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Judgment
Mahavir S. Chauhan, J.—By way of this writ petition, under Articles 226 and 227 of the Constitution of India, the petitioner No. 1, i.e., the New Shuttering Market Association (Regd.), Sector 24, Panchkula (for short, ''the petitioner association'') and its twenty eight members (here-in-after referred to as ''the petitioners''), who are operating their respective shuttering business from government/public land, seek issuance of a writ of Mandamus to direct the respondents to allot plots to the petitioners in Sector 26, Panchkula as approved by Chief Town Planner, Haryana. It is the case of the petitioners that they have been carrying on the shuttering business in Panchkula for the last three decades and as no permanent place has been allotted to them, they have been shifting from place to place for operation of their business to different places as per directions issued by the respondents from time to time. Recurrent shifting of business from one place to another visits them with lots of hardships and financial losses. The petitioners, therefore, made a representation dated 27.04.1988 to Chief Minister, Haryana for allotment of permanent sites for running their business, which, as conveyed vide letter dated 28.04.1988 (Annexure P2) was forwarded to the Haryana Urban Development Authority (for short, ''the HUDA'') for favourable consideration.
The petitioners, who were operating their business from Maheshpur, Sector 21, Panchkula, were expecting a favourable response to their representation but, instead, received notices dated 18.07.1997 (copy Annexure P5), u/s 12 of the Punjab New Capital (Periphery) Control Act, 1952 (for short, the 1952 Act) requiring them to restore the land at Maheshpur to its original state or to bring it in conformity with the provisions of the 1952 Act or the rules, and on 18.07.1997, enforcement staff demolished the temporary structures raised by them.
Petitioners again approached the Chief Minister during the "Sarkar Apke Dwar" programme and reiterated their demand. Respondent No. 11 then sent a communique� (Annexure P8) to respondent No. 3 asking him to ensure implementation of the announcements made by the Chief Minister during the "Sarkar Apke Dwar" programme, i.e., allotment of alternative sites to shuttering suppliers. Respondent No. 6 even forwarded a proposal dated 28.08.2003 (Annexure P9) to respondent No. 4 for according approval to seven plots, of one Kanal each, for rehabilitation of shuttering suppliers.
The petitioner Association also wrote letter dated 17.02.2004 (Annexure P10) to respondent No. 3 requesting him to allot 28 plots measuring 1.5 Kanals each, to the petitioners in Sectors 21, 25 and 26, Panchkula.
According to the petitioners, after some inter-departmental communication amongst the respondents, respondent No. 5, in reference to memorandum No. 2044 dated 09.07.2004, wrote an undated letter (Annexure P14) to respondent No. 3 stating that District Town Planner, Panchkula, had carved out 28 shuttering plots and if the proposal was considered the HUDA had to frame a policy in the matter.
It is further the case of the petitioners that the respondents, on one hand, took care of other business concerns by allotting them plots as evidenced by letter dated 21.07.2004 (Annexure P15) of the Estate Officer, HUDA, Gurgaon but, on the other, respondent No. 3, vide letter dated 08.09.2004 (Annexure P16) requested respondent No. 7 to take immediate necessary action for removal of unauthorized shuttering shops set up on the land reclaimed along the Ghaggar river saying that these shops had spoiled the prime land/frontage of the Sector.
The respondents, however, conducted, a survey and identified 28 shuttering shops operating in Panchkula and vide letter dated 16.12.2004 (Annexure P22) sought approval of 28 sites for the purpose of rehabilitation of the petitioners but a little later the petitioners were served notices dated 13.10.2005 to vacate the land encroached upon by them along the Ghaggar river.
Ultimately, after a long drawn inter/intra departmental correspondence, respondent No. 5, vide letter dated 24.01.2007 (Annexure P26), wrote to respondent No. 3 that site of Sector 28 may be considered for providing sites to shuttering suppliers but there was no justification for providing a site of size more than 5.5M x 22M for shuttering sites and the sites be allotted on temporary basis for a period of time to be decided by the HUDA with the condition that no permanent construction would be allowed on the sites.
Citing a few policies formulated by the respondents for habilitation of various sections of the society, including business operators, the petitioners have approached this Court by way of the instant civil writ petition alleging violation of Articles 14 and 19(1)(g) of the Constitution of India.
In the counter filed by the respondent Nos. 2 to 4 and 7 to 10 it has been stated that these respondents have earmarked land measuring 140x25 sq. mtrs. in Sector 28, Panchkula for shuttering shops and it has been decided that these sites be disposed of through open auction as per policy for disposal of commercial sites in which the petitioners and other interested parties may participate.
We have heard learned counsel for the parties and have also perused the record carefully.
It has been argued on behalf of the petitioners that they have been carrying on shuttering business for the last three decades, as allowed by the respondents, and even in the survey conducted by the respondents they have been identified for allotment of shuttering sites to them but the respondents, who have been framing policies for rehabilitation of various business operators, viz. marble dealers and commission agents etc., have adopted a totally discriminatory attitude towards the petitioners in so far as no policy for their rehabilitation has been framed even though the petitioners have been running from pillar to post since the year 1998 to get such a policy framed. When confronted with the stand taken by the respondents in the counter that they have already carved out a site in Sector 28, Panchkula, for allotment to shuttering business operators and have decided to dispose of the sites by way of open auction, the learned senior counsel appearing for the petitioners has drawn our attention to Labha Ram and Sons and Others Vs. State of Punjab and Others, , and has contended that such a procedure was adversely commented upon by the Hon''ble Supreme Court in this judgment and the respondents therein were directed "to provide preference to the appellants in the matter of allotment of building or plot". The learned senior counsel has also contended that the petitioners, who have been serving the people of the area for the last three decades and have contributed to the development of the cities of Chandigarh and Panchkula, cannot be made to compete with those who have no such contribution to their credit and, instead, deserve preferential treatment as regards allotment of sites for the shuttering business, more so when they are ready to pay the market price for the sites.
Per Contra, learned counsel appearing for the respondents have argued that the petitioners have been running the shuttering business from the Government/public land by encroaching upon it, without permission of the authorities and without payment of user charges for use of such land. The learned counsel have asserted that the respondents never permitted use of the Government/public land by the petitioners and are under no obligation to provide sites to them. According to the learned counsel decision of the respondents to auction the shuttering sites cannot be termed as discriminatory as the petitioners are free to participate in the auction and compete with other interested persons or say intending purchasers. Reliance on behalf of the respondents is placed upon Milk Producers Association, Orissa and Others Vs. State of Orissa and Others,
Indisputably, petitioners have been operating the shuttering business by encroaching upon government/public land. Though it is argued on behalf of the petitioners that the respondents have allowed the petitioners to operate their business on the government/public land but inspite of our repeated asking the learned senior counsel representing the petitioners has not been able to show any document to substantiate this plea. Respondents have minced no words to say that the petitioners are encroachers on government/public land and have spoiled the prime land/frontal ambience of the Sector in which these encroachments are in existence. It has also come on record that these encroachments made by the petitioners impeded the work of four-laning of external road along the Ghaggar river in the City of Panchkula and the work of widening of the road could proceed only when interim order passed by this Court on December 13, 2010 staying dispossession of the petitioners, was modified vide order dated May 05, 2012 to the extent that "the protection shall not be available to the petitioners in respect of the land required for the above-said four-laning". Even as per the case of the petitioners themselves, notices have been served upon them for vacation of the land encroached upon by them and to restore it to its original state by removing the illegal constructions raised by them thereon.
To invoke the equality clauses enshrined in Article 14 of the Constitution of India the petitioners have cited the instance of policy of the Government of Haryana to allot plots to the landowners whose land is acquired by the Government and in paragraph (7) of the writ petition they have also referred to order dated 04.08.1989 of this Court in CWP No. 9722 of 1988, and have alleged that vide this order the HUDA has been directed to carve out a Crusher Zone to enable those involved in the Stone Crushing business to set up their units. We are constrained to say that the petitioners, who have been making money by unauthorizedly encroaching upon the Government/public land, cannot claim parity with the farmers whose land is forcibly acquired by the Government and the allegation that vide order dated 04.08.1989 passed in CWP No. 9722 of 1988, this Court directed the HUDA to carve out a Crusher Zone to enable those involved in the Stone Crushing business to set up their units is factually wrong and misleading. A copy of the order is available on record as Annexure P3 and a perusal thereof shows that only it was ordered that "status quo with respect to the possession" be maintained during the pendency of the aforesaid writ petition. An assertion in the written statement that the above-stated CWP No. 9722 of 1988 has been dismissed vide judgment dated 28.07.2011 and the encroachments, which were subject matter of that writ petition, have been removed on August 17 & 18, 2011, has, however, remained uncontroverted.
Reference has also been made in the writ petition to policy guidelines dated 24.03.2009 (Annexure P-27) framed by the respondents for allotment of plots in Transport Nagars and Auto Markets developed by the HUDA, to stress that the respondents are taking care of all other trades but are treating the petitioners discriminately. Even this effort of the petitioners is futile in so far as even under this policy the sites were to be disposed of through open auction.
Even reliance upon M/s. Labha Ram and Sons and others versus State of Punjab and others (supra) is also misconceived. In this case the Hon''ble Supreme Court was dealing with rehabilitation of licenced dealers dealing in food-grains, who were carrying on business for over fifty years in the areas declared by the Government as "Market Area" as per provisions of the Punjab Agricultural Marketing Produce Act, 1961 and the Government had de-notified those markets. On the contrary, the petitioners, admittedly, have not been issued any such licences and have been thriving by encroaching upon Government/public land.
Rather, the case of the petitioners falls within the fours of judgment of the Hon''ble Supreme Court of India rendered in the case of Milk Producers Association, Orissa and Ors. Versus State of Orissa and Ors. (supra). In this case, the appellants before the Hon''ble Supreme Court were running milk business by encroaching upon Government lands within the town of Bhubaneswar and the State of Orissa intended to evict them while the Chief Minister had allegedly evolved a scheme for their rehabilitation. As they were sought to be evicted without offering them alternative plots, the appellants therein approached the Orissa High Court by way of a writ petition which was disposed of by observing as under:
Let the State Government take appropriate steps for rehabilitation of the gowallas of Bhubaneshwar City. It is open for the Government to take up rehabilitation but that cannot be a condition precedent for the eviction of the petitioners. It is also open for the Government to proceed with eviction of the gowallas in accordance with law.
This portion of the judgment was challenged by the gowallas before the Hon''ble Supreme Court and the matter came to be disposed of by the Hon''ble Apex Court in the following manner:-
Mr. Mohanti may be right in his contention that by reason of such note-sheet dated 18-10-2005 alone no policy decision was laid down but evidently thereby earlier policy decision was resiled from. Mr. Das has placed before us the entire records. As indicated hereinbefore, the said records were made available to the appellants for inspection. It is neither in doubt nor in dispute that it was the Chief Minister himself who thought of rehabilitating the members of Appellant 1 Association in the year 1994-95.
Rightly or wrongly, the same has not been given effect to. The State, furthermore, proceeded on a mistaken notion that the villages named therein are outside the master plan and that the rehabilitation programme could be carried out in the said villages. The said villages, apart from being subjected to encroachments and litigations being within the master plan of Bhubaneswar, no rehabilitation programme could be carried out. No policy decision has been brought to our notice as such which could give rise to a legal right in the appellants. No notification in terms of Article 162 of the Constitution had been issued. The assurance on behalf of the Government came from the note-sheet approved by the Chief Minister and on the basis whereof the State took a stand in its affidavit before the High Court. Evidently, the matter has been considered afresh and the same had been brought to the notice of the Chief Minister. He having agreed thereto, must be held to have expressly resiled from the earlier promise, if any. Furthermore, even an executive action on the part of the State must give way to the statutory scheme. As by reason of the Orissa Municipal Corporation Act, within the periphery of the town, dairies or cowsheds cannot be maintained, the State would not be entitled to adhere to its earlier plan of rehabilitating them in the villages mentioned therein.
It may be true that the members of Appellant 1 Association were to pay for the plot. But, only because they are agreeable to pay for the plot which may be allotted to them, that by itself in our considered view would not clothe them with the legal right to be rehabilitated. There does not exist any legal concept which confers a legal right upon an encroacher to be rehabilitated. The matter may be different where the State comes out with a policy decision which meets the constitutional scheme as envisaged under Article 162 of the Constitution. In the instant case, we have noticed that the appellants have failed to show the existence of any such scheme, which can be said to be irretrievable in nature. In view of the 2003 Act, even the doctrine of promissory estoppel will have no application.
For the reasons aforementioned, we are of the opinion that the High Court has not committed any illegality in passing the impugned judgment warranting interference by us with the directions of the High Court that the State would be entitled to proceed to evict the appellants in accordance with law. The appeals, for the forgoing reasons, are dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.
Nothing to the contrary has been shown on behalf of the petitioners.
Similar contentions as in the instant case were also raised before the Hon''ble Supreme Court in Milk Producers Association, Orissa and Ors. Versus State of Orissa and Ors. (supra), but the Hon''ble Supreme Court returned a very terse observation saying, "But, only because they are agreeable to pay for the plot which may be allotted to them, that by itself in our considered view would not clothe them with the legal right to be rehabilitated. There does not exist any legal concept which confers a legal right upon an encroacher to be rehabilitated". Case of the petitioners in the instant petition is no better. Admittedly, they are not poor persons and are merely encroachers on Government/public land. There is no policy of the Government to rehabilitate them. Their offer to pay market price of the sites cannot be taken to vest them with a legal right to be rehabilitated or to be treated preferentially in the matter of allotment of the shuttering sites carved out by the HUDA and proposed to be sold through open auction. Rather, in our considered view, allowing preferential treatment to the petitioners in the matter of allotment of the shuttering sites would tantamount to allowing them a premium for encroaching upon Government/public land and continuing thereon for decades to run profit-making business without contributing anything to the public exchequer.
The petitioners, who are encroachers on Government/public, land cannot claim parity with land-owners whose lands have been forcibly acquired by the Government and the licenced dealers in food grains who are forced to leave the place of their business in the area declared as grain market on that area being de-notified by the Government. It may be added that equality clauses enshrined in Article 14 of the Constitution of India are breached not only by treating the equals unequally but also by treating unequals as equals. In the consequence, the writ petition fails and is dismissed, however, leaving the parties to bear their own costs.