C.M. No. 2432 of 2010 in/and LPA No. 832 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 2432 of 2010 in/and LPA No. 832 of 2010 Date of decision: 19.07.2010 Chander Prabha w/o Surinderpal Singh Tomar ….. APPELLANT VERSUS The State of Haryana and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Ramesh Sharma, Advocate, for the applicant/appellant. *** AUGUSTINE GEORGE MASIH, J. For the reasons mentioned in the application, delay of 67 days in refiling the Letters Patent Appeal is condoned and the Appeal is taken up for hearing. Through this appeal, the appellant-petitioner has challenged the judgment of the learned Single Judge dated 06.04.2010, whereby CWP No. 9876 of 2006 preferred by the appellant-petitioner was dismissed. C.M. No. 2432 of 2010 in/and LPA No. 832 of 2010 2 Counsel for the appellant contends that the Court has not taken into consideration the demarcation reports, which were placed on record. The land in question, on which the khokha of the appellant is being run, is situated in khasra No. 461 min, which land belongs to the Department of Police and, therefore, the appellant was entitled to the relief, as prayed for by her in the appeal, which she had prayed in the writ petition. In the writ petition, prayer was made by the appellant-petitioner that a writ of mandamus be issued to the respondents to immediately enter the mutation of the land which was allotted to the appellant in her name and was in her possession and further directing the respondents not to interfere in her legal and peaceful possession. He contends that the prayer, as made by the petitioner in the writ petition, deserves to the allowed. Accordingly, he prays that the appeal be allowed and the impugned judgment of the learned Single Judge be set aside. We have heard counsel for the appellant-petitioner and have gone through the records of the case. The appellant-petitioner had filed a suit for permanent injunction against the State of Haryana, Superintending Engineer, Public Works Department B&R and Municipal Committee, Gurgaon on 28.04.1993 restraining the defendants from demolishing the Restaurant being run by her at the site. Thereafter by amending the plaint, she had sought directions to the State of Haryana to execute registered sale deed and mutation of the suit land in her favour. The Suit was decreed by the learned Civil Judge (Jr. Divn.), Gurgaon vide judgment and decree dated 29.08.1998. On an appeal preferred by the defendants in the suit, the learned Additional District Judge, Gurgaon, vide judgment and decree C.M. No. 2432 of 2010 in/and LPA No. 832 of 2010 3 dated 13.08.2002 allowed the same and dismissed the suit filed by the plaintiff. Feeling aggrieved, the appellant preferred RSA No. 3610 of 2002. During the pendency of the said appeal, almost on similar averments and grounds, the appellant-petitioner filed CWP No. 9876 of 2006 seeking a prayer for issuance of a writ in the nature of mandamus directing the respondents to enter the mutation of the disputed land in favour of the appellant and directing the official respondents to decide the representations of the appellant (Annexures P-2 and P-4) in the light of the demarcation reports and the fact that the Public Works Department is not the owner of the land in question and also sought quashing of letter dated 25.10.1995 (Annexure P-7) sent by the District Revenue Officer, Gurgaon to the appellant intimating that the appellant's application dated 10.10.1995 for registering conveyance deed of the disputed site and for entry in revenue record in favour of the appellant, was found baseless and was filed. The writ petition was ordered to be heard along with RSA No. 3610 of 2002. The learned Single Judge by a common judgment dated 06.04.2010 disposed of the Regular Second Appeal and the writ petition preferred by the appellant-petitioner by dismissing the same leading to the filing of the present appeal. On consideration of the evidence, which has been placed on record, the learned Single Judge held that there is no material on the record to substantiate the appellant's plea that the suit land has been gifted to her. As a matter of fact, the appellant's request was for allotment of the disputed site on payment of lease or rent, which request was approved by the Deputy Commissioner. However, no rent was ever fixed nor the C.M. No. 2432 of 2010 in/and LPA No. 832 of 2010 4 appellant ever paid a single penny as rent or license fee for the disputed site. The learned Single Judge has further come to the conclusion that the Deputy Commissioner was not the competent authority to allot the disputed land on lease or rent as the owner of the land was the department which is not under his jurisdiction. When this fact came to the notice of the Deputy Commissioner, the license granted to the appellant was cancelled. An application was moved by the Public Works Department under the Public Premises and Land Eviction Act, 1972, which application was allowed and order of eviction of the appellant from the disputed site was passed on 15.05.1995. The appeal preferred by the appellant against the said order was dismissed vide order dated 21.09.1995. This order had attained finality as no further challenge had been made to the said order. It is thus manifest that the appellant had no right to the disputed site much less to get it transferred in her favour. While evaluating the letter dated 05.09.1995 (Annexure P-5) attached with the writ petition, in which it was asserted by the counsel for the appellant that the Additional Deputy Commissioner recommended to the Deputy Commissioner for transfer of the disputed site to the appellant by registered deed and mutation, the same was found by the learned Single Judge to be not in accordance with law, especially when the land, if falls in Khasra No. 470, belongs to the Public Works Department and if falls in Khasra No. 461, it belongs to the Police Department. The Deputy Commissioner, therefore, had no right, power or authority to transfer its ownership to the appellant. As per paragraph 87 of Financial Commissioner's standing order No. 28 for permanent alienation or disposal of any land belonging to any Department, although no longer required by the department, the Deputy Commissioner is not a competent authority to transfer the C.M. No. 2432 of 2010 in/and LPA No. 832 of 2010 5 ownership of the Government land. It can only be done after seeking orders from the Commissioner and thereafter, with the sanction of the Government, therefore, the question of transferring the ownership of the suit land in favour of the appellant by way of registered conveyance deed and mutation, is without any basis. Even for temporary disposal, the Deputy Commissioner can do so under the orders of the Commissioner, which is not there. While dealing with the writ petition preferred by the appellant- petitioner, the learned Single Judge has held as follows:- “It is also significant to mention that the appellant having claimed in the suit relief of transfer of disputed site to her by registered deed and mutation, also filed writ petition for similar relief without any justification. Filing of writ petition by her is sheer abuse of process of the Court. In the writ petition, the appellant also kept her options open by not specifically pleading as to whether the disputed site falls in khasra no. 470 or it falls in khasra no. 461. In paragraph 18 of the writ petition, the appellant pleaded that the disputed site in her possession is different from the land of Police Department. In paragraph 20(iii) also, the appellant pleaded that Police Department obviously is neither the owner of the suit land nor has any interest in opposing the request of the petitioner. In paragraph 20(v) of the writ petition, it was pleaded that PWD has nothing to do with the land in question. However, perusal of the site plan reveals that khasra nos. 461 and 470 adjoin each other and admittedly, Police Lines exists in khasra no. 461 and road C.M. No. 2432 of 2010 in/and LPA No. 832 of 2010 6 exists in khasra no. 470. Accordingly, the disputed site could either be in khasra no. 470 belonging to PWD or in khasra no. 461 belonging to Police Department, but it cannot be said, as sought to be made out by the petitioner dishonestly in the writ petition, that the disputed site belongs to neither PWD nor Police Department. The petitioner herself has thus not taken a clear stand in the writ petition as to whether the disputed site in her possession is in khasra no. 461 or in khasra no. 470. However, the fact remains that the appellant is running a khokha/restaurant located between the Police Lines and road and she has been ordered to be evicted therefrom under the Eviction Act. There is also no plea either in the plaint or in the writ petition that the suit land was ever gifted to the appellant. On the other hand, the plea is that the land was allotted to the appellant by the Deputy Commissioner on appellant's application dated 30.9.1988 wherein she claimed its allotment on lease or rent only and not by gift or outright transfer. So question of transfer of ownership of the suit land to the appellant does not arise at all.” A plea has been raised by the counsel for the appellant that the respondent-State was required to formulate a policy for rehabilitation of urban street vendors or for allotment of any site to them free of cost or on subsidized price by a Division Bench of this Court vide order dated 04.12.2008 in CWP No. 20490 of 2008 titled as Roop Nath and others vs. Municipal Corporation, Gurgaon and another. He has also referred to a judgment of the Hon'ble Apex Court in Olga Tellis and others vs. Bombay Municipal Corporation and others, AIR 1986 SC 180 and prays that the C.M. No. 2432 of 2010 in/and LPA No. 832 of 2010 7 appellant be granted relief in the same terms. The judgments, referred to above, were in the peculiar facts and circumstances of those cases, which cannot be made applicable to the case in hand. An affidavit has been filed by the Deputy Commissioner before the learned Single Judge that the State has not formulated any policy for rehabilitation of urban street vendors. It has also come on record that the site, where the appellant is running her dhaba, was on a busy road and was creating traffic hurdles and impedes the free flow of the traffic on the said road. The disputed site abuts the busy road in Gurgaon and the public interest would not be duly served if the smooth flow of traffic, which is caused by the dhaba,is allowed to continue there. Therefore, this contention of the counsel for the appellant also cannot be accepted. We are in full agreement with the judgment passed by the learned Single Judge and do not find any reason why the judgment passed by the learned Single Judge dated 06.04.2010 be not upheld. Finding no merit in the present appeal, the same stands dismissed. ( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH ) JUDGE JUDGE July 19, 2010 pj