Hardas Singh & Pratap Singh L.Rs Of ... vs Union Of India & Anr
2011 Latest Caselaw 2449 Del

*            HIGH COURT OF DELHI AT NEW DELHI

+    W.P.(C) No. 344/1993


%                               Judgment delivered on: 9th May, 2011

Hardas Singh & Pratap Singh                             ....Petitioners
L.Rs of late Smt. Sumitra Devi
Proprietor, M/s Gurdial Singh Rajinder
Singh Fuel Depot

                       Versus


Union of India & Anr                                  .... Respondents

Advocates who appeared in this case:-
For the petitioners : Mr S.C.Nigam, Advocate
For the respondents: Ms Saroj Bidawat, Advocate

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

1.    Whether reporters of Local papers may be
      allowed to see the judgment? Yes
2.    To be referred to the reporter or not? Yes
3.    Whether the judgment should be reported
      in the Digest? Yes

VEENA BIRBAL, J.

1. By way of present petition, petitioners have challenged a finding on

a preliminary issue by the Estate Officer, a statutory authority under the

Public Premises (Eviction of Unauthorised Occupants) Act, 1971

(hereinafter referred to as „the PP Act‟) wherein it is held that petitioner is

an unauthorized occupant of public land for commercial purposes and

does not come under the purview of Gadgil Assurance.

Initially the present petition was filed by M/s Gurdial Singh

Rajinder Singh through its proprietor Smt. Sumitra Devi widow of late

Sardar Rajinder Singh. Smt. Sumitra Devi died on 5.6.1995. An

application was filed by Pratap Singh and Hardas Singh for substitution

as her legal representatives. The said application was allowed by this

court vide order dated 1st May, 2003 and aforesaid applicants were

substituted in her place. Amended memo of parties was filed which was

taken on record.

2. Late Sardar Gurdial Singh and Rajinder Singh were real brothers.

They were displaced persons from Pakistan and migrated to India in the

year 1947 along with their family. They had been registered as

refugee/displaced persons vide registration certificate No. 1053 dated

10.10.1947 by the Ministry of Rehabilitation, Govt. of India. They along

with their family had occupied the public land opposite Government

quarter no.50, Reading Road, New Delhi before 15th August, 1950 and

started residing there. Later on they started the business of a coal depot

under the name of M/s Gurdial Singh Rajinder Singh.

3. According to the petitioners, the Government gave an assurance to

displaced persons on the floor of the Parliament on 29th September, 1951,

whereby the said displaced persons who had unauthorisedly occupied the

public land or constructed any building or a part of the building on the

site before 15th August, 1950, were not to be evicted unless they had been

provided with an alternative accommodation on developed land. The

assurance dated 29th September, 1951 on which the said petitioner relied

came to be popularly known as the "Gadgil Assurance".

4. The construction raised on the public land was got demolished by

the authorities in the year 1957. In lieu thereof petitioner shifted to the

present site i.e. open area near Shah Kamal Mosque on the east of

Reading Road, Gole Market admeasuring 255 sq. yds. of land on

temporary leasehold basis which he occupied. The lease continued till

1961 but as the rent was not paid after 1958, the lease got cancelled.

5. Initially in the year 1962, the proceedings for eviction were started

and notices were issued for eviction of the petitioners but as the issues

concerning the validity of the PP Act arose, the notices had to be

dropped. With re-enactment of PP Act, 1971, another show cause notice

was issued for payment of damages for the period from 1.7.1963 to

13.4.1974. Petitioner objected to it, however an order dated 24.8.1976

was passed by the Estate Officer, for payment of damages and eviction.

The petitioners preferred an appeal which also got dismissed on

12.1.1977. Thereafter, the petitioners filed a writ petition being CWP No.

389/1977 against the appellate order. The stay of dispossession was

granted during the pendency of said writ petition.

6. It appears that during the pendency of the Civil Writ Petition No.

389/1977, the respondents initiated proceedings for eviction of various

allottees of coal depots, in which the petitioners again figured. Various

allottees raised a preliminary objection that they being the migrant

refugees were entitled to protection of Gadgil Assurance and could not be

subjected to eviction. This contention did not find favour with the Estate

Officer, who vide the impugned order dated 28.8.1992 held that the said

assurance did not protect the commercial sites and thus dismissed the

objection and listed the case for further proceedings.

7. Aggrieved by the said order, the petitioners have filed the writ

petition, praying, inter alia, for the following reliefs:-

"(i) Issue an appropriate writ against the respondent no. 2 for quashing the proceedings initiated by him under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act and setting aside the impugned order dated 28.8.1992 holding the petitioner to be unauthorized occupant in respect of 271 sq. yds. of

land, Fuel Depot, Shah Kamal Mosque, Reading Road, New Delhi;

(ii) Issue a writ of Mandamus or an appropriate direction against the respondent no. 1 to allot the petitioner the premises in question i.e. 271 sq. yds. of land, Fuel Depot, Shah Kamal Mosque, Reading Road, New Delhi or an alternative business/site/accommodation at appropriate place on permanent basis as a measure for rehabilitation of displaced persons covered under the Gadgil Assurance;

(iii) Direct the respondents as not to displace the petitioner from the present site under occupation pending allotment of alternative site/accommodation and the petitioner be directed to pay the rational license fee @ 7.50 (rupees seven and fity paise only) per 100 sq. yds; and

(iv) Pass order/orders to which this Hon‟ble Court may deem just and proper under the circumstances of the present case and award costs of filing the present petition."

8. The Civil Writ Petition No. 389/1977 got dismissed in default on

8.2.2001. The petitioners did not take any steps for restoration of the said

writ petition.

9. Mr. S.C. Nigam, the learned counsel appearing on behalf of the

petitioners has contended that the petitioners are displaced person

covered under the purview of the Gadgil Assurance and that the

respondent has taken an erroneous view by observing that the commercial

squatters are not covered under the Gadgil Assurance. Learned counsel

submitted that various extracts from the newspapers and reports show that

several other displaced persons have been allotted alternative sites and

shops. The counsel for the petitioners has further contended that the

possession of the accommodation by the petitioner could not be said to be

unauthorized until an alternative accommodation/site is allotted to her

and the same is refused by the respondent. The Gadgil Assurance assured

that the displaced persons in possession of the public premises would not

be evicted without offering alternative accommodation to them. Thus the

petitioners cannot be treated as an unauthorized occupant as no such

alternative accommodation was ever offered to her by the respondents.

The counsel for the petitioners also contended while referring to the

impugned order dated 28th August, 1992 and drew attention to the Para

(d) of the Gadgil Assurance where rates of the land for residential and

commercial purposes have been fixed and further has taken the plea that

if commercial squatters are not covered under the Gadgil Assurance then

why such separate rates for commercial use in respect of squatters under

the Gadgil Assurance have been fixed by the Government. Learned

counsel for the petitioners has further contended that the PP Act applies

to persons who are regarded as unauthorized occupants. The petitioner

has also relied upon an office order dated 27th September, 1966 whereby

on a survey of fuel depots it was discovered by the Land and

Development Office that the said depots existed on the Govt. land. It was

decided that the fuel depot holders, should not be treated as unauthorized

occupants but they should be treated as authorized occupants, and at par

with temporary allottees. The Land and Development Officer should

effect recoveries from them with immediate effect at scheduled rates on

account of occupation charges of these sites. It is contended that the

petitioners are not unauthorized occupant as they are covered by the

office order dated 27th September, 1966 wherein it is stated that the fuel

depot holders should not be treated as unauthorized occupants but should

be treated at par with the temporary allottees. It is also contended that the

respondents are estopped by the principles of promissory estoppel in

initiating proceedings against the petitioners for eviction/damages as on

the assurance and policy of respondent, the petitioners are awaiting

rehabilitation for the last 45 years. Learned counsel for the petitioner has

also contended that the respondent no. 2 has taken the view that the

petitioners are unauthorized occupants, whereas the statutory body of the

area i.e. NDMC has not taken any action against them except for charging

house tax. Thus the respondent no. 2 has no jurisdiction to initiate

proceedings under the PP Act against the petitioner. The learned counsel

for the petitioner further contended that there is no alternative remedy

available to the petitioner against the impugned action except to invoke

the writ jurisdiction of this Hon‟ble Court under Article 226 of the

Constitution of India.

10. In support of his contention, learned counsel for the petitioners has

relied upon:-

1. Iqbal Kaur, Harbans Singh v. E.O., Land &

Dev. Office reported in 1974 Rajdhani Law Reporter (Note)

2. Surender Singh v. Delhi Development Authority reported in

AIR 1988 Delhi 76.

3. Unreported judgment i.e. (WP(C) 707/1979) dated 5.9.1985

titled Tehal Singh v. Union of India & Ors.

11. On the other hand, the learned counsel appearing on behalf of the

respondents has contended that the petitioners have an alternative

remedy of appeal under Section 9 of the PP Act against the impugned

order and the petitioners has not exhausted the said remedy before

approaching this court. The petitioners had another right of petitioning

the committee on „Government Assurance‟ if according to them action

was in contravention of the terms of Gadgil Assurance. Learned counsel

for the respondents has further contended that the petitioners are claiming

benefit under the Gadgil Assurance. Since, the petitioners were not using

the land for residential purposes hence they cannot be said to be covered

under the Gadgil Assurance. The Gadgil Assurance was applicable only

in cases of residential accommodation and as such the same had no

application in relation to the commercial squatters. Learned counsel for

the respondents also contended that the petitioners were allotted this land

near Shah Kamal Mosque, Reading Road, New Delhi on temporary basis

for running the fuel depot. Their unauthorized occupation was

regularized up to certain period. Further the terms and conditions for

extension of the period from 1.7.1963 to 14.1.1966 were offered which

the petitioners failed to comply as such the same were withdrawn due to

non-compliance. Accordingly notice was served upon petitioner. In

response to same petitioner filed a representation. The said

representation was examined and it was decided that action be taken

under the PP Act for eviction and recovery of Govt. dues. Learned

counsel for the respondents has further contended that the order dated 27 th

September, 1966 issued by respondent no. 1 is not applicable to the

petitioners as they were not teh-bazari holders. Petitioners did not pay

any teh-bazari to NDMC. Learned counsel for the respondents has also

contended that NDMC is only a local body and not a land owing agency.

The land belongs to respondent no. 1 and any unauthorized occupant is

liable for action under PP Act. Thus the Estate Officer was within the

jurisdiction for initiating proceedings under the said Act. Learned

counsel for the respondents has further contended that the basic policy

behind the Gadgil Assurance is to re-house and rehabilitate the displaced

persons who at the time of partition occupied the public land as a

necessity and who are poor enough and not capable to acquire and

purchase any house for themselves. Thus the commercial squatters did

not fall under the provisions of Gadgil Assurance.

12. The basic issue for our consideration is whether "Gadgil

Assurance" is applicable in the case of the petitioners and whether the

respondents have taken erroneous view of the "Gadgil Assurance" by

observing that the same did not apply to the commercial premises.

13. It may be noted at the outset that the judgments relied by the

counsel for the petitioners are of no help to him. The said judgments

were delivered by learned Single Judge of this Court, while as noticed

hereinafter, there are pronouncements of Division Benches of this Court

specifically dealing with the issues raised by the petitioner in this case.

Moreover, on perusal of the judgments relied upon by learned counsel

for petitioner, we find that in Tehal Singh‟s case (supra) the learned

Single Judge did not deal with the merits of the case and had merely

remanded the matter for fresh consideration by the Estate Officer after

giving a hearing to the petitioner before it. There was no discussion

about the issue of applicability of Gadgil Assurance to the non-residential

occupation of public land. In Surender Singh‟s case, DDA had already

constructed shops/stalls and one such shop/stall had already been allotted

to the petitioner in the year 1972. However, the possession of the shop

had not been delivered and DDA had been delaying the same on one

pretext or the other and the learned Single Judge issued a writ of

mandamus commanding DDA to hand the possession of shop/stall.

The issue relating to applicability of the `Gadgil Assurance‟ to non-

residential occupation of public land was specifically considered by a

Division Bench of this Court in the case titled Madan Lal Jain v. Union

of India & Ors., dated 11th July, 2002 in W.P.(C) No. 3530/1992. It

may be noted here that the judgment was also in the context of a

petitioner who was a migrant refugee and running a coal depot. The

impugned order in that writ petition had been passed almost

contemporaneously with the order impugned in the present writ petition.

The Court after referring to the Gadgil Assurance and the Office Order

dated 27th September, 1966 held as follows:-

"The Gadgil Assurance, as noticed hereinbefore, must be considered having regard to the fact situation obtaining at the relevant point of time, is required to be construed. Condition No. (b) referred to hereinbefore states that alternative accommodation would be provided on development land which would be as far as practicable near the place of business or employment of the displaced persons. Had the intention of the Hon‟ble Minister to give the said assurance been confined to commercial squatters also, the words "near the place of business or employment" would not have been mentioned. The very fact that alternative accommodation was to be provided for near the place of business or employment, such an unauthorized occupation, as contemplated, was occupation for residential purposes.

Mr Jayant Bhushan, the learned counsel appearing on behalf of the Union of India has placed before us from the records, an Office Memorandum dated 31st January 1969, the relevant portion whereof is in following terms:

Para 29 - The Committee felt that after taking clearances from the Committee on Assurances in their Third Report - December 1956, no serious effort was made by the authorities to regularize the pre - 15th August 1950 constructions put up the displaced persons or to provide them alternative accommodation on developed land as far as practicable, near the place of business or employment of displaced persons as envisaged in the Gadgil Assurance given in the House on the 29th September, 1951.

The position was reviewed and it was felt that, by and large, the Gadgil Assurances had been

implemented, except in a few stray pockets, where the unauthorized occupation by displaced persons could not be regularized because of the non conforming land-use of the sites and the reluctance of the persons to shift. It was also explained that the Gadgil Assurances covered residential squatters and not commercial squatters. This position had already been clarified to the Lok Sabha Secretariat, when the position in respect of Ice Factories on Bela Raod was explained."

The said Office Memorandum was issued at a point of time when there did not exist any dispute. The genuineness of the said Office Memo, therefore, is undisputable. A bare perusal of the said Office memo clearly shows that the same covers only residential areas in relation whereto an encroachment had been made by a poor person.

In any event, it is now well known that an assurance given by the Minister does not culminate in a legal right in derogation of the provisions of statute. An assurance given by a Minister during debate of a Bill which has got nothing to do with the provision of the said Act, in our opinion, would not clothe the petitioner with the legal right to maintain this application and/or to contend that the provisions of the said Act have no application."

The Court also noted in aforesaid case that respondents have

categorically stated that even the policy of 1966 is no longer in existence.

14. The issue had again come up before another Division Bench of this

Court in the bunch of four cases, the lead case being Randhir Kumar

Sharma through LRs v. Union of India and Ors. reported in

158(2009) DLT 225. In all the four cases, the petitioners were displaced

persons from Pakistan who migrated to India in 1947 and occupied the

site in dispute and started running coal depots. Again the petitioner in

those cases relied on the Gadgil Assurance as also the office order dated

27th September, 1966 to support their prayer for allotment of plot. This

Court observed that the issue as to whether the Gadgil Assurance shall

apply to commercial sites was no longer res integra and was fully covered

by the judgment in Madan Lal‟s case. The Court also observed that in the

case of said nature, having regard to the larger public interest, exercise of

discretionary jurisdiction under Article 226 of the Constitution was not

called for and thus dismissed the writ petitions.

15. Shri S.C. Nigam, learned counsel for the petitioners who had also

appeared for the petitioner in Madan Lal‟s case and for some of the

petitioners in Randhir Kumar Sharma‟s case was unable to point out any

distinguishing feature in the present case and the earlier cases.

16. In view of the clear pronouncements of this Court, with which we

respectfully agree, we hold that the Gadgil Assurance is not applicable for

commercial sites and thus the present petition is liable to be dismissed.

17. Though we have held that the Gadgil Assurance had no

applicability for the commercial sites but even otherwise also the

petitioner in the instant case can have no grudge. M/s Gurdial Singh

Rajinder Singh were admittedly allotted the instant site of 255 sq. yds. of

land near Shah Kamal Road, Reading Road, New Delhi in the year 1957

on temporary lease basis vide Annexure VI to the writ petition, in lieu of

the demolished fuel depot at Arya Samaj Road, New Delhi. They were

offered an extension of lease by the government, which they did not

accept. The reasons for declining the extension have not been disclosed

in the writ petition or in the rejoinder. The lease continued for some time,

but as the rent was paid only till 1958, the lease was cancelled in the year

1961.

18. There is yet another reason, why the present writ petition must fail.

As noted above, the lease in favour of M/s Gurdial Singh Rajinder Singh

had earlier got cancelled in the year 1961 due to non-payment of rent.

Initially, the proceedings for eviction were started against it and notices

were issued for eviction but as the issues concerning the validity of the

PP Act arose, the notices had to be dropped. Ultimately, the orders for

eviction and damages were passed in the year 1976. The appeal

stipulated under the PP Act also got dismissed. Against the appellate

order, writ petition being CWP No. 389/1977 was filed. The stay of

dispossession was granted in that writ petition. That writ petition got

dismissed in default on 8.2.2001. The petitioners did not take any steps

for restoration of the said writ petition. The challenge to the eviction

order, which had been passed in the year 1976 and decided by the Addl.

District Judge in appeal came to an end thereafter. The petitioners or

their predecessor-in-interest became trespassers of the leased land

thereafter. Thus the outcome of the present writ petition which is in

respect of a subsequent cause of action would not be of any help to the

petitioners in any manner.

The writ petition is dismissed with no costs.

VEENA BIRBAL, J.

BADAR DURREZ AHMED, J.

May 9th, 2011 ssb/kks