Uttarakhand High Court

Paliwal And Others vs 2008 Passed By The District ... on 21 July, 2023

         IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL

       THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                              AND
           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                      21ST JULY, 2023


        WRIT PETITION NO.999 OF 2009 (M/S)


Between:

Narayan Singh Rawat and Others                ....Petitioners

and

State of Uttarakhand and Another           ......Respondents

Counsel for the Petitioners : Mr. Pramod Bailwal, Advocate

Counsel for the Respondents : Mr. Pradeep Joshi, Addl. Chief Standing Counsel

WITH WRIT PETITION NO.1971 OF 2011 (M/S)

Between:

Vijay Kumar and Others ....Petitioners

and

State of Uttarakhand and Others ......Respondents

Counsel for the Petitioners : Mr. M.S. Tyagi, Senior Advocate assisted by Mr. Sunil Chandra, Advocate

Counsel for the Respondent : Mr. Pradeep Joshi, Nos. 1 & 2 Addl. Chief Standing Counsel

Counsel for the Private : Mr. Siddhartha Singh, Respondent - Bharat Advocate with Mr. Mohd.

Sadhu Samaj                            Umar, Advocate

                              WITH

       WRIT PETITION NO.2048 OF 2011 (M/S)


Between:

Krishna Lal Sharma and Others                    ....Petitioners

and

State of Uttarakhand and Another              ......Respondents


Counsel for the Petitioners        :   Mr. M.S. Tyagi, Senior
                                       Advocate assisted by Mr.
                                       Sunil Chandra, Advocate


Counsel for the Respondents :          Mr. Pradeep Joshi,
                                       Addl. Chief Standing
                                       Counsel
                               Reserved on : 07.07.2023
                               Delivered on : 21.07.2023

Upon hearing the learned counsel for the parties, this Court made the following judgment :

(Per : Shri Alok Kumar Verma, J.)

In SLP (Civil) 10329 of 2023, titled "Dinesh Kumar

Paliwal and Others vs. Muktinath Pandey and Others",

arising out of the order dated 22.12.2022, passed by this

Court in Writ Petition (PIL) No.116 of 2017, the Hon'ble

Supreme Court, by the Order dated 12.05.2023, has

requested this Court to take up WPMS No.999 of 2009,

along with WPMS No.1971 of 2011 and WPMS No.2048 of

2011 immediately on board for final hearing. The Chief

Justice has been requested to assign the abovementioned

Writ Petitions to an appropriate Bench, with an endeavour to

decide the said Writ Petitions by 31.07.2023.

2. These Writ Petitions were listed on 09.06.2023.

We asked Mr. M.S. Tyagi, learned Senior Advocate for the

writ petitioners to proceed to argue the Writ Petitions. It was

argued on behalf of the learned Senior Advocate that the

said Writ Petitions cannot be heard by the Division Bench,

and should be assigned by the Chief Justice to a Bench of

learned Single Bench for hearing. We rejected the said

submission of Mr. M.S. Tyagi, learned Senior Advocate. Mr.

M.S. Tyagi, learned Senior Advocate, stated that he was not

ready with his arguments, and he sought an adjournment.

3. At the time of hearing on 07.07.2023, this Court

was informed by Mr. Mukesh Rawat, learned counsel for the

petitioners in Writ Petition (PIL) No.116 of 2017 that a SLP

was filed against the order of this Court dated 09.06.2023,

which has been dismissed by the Hon'ble Supreme Court.

4. The petitioners in these three petitions have

approached this Court under Article 226 of the Constitution

of India with the following prayers :-

Writ Petition No.999 of 2009 (M/S) :-

"i) Issue a writ, order or direction in the nature of

certiorari quashing the impugned order dated

01.01.2008 passed by the District Magistrate

(Annexure No. 18)

ii) Issue a writ, order or direction in the nature of

mandamus directing the respondents to consider the

claim of each of the petitioners for grant of lease in

their respective shops after taking into consideration

the order passed by the District Magistrate dated

21.09.1988, order dated 27.02.1989 alongwith the

report of Naib Tehsildar dated 16.04.1989 and the

recommendation made by the Tehsildar dated

20.04.1989 and till then the petitioners may not be

evicted.

iii) Issue any suitable writ, order or direction, which this

Hon'ble court may deem fit and proper on the basis of

the facts and circumstances of the case.

iv). Award the cost of the petition to the petitioners."

Writ Petition No.1971 of 2011 (M/S):-

"i) Issue a writ, order or direction in the nature of

certiorari quashing the impugned order dated 1.1.2008

issued by respondent no.2 annexed as Annexure No.3

to the writ petition.

ii) Issue a writ, order or direction, in the nature of

mandamus commanding the respondents to consider

the claim of the petitioners for grant of lease in their

respective shops after taking into consideration the

order dated 21.09.1988, issued by the District

Magistrate, the order dated 27.02.1989 along with the

report of Naib Tehsildar dated 16.04.1989 and the

recommendation made by the Tehsildar dated

20.04.1989 and till then the petitioners may not be

evicted.

iii) Issue a writ, order or direction which this Hon'ble

Court may deem fit and proper under the

circumstances of the case.

iv) Award the cost of the petition."

Writ Petition No.2048 of 2011 (M/S):-

"i) A writ, order or direction in the nature of certiorari

quashing the order dated 01.01.2008 passed by the

District Magistrate Pauri Garhwal.

ii) Issue a writ, order or direction in the nature of

mandamus directing the respondents to consider the

claim of each of the petitioners for grant of lease in

their respective shops after taking into consideration

the order passed by the District Magistrate dated

21.09.1988, order dated 27.02.1989 along with the

report of Naib Tehsildar dated 16.04.1989 and the

recommendation made by the Tehsildar dated

20.04.1989 and till then the petitioners may not be

evicted.

iii) Any other suitable writ, order or direction, which

this Hon'ble court may deem fit and proper in the

circumstances of the case.

iv) Award the cost of petition to the petitioner."

5. By this order we dispose of this and the connected

two writ petitions also in view of the common questions of

law and facts involved in these writ petitions.

6. We have taken the material facts from WPMS

No.2048 of 2011.

7. Brief facts in nutshell for proper adjudication of

the dispute involved in the present petitions are, the State

of Uttar Pradesh granted a lease for 40 years to Geeta

Bhawan, Swargashram, Rishikesh (in short, "Geeta

Bhawan") through a registered lease deed dated 11.08.1950

for the land Khasra No.63. The total area of lease land was

23 Nali. The said land was allotted to Geeta Bhawan for

construction of Pucca Ghat.

8. Geeta Bhawan constructed the Ghat on certain

portion of the allotted land, rest of the land was lying

vacant. Geeta Bhawan sublet the vacant land, which was

measuring 18 Nali 12 Muthi, to one another religious

organization namely Bharat Sadhu Samaj in the year, 1955.

Subsequently, Bharat Sadhu Samaj constructed more than

45 shops, some flats and Dharmshala on the top of the

shops in the year 1959-60, which were given on rent.

Petitioners are tenants on the shops and Bharat Sadhu

Samaj is getting the rent from them.

9. A show cause notice dated 09.07.1987 was issued

to the Manager, Geeta Bhawan, the principal lease holder,

by District Magistrate/Deputy Commissioner, Pauri Garhwal

mentioning that 40-45 shops of Bharat Sadhu Samaj are

built on a part of the lease granted to Geeta Bhawan and

rent is also being taken by Bharat Sadhu Samaj. No prior

approval was taken by Geeta Bhawan before handing over

the possession. Thus, the terms and conditions of the lease

deed have been violated by Geeta Bhawan. District

Magistrate/Deputy Commissioner asked the Manager of

Geeta Bhawan why not the lease agreement dated

11.08.1950 be cancelled.

10. Thereafter, by an order dated 21.09.1988, Deputy

Commissioner/District Magistrate, Garhwal cancelled the

lease deed dated 11.08.1950, by which the lease was

granted to Geeta Bhawan. It was mentioned in the order

dated 21.09.1988 that the lease of the land on which Pucca

Ghat of Geeta Bhawan is built can be granted on application

of Geeta Bhawan. In the said order dated 21.09.1988, it was

also mentioned that several shopkeepers are in possession

of a part of the lease land. Therefore, the Sub-Divisional

Magistrate, Kotdwar was directed to immediately get the

said land inspected and submit the details of the names and

addresses of the shopkeepers occupying the land within a

month, so that actual occupants could be considered for

grant of lease.

11. District Magistrate, Garhwal sent an another letter

dated 27.02.1989 to the Sub-Divisional Magistrate, Kotdwar

in which it was mentioned that due to the dispute, there is a

loss of revenue, therefore, it would be appropriate and

necessary in the interest of revenue to regularize the grant

in favour of the shopkeepers, for which applications have

been received from the concerned shopkeepers. It was also

mentioned in the said letter that if the applications are not

submitted by the concerned shopkeepers, they can be

evicted but loss of revenue cannot be tolerated.

12. As per the order passed by Tehsildar, Kotdwar on

District Magistrate's letter dated 27.02.1989, spot was

inspected by Naib Tehsildar, Kotdwar and measurement was

done after receiving applications from the shopkeepers. He

found that 38 shops were constructed over 16 Nali of the

land. He forwarded his report to Tehsildar, Kotdwar. On the

report of Naib Tehsildar, Tehsildar, Kotdwar noted on

20.04.1989 that he agrees with Naib Tehsildar's report. He

(Tehsildar) recommended the grant in the name of those

persons who were actually in possession.

13. Thereafter, notices dated 02.11.1998 under

Section 4 (1) of the Uttar Pradesh Public Premises Act, 1972

(in short, "Act, 1972") (as applicable in the State of

Uttarakhand) were issued to the petitioners and other

shopkeepers mentioning therein that they are the illegal

occupants. The petitioners challenged the said notices.

However, the Prescribed Authority passed the eviction order

against the petitioners and other shopkeepers. Against the

eviction order, passed by Prescribed Authority, petitioners

and other shopkeepers preferred appeals before the District

Judge, Pauri Garhwal. Out of 37 appeals, 20 appeals were

allowed and the rest of the appeals were dismissed. State

and shopkeepers, whose appeals were dismissed, preferred

writ petitions. High Court remanded all the writ petitions by

order dated 18.05.2006. District Judge by judgment dated

06.08.2007 dismissed all the appeals. Against the dismissal

of appeals, writ petitions were preferred. Some writ petitions

were dismissed and in some writ petitions, petitioners were

directed to make fresh representations before the District

Magistrate for grant of lease of the land. The writ petitioners

along with other shopkeepers made fresh representations

before the District Magistrate, Pauri Garhwal. District

Magistrate rejected the representations, submitted by the

petitioners, by order dated 01.01.2008, which is impugned

in the present writ petitions.

14. Heard learned counsel for the parties and perused

the record.

15. Mr. M.S. Tyagi, learned Senior Advocate and Mr.

Pramod Bailwal, Advocate contended that the State

Government is the owner of the land but the shops were

constructed by Bharat Sadhu Samaj. Petitioners are tenants

since last 40-45 years. Petitioners are running their shops,

but the grievances of the petitioners were not considered by

the District Magistrate, Garhwal while passing the impugned

order dated 01.01.2008. The grievances of the petitioners,

which are genuine, were appreciated by the then District

Magistrate in its order dated 21.09.1988 as well as in the

order dated 27.02.1989. Petitioners have vested rights over

their shops for running their business and they had

legitimate expectation in assuming that the State

Government would act in pursuant to the order dated

21.09.1988 and order dated 27.02.1989, passed by District

Magistrate, and, recommendation of Tehsildar, Kotdwar

dated 20.04.1989. Therefore, the impugned order dated

01.01.2008 is arbitrary, unjust and improper.

16. On the other hand, Mr. Pradeep Joshi, learned

Additional Chief Standing Counsel appearing for the State,

contended that a lease was granted by the State of Uttar

Pradesh to Geeta Bhawan in the year, 1950 for construction

of Pucca Ghat on Plot No.63 area 23 Nali. Geeta Bhawan

instead of constructing Pucca Ghat, constructed Ghat and

house on 2 Nali 8 Muthi land and remaining 18 Nali 12 Muthi

land was subletted to Bharat Sadhu Samaj in contravention

of the lease deed. Bharat Sadhu Samaj constructed

commercial shops over 18 Nali 2 Muthi land and let out the

said shops to the petitioners on rent. After coming the said

facts in the knowledge of the District Magistrate, a show

cause notice was issued to the Manager, Geeta Bhawan on

09.07.1987 and after hearing to him, the District Magistrate,

vide its order dated 21.09.1988, cancelled the lease of

Geeta Bhawan and after cancellation of lease, granted to

Geeta Bhawan all the persons, who are in illegal possession,

including the petitioners, have become unauthorized

occupants. Therefore, the impugned order dated 01.01.2008

has been passed rightly keeping in view the public interest.

17. The points that arise for our consideration in these

petitions are -

(i) The scope of the legitimate expectation of the

petitioners.

(ii) Whether the expectation was legitimate.

(iii) Vested right of the petitioners.

(iv) Whether the doctrine of legitimate expectation can

be applied in the present matters.

(v) Whether the impugned order dated 01.01.2008 is

arbitrary, unjust and improper.

18. In State of Jharkhand and Others vs.

Brahmputra Metallics Ltd., Ranchi and Another, 2021

(1) SCJ 131, the Hon'ble Supreme Court held that the

doctrine of legitimate expectation cannot be claimed as a

right in itself, but can be used only when the denial of a

legitimate expectation leads to the violation of Article 14 of

the Constitution.

19. The doctrine of 'Legitimate Expectation' has been

constituted by two words, 'legitimate' and 'expectation'.

Therefore, expectation should be legitimate, i.e. expectation

should be fair, logical, justifiable, valid, reasonable,

acceptable and protectable. Any expectation which is based

on sporadic or casual or random acts or on any assumption,

or which is unreasonable, illogical or invalid cannot be a

legitimate expectation. "Legitimate Expectation", is not the

same thing as anticipation. It is also different from a mere

wish or desire or hope. This doctrine is based on Article 14

of the Constitution of India and the rule of reasonableness

and fairness. The expectations must be based on some

statement or undertaking by, or on behalf of, the public

authority which has the duty of making the decision.

20. The doctrine of legitimate expectation is not of

universal application under all circumstances. To decide

whether an expectation is a legitimate one is contextual and

has to be decided on a case by case basis. The legitimacy of

an expectation can be inferred only if it is founded on the

sanction of law or custom or an established procedure

followed in regular and natural sequence. In State of

Jharkhand and Others vs. Brahmputra Metallics Ltd.,

Ranchi and Another (Supra), the Hon'ble Supreme Court

held that whenever the question arises, it is to be

determined not according to the claimant's perception but in

larger public interest.

21. The petitioners who base their claim on the

doctrine of legitimate expectation, in the first instance, must

satisfy that there is a foundation and thus have locus standi

to make such a claim.

22. The contention of Mr. M.S. Tyagi, learned Senior

Advocate and Mr. Pramod Bailwal, Advocate appearing for

petitioners is that petitioners are running their shops since

last 40-45 years. The grievances of the petitioners were

appreciated by the then District Magistrate in his order dated

21.09.1988 as well as in the order dated 27.02.1989.

Petitioners have vested rights over their shops for running

their business and they had legitimate expectation in

assuming that the State Government would act in pursuant

to the order dated 21.09.1988 and order dated 27.02.1989,

passed by District Magistrate, and, recommendation of

Tehsildar, Kotdwar dated 20.04.1989.

23. We do not find any substance in the contention,

raised on behalf of the petitioners. On hearing the

contentions of both the parties and perusing the record, it is

clear that no statement or undertaking of any kind was

given to the petitioners by the authority who was duty

bound to take the decision. None of the grievances of the

petitioners was found genuine by the District Magistrate,

rather the dispute was found to result in loss of revenue.

Therefore, considering the loss of revenue, the District

Magistrate was compelled to pass the order dated

27.02.1989. This fact is clearly visible from the said order

dated 27.02.1989 of the District Magistrate.

24. The recommendation made by Tehsildar is found

to be without any basis and arbitrary. No public authority

should be permitted to perfect the title of the land by giving

recommendation to regularize the land in favour of

unauthorized occupants. An unauthorized possession cannot

be regularized by way of recommendation.

25. A public authority possesses powers only to use

them for public interest. In Food Corpn. Of India vs.

Kamdhenu Cattle Feed Industries, JT 1992 (6) SC 259,

the Hon'ble Supreme Court held that there is no unfettered

discretion in public law. A public authority possesses powers

only to use them for public good. This imposes the duty to

act fairly and to adopt a procedure which is "fair play in

action". In State of Jharkhand and Others vs.

Brahmputra Metallics Ltd., Ranchi and Another

(supra), the Hon'ble Supreme Court held that power vested

by the State in a public authority should be viewed as a trust

coupled with duty to be exercised in larger public and social

interest. Public authority cannot play fast and loose with the

powers vested in them. A decision taken in an arbitrary

manner contradicts the principle of legitimate expectation.

26. The factual position of the present matter makes it

clear that the doctrine of legitimate expectation has no

application to the facts of the present case.

27. The Act, 1972 is concerned with the eviction of

those persons who have no authority in law to remain in

possession of the public premises. Clause (g) of Section 2 of

the Act, 1972 defines "Unauthorized occupation". It reads as

under :-

2(g)""unauthorized occupation", in relation to any

public premises, means the occupation by any person

of the public premises without authority for such

occupation, and includes the continuance in occupation

by any person of the public premises after the authority

(whether by way of grant or any other mode of

transfer) under which or the capacity in which he was

allowed to hold or occupy the premises has expired or

has been determined for any reason whatsoever and

also includes continuance in occupation in the

circumstances specified in sub-section(1) of Section 7

and a person shall not, merely by reason of the fact

that he had paid any amount as rent, be deemed to be

in authorized occupation".

28. It was the duty cast upon the State Government

to maintain the rule of law by evicting all those persons who

were found in unauthorized occupation.

29. This fact is not disputed that proceedings were

instituted against the petitioners under the Act, 1972. The

Prescribed Authority passed an order of eviction against the

petitioners. Petitioners' appeals to the appellate authority

under the Act, 1972 were dismissed. The petitioners could

not get any relief even from the High Court. Therefore, after

the said proceedings, petitioners cannot claim vested right

to remain in public premises.

30. The last contention has been placed by Mr.

Pramod Bailwal, Advocate that five leases have been

granted in the land-in-question to those who were never

tenants.

31. It is pertinent to note that the said persons are

not before us. Neither they have been impleaded as

respondents in these writ petitions, nor have the petitioners

disclosed the circumstances under which the lease was

granted to them. It is well settled that orders cannot be

passed in detriment to the interest of third party without

impleading them as respondents and thereafter without

giving them an opportunity of being heard. The impugned

decision of the District Magistrate dated 01.01.2008 clearly

brings out the rationale for eviction of the petitioners. It,

inter alia, states :

"iz"uxr Hkwfe [kljk uEcj&63 xzke tkSad ds ml {ks=+ esa fLFkr gSa tks

LoXkkZJe ds uke ls tkuk tkrk gS rFkk xaxkrV ij fLFkr gksus ds dkj.k

mlesa o'kZ Hkj /kekZoyfEc;ksa] Ik;ZVdksa ,ao rhFkZ;kf++=;ksa dk rkark yxk jgrk

gSA vr% bl rF; dks n`f'Vxr j[krs gq;s tufgr esa lkoZtfud mi;ksx

gsrq mDr Hkwfe dh furkUr vko";drk gSa rkfd esays] mRlo ,ao R;kSgkjksa ds

volj ij c<+rh gq;h i;ZVdksa ,ao leLr vU; J`}kyvksa dh HkhM esa HkxnM

gksus ds dkj.k dksbZ nq?kZVuk u gks ldsA pwafd ;g LFky dqEHk esyk {ks= dk

Hkh vfHkUu vax gS vr% mDr LFkku dk tufgr] iz"kklfud ,ao O;ogkfjd

n`f'V ls Hkh [kqyk ,ao fjDr j[kk tkuk vfr vko";d gS rkfd tu lkekU;

bldk mi;ksx dj ldsA ;g Hkh KkrO; gS fd voS/k dCtsnkjks }kjk

ljdkjh Hkwfe ij voS/kkfud :Ik ls dCtk ,ao vfrdze.k djus dh izo`fr

rsth ls c< jgh gS vkSj os le;≤ ij vuko";d okn nk;j dj vius

dCts dks cuk;s j[kus dk dqiz;kl djrs jgrs gS tks fd fuUnuh; gh ugh

cfYd fdlh Hkh n`f+'V ls U;k;ksfpr ugha gS rFkk ,sls O;fDr;ksa ds fo:}

l[r dk;Zokgh dh tkuh vko";d gSaA"