Punjab-Haryana High Court
Ashwani Kumar Sharma vs Bsnl And Ors on 21 October, 2024
Neutral Citation No:=2024:PHHC:137780
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
225 CWP-5331-2022
Date of Decision: 21.10.2024
ASHWANI KUMAR SHARMA
... Petitioner
VERSUS
BHARAT SANCHAR NIGAM LIMITED AND OTHERS
... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
Present: Mr. Rajesh Kumar, Advocate
for the petitioner.
Ms. Anita Sharma, Advocate
for the respondents.
****
VINOD S. BHARDWAJ, J. (ORAL)
Prayer in the present petition is to direct the respondent-BSNL to
vacate and clear the land of the petitioner.
Learned counsel appearing on behalf of the petitioner contends that
the respondent-BSNL had approached late Ram Avtar Sharma- father of the
petitioner for taking his land on lease and the agreement in this regard was
executed on 25.04.2005. Initially the said agreement was executed for a period of
five years and was extendable for a further period of five years. The extension of
lease deed/agreement was thereafter at the option of both the parties, with mutual
consent. If no such mutual agreement could be arrived at between the parties, the
respondent-BSNL could have the option of retaining the land for a further period
of one year only, commencing from the date of expiry of lease agreement, so that
it could make its alternative arrangements within such time.
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Father of the petitioner passed away on 19.08.2013. The petitioner
and his brother thereafter notified the respondent-BSNL, vide letter dated
24.03.2015, expressing their unwillingness to extend the lease deed and requested
respondent-BSNL to vacate the land in question and to remove all installations
from there. It is contended that since the respondent-BSNL did not vacate the
premises even after expiry of the extended permissible period, a representation as
well as legal notice was sent by the petitioner to the respondent-BSNL. Thereafter,
Writ Petition (Civil) No.9371 of 2021 was filed by them before the Delhi High
Court, which was dismissed by the Single Bench against which LPA No.342 of
2021 was also preferred. The order of the learned Single Judge of Delhi High
Court was upheld by the Division Bench and the LPA was dismissed.
Counsel for the petitioner further contends that the abovementioned
writ petition had been dismissed by the learned Single Judge of the Delhi High
Court on the ground of territorial jurisdiction since the land in question was
situated within the telecom circle of Mahendergarh. Hence, dismissal of the said
writ petitioner would not operate as a bar against the present writ petition being
entertained by this Court. He also places reliance on the judgment of Allahabad
High Court (Lucknow Bench) in the matter of Tasirul Nisha Versus BSNL and
others bearing No.CWP-1042 of 2021 to contend that once the contract stands
determined between the land-owner and BSNL, the owner would be entitled to
approach the Writ Court for seeking possession of his land. He contends that even
in contractual matters, where action of the State Agency is arbitrary, a writ petition
can be entertained by the High Court.
Counsel for the respondent-BSNL, on the other hand, argues that the
dismissal of the writ petition was not only on the ground of the territorial
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jurisdiction, but it was also held by the learned Single Judge of the Delhi High
Court in her order dated 01.09.2021 that a writ petition for seeking possession of
the land, which was leased out to the respondent-BSNL, was not maintainable and
that the only remedy available to the petitioner was to file an eviction petition/suit
for possession. The operative part of the findings recorded by the learned Single
Judge of the Delhi High Court in her order dated 01.09.2021 is reproduced
hereinafter below:
"5. In my view, once it is the petitioner's own case that the
respondent has come into possession of the subject land pursuant to
a valid lease deem, the only remedy available to the petitioner is to
file an eviction petition/suit for possession as the case may be, under
the relevant statute. Even otherwise, not only is the subject land
situated in Haryana, but the lease deed has also been executed in
Haryana and, therefore, this Court does not have territorial
jurisdiction to deal with the present petition."
The Division Bench of the Delhi High Court, while dealing with LPA
No.342 of 2021, dealt with the arguments on both the issues and again returned a
finding to the effect that the remedy available to the petitioner was only to file an
eviction petition or a suit for possession and the writ remedy could not be resorted
to. The operative part of the order dated 23.09.2021 passed by the learned Division
Bench of the Delhi High Court, reads thus:
"5. The learned Single Judge vide the impugned order, dismissed
the writ petition on twofold grounds, viz., the remedy available to the
Appellant is to file an eviction petition/suit for possession and the
land being situated in Haryana and the Lease Deed also having been
executed in the State of Haryana, this Court does not have the
territorial jurisdiction to entertain the petition.
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6. Looking at the nature of relief sought, there cannot be any
doubt that the Appellant is seeking possession of the subject land
which was leased out by his late father to the Respondent. In our
view, the remedy available to the Appellant is to file an eviction
petition or a suit for possession, as the case may be and no infirmity
can be found with this observation of the learned Single Judge. Writ
remedy under Article 226 of the Constitution of India is an
extraordinary remedy and cannot be resorted to by an owner/lessor
of a property for seeking eviction or in the nature of suit for
possession. In any case, the matter would involve disputed questions
of fact and entail leading of evidence and a writ petition is thus not
the appropriate remedy available to the Appellant.
7. We are also in agreement with the finding of the learned Single
Judge that this Court has no territorial jurisdiction to entertain the
present petition as the subject land is situated in Haryana and even
the Lease Deed was executed in State of Haryana i.e., beyond the
territorial boundaries of this Court. Merely because the Appellant
resides in Delhi, as was sought to be argued by learned counsel for
the Appellant, this Court could not have territorial jurisdiction to
entertain the petition."
She thus contends that the plea of maintainability of writ petition to
seek eviction of respondent-BSNL was examined by the Division Bench and the
stand taken by the respondent-BSNL already stands affirmed. A writ petition
before this Court would thus not be maintainable.
I have heard the learned counsel for the respective parties and have
gone through the documents and record available on case file with their able
assistance.
Even though an arduous effort has been made by the counsel for the
petitioner by placing reliance on the judgment of the Allahabad High Court in the
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case of Tasirul Nisha (supra), however, I am of the opinion that the said judgment
would not be applicable to the facts and circumstances of the present case.
Undisputedly, the petitioner had filed a writ petition before the Delhi
High Court, wherein, apart from dismissing the writ petition on the ground of
territorial jurisdiction, the Delhi High Court also recorded a finding that a writ
petition for seeking eviction of BSNL, to whom possession of land was delivered
vide a lease deed/agreement executed between the parties, would not be
maintainable and that the remedy available to the petitioner was only to file a suit
for possession by way of eviction of the respondent-BSNL.
The said finding recorded by the learned Single Judge of the Delhi
High Court, was also challenged by the petitioner before the Division Bench in
LPA No.342 of 2015, wherein the said finding was reiterated in paragraph No.6
of the order passed by the Division Bench.
Under the given circumstances, the issue of maintainability of writ
petitioner for seeking eviction of the respondent-BSNL by way of an
extraordinary remedy under Article 226 of the Constitution already stands
returned by the Hon'ble Delhi High Court against the petitioner. Notwithstanding
that the Delhi High Court dismissed the petition on the ground of territorial
jurisdiction also, however, the said finding nonetheless still holds the ground and
has not been set aside. The said finding on the issue of maintainability thus
operates as an estoppel against the petitioner to the said extent of maintainability
of writ petition for seeking eviction of respondent-BSNL.
Under the given circumstances, the said plea cannot now be re-
examined only because of change of Forum by the petitioner. It was within the
rights and control of the petitioner to make a request before the Delhi High Court
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that the finding on maintainability of writ petition for seeking eviction be
expunged or removed; but having chosen not to seek the said relief, this Court
would not be justified in ignoring the said finding more so when the litigating
parties as well as the subject matter of the property remains the same.
Consequently, the present writ petition is hereby dismissed with
liberty to the petitioner to take recourse to his alternative remedies available to
him in accordance with law for seeking redressal of his grievance(s).
(VINOD S. BHARDWAJ)
21.10.2024. JUDGE
rajender
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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