Rampal vs Estate Officer

Umesh Chandra Dhyani, J.—Present writ petition has been filed by the plaintiff (petitioner herein) being aggrieved by the order dated 17.12.2012, passed by Vth Additional District Judge, Haridwar, in M.C.A. No. 23 of 2006, whereby the said appeal was allowed and the application moved by the plaintiff/petitioner for temporary injunction was rejected. Eight weeks'' time is granted to the respondent to file his counter-affidavit.

In order to establish his prima facie case, in the light of Dalpat Kumar and Another Vs. Prahlad Singh and Others, , the plaintiff/petitioner, primarily, relied upon the vendor''s license issued by the Executive Officer, Nagar Panchayat, Bharat Heavy Electricals Ltd. (for short B.H.E.L.), Ranipur, Haridwar. This fact is under no dispute that the land in question belongs to B.H.E.L. Some of the terms and conditions, which are relevant for the decision, are excerpted herein-below:

"(i) the vendors should run their business only in the permitted area and in the specific trade for which the license is issued.

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(vii) the license may be cancelled at any time by the issuing authority without any prior notice or assigning any reason therefore.

(viii) Issuing a license will not accrue any right or title for the vendor, in case, it is cancelled or withheld later on.

(ix) License for vendors is issued for moving stalls. Construction of any type is not permissible under this licence.

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It is the Executive Officer, Nagar Panchayat, B.H.E.L., who issued vendor''s license to the petitioner. It was not issued by the Estate Officer of B.H.E.L. While instituting the original suit, Nagar Panchayat, B.H.E.L. was not made a party to the suit, although it was said that since Nagar Panchayat was not interfering with the possession of the plaintiff, only B.H.E.L. was threatening to dispossess him and, therefore, Nagar Panchayat was not made a party. Such contention is being accepted for a moment in order to save the matter to become complicated at this stage. But, the fact remains that such license was issued for vending in moving stall, and not an stationary shop, for it was a specific condition that construction of any type was not permissible. No document is offered to show that there was any lease or grant of any authorization, on behalf of B.H.E.L. to run such a shop, which was being run by the petitioner in B.H.E.L. premises. It cannot therefore, be said that the petitioner is in settled possession of the land in question. His possession did not start under a legal origin. Law does not protect such type of possession. First of all, there was no authority in favour of the petitioner to run such a shop, but even if it be assumed for the sake of argument that B.H.E.L. issued the same (although it was not), it was only for the purpose of moving stalls and not for a stationary shop. The vendor was to move and not to remain static as per the condition of the vendor''s license itself. Where, then, was he allowed to settle in possession? Thus, this Court find no valid reason for staying the effect and operation of the impugned order, passed by the Lower Appellate Court on 17.12.2012.

It is true that a mini trial at the stage of grant of temporary injunction cannot be held in view of principle of law laid down by Hon''ble Apex Court in Anand Prasad Agarwalla Vs. Tarkeshwar Prasad and Others, : Anand Prasad Agarwalla Vs. Tarkeshwar Prasad and Others, but that itself does not help the petitioner at this stage, in as much as he has not been able to show his prima facie case on the basis of his own document. It is on account of such fact that the elements of section 5A of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, are not being discussed as of now. Stay Application No. 3369 of 2014 is, accordingly, disposed of.