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Judgment
Sudershan Kumar Misra, J.
CM No. 6608/2012 in WP (C) No. 3068/2012
Exemption, as prayed for, is allowed, subject to all just exceptions. This application stands disposed of.
WP (C) No. 3068/2012
This petition praying for orders to restrain the MCD from recovering possession of certain premises allotted to its erstwhile employees during the course of their employment, has been filed by an organization styled as "Samasya Samadhan Manch", stated to be a non-government organization. While a copy of the certificate of registration of this organization is annexed, its aims and objects have not been annexed nor have the aims and objects of this organization been mentioned in the petition. Furthermore, the petition has not been signed by anyone on behalf of the petitioner. There is, however an affidavit of one Mr. Kamal Kaushik, son of Late Sh. C. V. Kaushik, who claimes to be the General Secretary of the organization, annexed to the petition. I notice that in paragraph 2 of the affidavit, it is stated that, ".....the contents of the accompanying writ petition are read over to me in my vernacular...."; this obviously means that the General Secretary of the organization, who has filed this supporting affidavit, does not understand the English language. However, no affidavit in the language known to the person has been filed in support of the petition. There is also no certificate by the Oath Commissioner that either the contents of the affidavit, or the petition, have been explained to Mr. Kaushik in his presence. Furthermore, although counsel for the petitioner claims that the petition concerns five persons, whose names are mentioned in paragraph 5 of the petition, the main thrust of the petitioner''s case appears to be to secure some sort of blanket orders restraining the MCD from recovering possession of its own premises in general. This is also reflected from the prayer clauses which are all structured in a general manner without any reference of the five individuals or their premises which have been mentioned in paragraph 5 of the petition. I further notice that as regards the five persons mentioned in paragraph 5, no particulars about their date of retirement have been mentioned. Counsel for the petitioner submits at the Bar that all of them have retired after February, 2012. Counsel for the petitioner further admits that, under the terms of their employment, all the five persons are obliged to surrender the premises on their retirement from service with the MCD. It is nowhere pleaded that any further right has enured to any of these five persons to hold on to these premises beyond their retirement. No rules governing these premises, and their return to the employer after retirement, have been annexed. The only plea is limited to a right claimed by the petitioner organization on behalf of the five persons mentioned in paragraph 5 not to be evicted from the premises, on which they admittedly have no claim, without what is termed as, "due process of law". It is also admitted at the bar that under the terms and conditions of their employment with the MCD, the five persons in question were obliged to vacate the premises forthwith, and that their continuance in the premises is without any legal right; and that they are trespassers in the premises. It is also not the case of the petitioner that they are in any sort of settled possession of these premises after their possession became illegal; nor has it been alleged anywhere that the respondent/MCD countenanced their continued possession beyond the term of allotment, even for a day.
Counsel for the petitioner also states that he is not in a position to state whether there exist any provisions under the rules and regulations governing the employment of the aforesaid five persons which would enable them to seek further extension of time for vacating the premises under the terms. According to him, the said individuals have in any case not even made any such request.
Mr. Vinod Mantoo, Assistant Law Officer, MCD, who is present on advance notice, states that after retirement an employee is allowed four months extension at one go, subject to payment of double the license fee for the first two months, and for the next two months, four times the license fee is chargeable. In addition, four months further extension can also be granted on specified medical grounds, subject to payment of six times the license fee. These employees are stated to have retired from February, 2012 onwards. They have not sought any extension of time to vacate the premises from the MCD under the rules. Obviously, they want to use this method to hang on, at least under cover of interim orders, as long as possible, knowing, as we all do, the delays inherent in the legal system. I am also conscious any such order, interim or final, will open the flood gates. Additionally, to my mind, even these proceedings constitute part of "due process" where the petitioner has undoubtedly been afforded an opportunity of showing any right to the premises. He has been heard at length. No cause is shown why possession should not be returned to the owner. On the contrary, he admits that he has no right in fact, or in law to retain possession. This approach and the admitted facts also distinguish this case from the line of decisions where some protection is afforded to those who are admittedly in a settled possession for long after, either having entered unlawfully or, after their possession had turned unlawful for any reason.
In effect, the petitioner is saying that though he has no enforceable right in the premises and that the respondent is undeniably entitled to its return, but he is determined to usurp and deny the respondent''s right to the property and will only countenance being moved under a coercive process either through courts, or otherwise, as recognized in law, for such persons; and that this Court in its writ jurisdiction must assist him in carrying out this object.
To protect the petitioner under such circumstances would, to my mind, amount to enabling a self confessed transgressor, without even a modicum of vested interest in the property, to perfect a device to retain the State''s property by taking an unfair advantage of the lapse of time that is normal and inevitable in the legal process, even before a Writ Court.
In effect, what he is saying is even a rank trespasser cannot be removed by reasonable force from any property by the owner once he has entered it, without having recourse to legal proceedings. I do not agree. To countenance such a proposition can lead to disastrous consequences. For instance, a guest, or employee or customer, or anyone else similarly situated, could immediately demand similar protection the moment his presence in any premises has become unauthorized. It bares repetition that some protection can only be afforded in those limited cases where, unlike this case, the unauthorized possession in question has taken on the colour of, "settled possession", over the passage of time. In any case, as in suits, the writ court is not powerless to give directions even to a petitioner and, in a case such as this, a direction to the petitioner to vacate the premises would also be warranted.
In the peculiar facts and circumstances of this case, I do not consider it a fit case for the exercise of extra ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is dismissed in limine.
CM No. 6607/2012 in WP (C) No. 3068/2012
In view of the orders passed in the main writ petition, this application has become infructuous and the same is disposed of as such.