Samasya Samadhan Manch (Non ... vs Municipal Corporation Of Delhi ...
2012 Latest Caselaw 3389 Del

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         IN THE HIGH COURT OF DELHI AT NEW DELHI


                     WRIT PETITION(C) NO.3068/2012


SAMASYA SAMADHAN MANCH                                     ..... Petitioner
(NON GOVERNMENT ORGANIZATION)

                                  versus

MUNICIPAL CORPORATION OF DELHI (NORTH)
& OTHERS                                                   .... Respondents

                                        Date of Decision: 21st May, 2012

Advocates who appeared in this case:


For the Petitioner       :      Mr. Atul T.N. with Mr. A. K. Bhagat,
                                Advocates.

For the Respondents      :      Mr. Naval Kishore Jha with
                                Mr. Vinod Mantoo, Assistant Law
                                Officer, MCD.

CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

SUDERSHAN KUMAR MISRA, J. (ORAL)

CMNo.6608/2012 in WP(C) No.3068/2012

Exemption, as prayed for, is allowed, subject to all just exceptions.

This application stands disposed of.

WP(C) No.3068/2012

1. This petition praying for orders to restrain the MCD from

recovering possession of certain premises allotted to its erstwhile

employees during the course of their employment, has been filed by an

organization styled as "Samasya Samadhan Manch", stated to be a non-

government organization. While a copy of the certificate of registration

of this organization is annexed, its aims and objects have not been

annexed nor have the aims and objects of this organization been

mentioned in the petition. Furthermore, the petition has not been signed

by anyone on behalf of the petitioner. There is, however an affidavit of

one Mr. Kamal Kaushik, son of Late Sh. C. V. Kaushik, who claimes to

be the General Secretary of the organization, annexed to the petition. I

notice that in paragraph 2 of the affidavit, it is stated that, ".....the

contents of the accompanying writ petition are read over to me in my

vernacular...."; this obviously means that the General Secretary of the

organization, who has filed this supporting affidavit, does not understand

the English language. However, no affidavit in the language known to the

person has been filed in support of the petition. There is also no

certificate by the Oath Commissioner that either the contents of the

affidavit, or the petition, have been explained to Mr. Kaushik in his

presence. Furthermore, although counsel for the petitioner claims that the

petition concerns five persons, whose names are mentioned in paragraph

5 of the petition, the main thrust of the petitioner's case appears to be to

secure some sort of blanket orders restraining the MCD from recovering

possession of its own premises in general. This is also reflected from the

prayer clauses which are all structured in a general manner without any

reference of the five individuals or their premises which have been

mentioned in paragraph 5 of the petition.

2. I further notice that as regards the five persons mentioned in

paragraph 5, no particulars about their date of retirement have been

mentioned. Counsel for the petitioner submits at the Bar that all of them

have retired after February, 2012. Counsel for the petitioner further

admits that, under the terms of their employment, all the five persons are

obliged to surrender the premises on their retirement from service with

the MCD. It is nowhere pleaded that any further right has enured to any

of these five persons to hold on to these premises beyond their retirement.

No rules governing these premises, and their return to the employer after

retirement, have been annexed. The only plea is limited to a right claimed

by the petitioner organization on behalf of the five persons mentioned in

paragraph 5 not to be evicted from the premises, on which they

admittedly have no claim, without what is termed as, "due process of

law". It is also admitted at the bar that under the terms and conditions of

their employment with the MCD, the five persons in question were

obliged to vacate the premises forthwith, and that their continuance in the

premises is without any legal right; and that they are tresspassers in the

premises. It is also not the case of the petitioner that they are in any sort

of settled possession of these premises after their possession became

illegal; nor has it been alleged anywhere that the respondent/MCD

countenanced their continued possession beyond the term of allotment,

even for a day.

3. Counsel for the petitioner also states that he is not in a

position to state whether there exist any provisions under the rules and

regulations governing the employment of the aforesaid five persons

which would enable them to seek further extension of time for vacating

the premises under the terms. According to him, the said individuals

have in any case not even made any such request.

4. Mr. Vinod Mantoo, Assistant Law Officer, MCD, who is

present on advance notice, states that after retirement an employee is

allowed four months extension at one go, subject to payment of double

the license fee for the first two months, and for the next two months, four

times the license fee is chargeable. In addition, four months further

extension can also be granted on specified medical grounds, subject to

payment of six times the license fee. These employees are stated to have

retired from February, 2012 onwards. They have not sought any

extension of time to vacate the premises from the MCD under the rules.

Obviously, they want to use this method to hang on, at least under cover

of interim orders, as long as possible, knowing, as we all do, the delays

inherent in the legal system. I am also conscious any such order, interim

or final, will open the flood gates. Additionally, to my mind, even these

proceedings constitute part of "due process" where the petitioner has

undoubtedly been afforded an opportunity of showing any right to the

premises. He has been heard at length. No cause is shown why

possession should not be returned to the owner. On the contrary, he

admits that he has no right in fact, or in law to retain possession. This

approach and the admitted facts also distinguish this case from the line of

decisions where some protection is afforded to those who are admittedly

in a settled possession for long after, either having entered unlawfully or,

after their possession had turned unlawful for any reason.

5. In effect, the petitioner is saying that though he has no

enforceable right in the premises and that the respondent is undeniably

entitled to its return, but he is determined to usurp and deny the

respondent's right to the property and will only countenance being moved

under a coercive process either through courts, or otherwise, as

recognized in law, for such persons; and that this Court in its writ

jurisdiction must assist him in carrying out this object.

6. To protect the petitioner under such circumstances would, to

my mind, amount to enabling a self confessed transgressor, without even

a modicum of vested interest in the property, to perfect a device to retain

the State's property by taking an unfair advantage of the lapse of time

that is normal and inevitable in the legal process, even before a Writ

Court.

7. In effect, what he is saying is even a rank trespasser cannot

be removed by reasonable force from any property by the owner once he

has entered it, without having recourse to legal proceedings. I do not

agree. To countenance such a proposition can lead to disastrous

consequences. For instance, a guest, or employee or customer, or anyone

else similarly situated, could immediately demand similar protection the

moment his presence in any premises has become unauthorized. It bares

repetition that some protection can only be afforded in those limited cases

where, unlike this case, the unauthorized possession in question has taken

on the colour of, "settled possession", over the passage of time. In any

case, as in suits, the writ court is not powerless to give directions even to

a petitioner and, in a case such as this, a direction to the petitioner to

vacate the premises would also be warranted.

8. In the peculiar facts and circumstances of this case, I do not

consider it a fit case for the exercise of extra ordinary writ jurisdiction of

this Court under Article 226 of the Constitution of India.

9. The writ petition is dismissed in limine.

CMNo.6607/2012 in WP(C) No.3068/2012

In view of the orders passed in the main writ petition, this

application has become infructuous and the same is disposed of as such.

SUDERSHAN KUMAR MISRA, J.

MAY 21, 2012 dr