made for dismissing the writ petition for concealment of facts also. The only argument raised is that the petitioners were not unauthorized occupants of the premises. The petitioners, thus, are seeking interference in the order passed by the authorities by way of seeking appreciation of fact. Whether receipt would be sufficient proof to show the tenancy would not be an issue, which would purely be a question of law. It is well-settled that the question of fact cannot be adjudicated by the writ court. The aspect that tenancy would be established merely on the basis of receipt can also not be accepted as it was considered and negated on the basis of precedent. The petitioners have no other proof to show that they were the tenants. Mere receipt would not disclose their status as the tenants. Another infirmity which will directly stare at the petitioners that their names are not mentioned in the resolution, which are passed by the Panchayat and accordingly the receipts which they have shown could not be correlated with the resolution that the Panchayat had passed. The petitioners have also withheld the fact of filing a civil suit to challenge the eviction as ordered. It is seen that the petitioner had filed a civil suit in the year 1987, praying for decree of permanent injunction restraining the defendants from forcibly dispossessing the petitioners from the wooden structure and for restraining the Civil Writ Petition No. 11573 of 1993 5 respondents from forcibly removing Khokas. This suit was decreed on 16.2.1994. One of the issue, which was decided in the suit was regarding the possession of the petitioners on the suit land as tenant. The respondents, however, have filed an appeal against said order, which was allowed and the order passed by the Sub Judge was set- aside. This fact has not been disclosed by the petitioners. Apparently, they have withheld this information. The petitioners, thus, are seen invoking two remedies against the same cause and, thus, are clearly guilty of concealment of facts. This can alone be an additional ground to decline relief to the petitioners in equity and in law. The acceptance of appeal filed by the respondents would clearly show that a finding of fact has been recorded by the Civil Court that the petitioners were not tenants as that was one of the issues raised in the civil suit. Therefore, I do not find any valid reason or justification to interfere in the impugned order passed by the authorities directing the eviction of the petitioners. Though not on record in any manner but the counsel for the respondents during the course of arguments pointed out before me that the Municipal Committee now intends to construct shops at the place, which the petitioners have occupied by constructing Khokhas. The intention is to rent out these shops to earn income for the Municipal Committee. The counsel submits that the petitioners would be at liberty to make an application for allotment of these shops once these are ready. I find this proposal and offer to be fair approach in dealing with the cases of the petitioners. While dismissing the writ petitions, I would give liberty to the petitioners to make an application for allotment of shops, if these Civil Writ Petition No. 11573 of 1993 6 are constructed at the place from where the petitioners are going to be evicted. It would be fair for the Municipal Committee to consider their claim by giving some preference to these petitions as they certainly have been in place for a reasonable period. The writ petitions, however, are dismissed. March 31, 2011 (RANJIT SINGH ) rts JUDGE