Guru Singh Sabha (Regd.) vs State of Haryana

J.L. Gupta, J.

The Government of Haryana decided that the adjacent land/correctional area may be transferred to the occupants......" The petitionersociety which owns shops on a part of the land claims that it is the ''occupant'' and is as such entitled to the allotment. Respondents No. 4 to 7 who are the tenants in the shops owned by the petitioner claim that they are in actual physical possession of the shops and are thus the ''occupants''. The controversy in the present case hinges around the exact import of the expression ''occupant''.

A few facts relevant for the decision of the controversy may be noticed. The petitioner is a society registered under the Societies Registration Act, 1860. It claims that plot No. 1D/14 B.P. situate in New Industrial Township of Faridabad was gifted to it by Smt. Sheila Devi by a registered gift deed. It is claimed that the petitioner raised five shops on the said plot. It is claimed that a strip of land measuring 60'' X 15'' belonging to the Rehabilitation Department which is adjacent to the plot No. 1D/15 B.P., is also under the occupation of the petitioner. In fact the shops are said to have been constructed on the plot belonging to the petitioner and partly on the adjacent area under its occupation but belonging to the Rehabilitation Department. In addition to the area covered under the shops, an area of 13'' X 6'' is said to have been retained by the petitioner as a passage. These shops are said to have been let out to respondents Nos. 4 to 7.

In the year 1984, the Government of Haryana in the Rehabilitation Department took a decision with regard to the disposal of adjacent land/correctional area. This policy decision is embodied in the order dated February 28, 1984, a copy of which has been appended as Annexure P1. The petitioner claims that being the occupant of the area, it was entitled to the allotment by transfer of the said area. It claims to have made a number of representations for the allotment of the area, copies of two such representations have been appended as Annexures P2 and P3. In the meantime, respondents No. 4 to 7 claiming to be the occupants of the land in question represented to the State of Haryana that the land should be allotted to them. Vide orders dated June 24, 1987 (Annexure P5), respondent No. 1 directed respondent No. 3 that Tahsildar (Sales) should allot area measuring 40'' X 15'' "by transfer to the actual occupants in accordance with the policy of Government." The Gurdwara Management is not entitled to get this land transferred. The land measuring 13.6x15 which is being used by Gurdwara as approach may be transferred to the Gurdwara Management at the rates to be fixed by Government. Similarly, the land measuring 40''x15'' which is also a Government property and which is under occupation of certain persons may also be disposed of in accordance with the policy of the Government. This order has been challenged by the petitioner through the present petition.

Two separate written statements have been filed. In the written statement filed on behalf of respondents 1 to 3, it has been, interalia, averred that the petitioner has no vested right, title or interest in the land belonging to the Rehabilitation Department. "If the petitioner has given the land of the Rehabilitation Department on rent to respondents No. 4 to 7 of the writ petition as alleged, then the same is illegal and unauthorised and the alleged illegal and void tenancy is not binding on the answering respondents." It has also been averred that according to the policy decision of the Government in the Rehabilitation Department and Instructions dated July 11, 1988, a copy of which has been appended as Annexure R1, the land under the shops could be transferred to the actual occupants of the same whereas the land in dispute is not physically in occupation of the petitioner as alleged. Accordingly, the claim of the petitioner for the allotment of the land has been controverted. The respondents have further pointed out that the conveyance deeds were issued in favour of respondents No. 4 to 7 without getting the provisional offer approved from the competent authority. As a result, the order at Annexure P5 had been set aside by the Chief Settlement Commissioner, Haryana vide orders dated October 20, 1989 and Tahsildar (Sales)/Managing Officer, Faridabad had been directed to pass a speaking order regarding the transfer of the land in question and to issue fresh conveyance deed subject to the decision of the High Court in the instant petition. A copy of this order has been appended as Annexure R2. Orders passed in case of respondents No. 5 and 6 passed on the same day have been produced as Annexures R3 and R4 respectively. All the same, the petitioner''s challenge to the order at Annexure P5 has been controverted on various grounds raised in the written statement.

A separate written statement had been filed on behalf of respondents No. 4 to 7 on November 4,1988. However, later on Civil Misc. No. 20308 of 1989 was moved for permission to amend the written statement. Along with it, an amended written statement was filed. In this written statement, it has been, interalia, averred that one Mohan Lal was the owner of the plot No. 1D/14 N.I.T. Faridabad. He built the five shops in dispute on the land of the Rehabilitation Department and on his land comprised in plot No. ID/14 B.P. It is alleged that only 4'' ft. wide strip of his land comprised in plot No. 1.D/14 B.P. had been utilized for the construction of shops. It is further alleged that the shops were let out to the respondents by the said Shri Mohan Lal before his death. It is claimed that the subsequent gift by the widow of Shri Mohan Lal in favour of the petitioner did not make them the occupants of the land in dispute. Reference has also been made to the petition for eviction filed by the petitioner against the respondents to show that the respondents were in of the shops even prior to the execution of the gift deed in favour of the petitioner.

Mr. J.N. Kaushal, learned counsel for the petitioner has contended that the tenants hold the property for and on behalf of the landlord only. In fact, the petitioner is the occupant and was, therefore, entitled to the allotment of the land in question. According to the teamed counsel, the claim made on behalf of the respondents in the written statements was not legally tenable. On the other hand, Mr. Deepak Thapar, who addressed arguments on behalf of the respondents, has contended that the person in physical possession alone is the "occupant". Since respondents Nos. 4 to 7 were in actual physical possession, they alone were the occupants and were as such entitled to the allotment of the land. He has placed reliance on the decision in Murti Shri Hanumanji Mandir Bawa Surajgir village Dera v. The Deputy Secretary RehabilitationcumSettlement Commissioner, 1986 RRR 214 (P&H) : 1986 PLR 529.

According to the decision of the Government communicated vide letter dated February 28, 1984, the land had to be transferred "to the occupants". Who is an occupant ? According to Corpus Juries Secundum Volume 67, page 73, it is a term "not always susceptible of precise definition, its meaning varying according to the context, the idea intended to be conveyed being gathered from a consideration of the purpose of the constitutional or statutory provisions in which the term is used, as well as from the ordinary definitions given by lexicographers". In a given context, it has been defined to mean one who occupies or takes possession". The precise meaning has to be given on a consideration of the purpose of the provision. What is the purpose behind the decision of the Government ? It appears that small pieces of land were available in different localities. Part of that land had been occupied by persons owning adjacent properties. Such persons were in unauthorised occupation of the land. Such occupants were to be allotted the adjacent land. The purpose appears to be that the land be transferred to the unauthorised occupants at the rate fixed by the Government.

In the present case, the land had been occupied by construction of shops. The shops in question had been transferred to the petitioner by a gift deed executed by the owner/unauthorised occupant. As a result, the petitioner stepped into the shoes of the donor. It became the owner/occupant. It is the owner of the shops who is the occupant of the correctional area/adjacent land. The person who is a tenant in the shop is not the occupant of the land. The tenant has been permitted the use of the shop for which rent is being paid to the petitioner. The land under the ''shop'' is for all intents and purposes in the occupation of ''its'' owner. Such appears to be the intention behind the order of the Government.

Mr. Thapar contends that the occupant is the person who is in possession of the shop. I do not think so. The shops belong to the petitioner. If the contention of Mr. Thapar is accepted, then the petitioner will have to demolish the shops. The respondents who are tenants would cease to be in occupation of the shops. They would never be entitled to continue in possession of shops. The result would be that the land would be restored to its original position. Such could not be the intention behind the decision of the Government. The obvious intention behind the order appears to be that it should be allotted to the person who owns the adjacent property or who has unauthorisedly occupied the land. If so construed, it is clear that the petitioner was in unauthorised occupation and is the de jure occupant of the land. The land has to be allotted to the petitioner.

Mr. Thapar relied upon the decision in Murti Shri Hanumanji Mandir''s case (supra). I do not think the decision supports him. The learned Judge in the context of the facts in that case, inter alia held that a person in possession of a property may not be in its occupation. In the context, in which the word ''occupant'' has been used in the present case, the respondents even if assumed to be in possession were not in occupation of the property

As a consequence, the order at annexure P5 and the subsequent orders at Annexures R2, R3 and R4 passed during the pendency of the petition were passed in violation of the stipulation contained in the order at Annexure P1. These have to be quashed.

The writ petition is accordingly allowed. The orders transferring the land in favour of respondents No. 4 to 7 are hereby set aside. It is held that the petitioner is entitled to the transfer of the land. In the circumstances of the case, the parties are left to bear their own costs.