KAMAL KISHORE Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner through instant petition under Articles 226/227 of the Constitution of India seeks issuance of a writ in the nature of certiorari for setting aside the order dated May 12, 2011 passed by Deputy Commissioner -cum-Commissioner, Amritsar, annexure P-12 by which the appeal filed by the petitioner against the order dated July 9, 2010 passed by the Collector-cum-Deputy Director, Urban Local Bodies, Amritsar Region annexure P-11 has been dismissed holding that the petitioner was in unauthorized occupation of the property and was ordered to demolish construction of area measuring 19'-5" x 3'-4" behind his shop.

(2.) Brief facts relevant for the adjudication of the present writ petition are that the Municipal Council, Jandiala Guru, Amritsar executed a rent agreement in favour of the petitioner by which a shop owned by the said Municipal Council, bearing No.2 of the Town Hall, Jandiala Guru, Amritsar was rented out to the petitioner in 1984 without specifying any termination of tenancy. It was mentioned that the tenancy of the shop would be determined according to the instructions issued by the Government from time to time and the monthly rent shall be taken in advance. Copy of the rent agreement has been appended as annexure P-1. On July 23, 1997, a notice dated July 8, 1997 issued by Executive Officer, Municipal Council, Jandiala Guru was received by the petitioner mentioning therein that on the rear side of the shop bearing No.2 opposite Town Hall, the petitioner had set up a door way opening into the new market, illegally for which he had not taken any approval from the Municipal Council. It was intimated that Sh.Hari Dev, MC, had formally written to Deputy Director, Local Bodies, Amritsar that the petitioner had made an illegal encroachment. It was thereafter told to the petitioner that the said encroachment should be removed within 7 days of the receipt of the said notice and the doorway opened at the rear of the shop should be closed immediately failing which an administrative action would be taken against him. Copy of the above said notice has been appended with the petition as annexure P- In response to the above said notice, the petitioner wrote a letter to the President, Municipal Council, Jandiala Guru, expressing his wish to enter into a compromise with the Municipal Council and requested respondent No.2 to charge from him a reasonable compounding fee. The said request of the petitioner was reported upon firstly by an official (Tax Clerk) of the Municipal Council stating therein that he had inspected the spot and found the door which had been opened for ingress and egress from the shop does not cause any obstruction to the neighbouring shopkeepers and therefore, Nagar Council had no objection to the entering into a compromise with the petitioner on the issue of door opening at the backside of the shop. The said report dated May 4, 1998 was endorsed by the Executive Officer wherein it was stated that as per the report, the petitioner had indeed opened a door on the rear of the shop with respect to which no person has any objection. He further recommended that after taking Rs. 400.00 as compounding fee, compromise should be entered into. Copy of the said letter of the petitioner to respondent No.2 and notice thereon dated May 4, 1998 have been appended with the petition as annexure P-3. It has further been pleaded by the petitioner that pursuant to the recommendations of Executive Officer dated May 4, 1998, the petitioner deposited Rs. 400.00 as compounding fee with respondent No. Copy of the receipt dated May 4, 1998 has been appended with the petition as annexure P-4.

(3.) Petitioner claims that despite compounding fee having been deposited and the matter regarding opening of the rear door at the back of his shop having come to an end, respondent No.2 filed an application under Sec. 5-A and B of the Public Premises (Eviction of Unauthorized Occupants) Act 1971, for short 'the Act, seeking to remove the alleged unauthorized encroachment on the pubic premises of Municipal Council, Jandiala Guru. The Court of SDM-cum-Collector, Amritsar, after hearing the parties decided to carry on the hearing of the case at the site of the dispute. The SDM-cum-Collector held that the petitioner/tenant had unauthorizedly made encroachment on area measuring 19'-5" x 3'-4" which was a public premises of Municipal Council, Jandiala Guru as such he ordered that the encroachment be removed within a period of one month failing which the same would be removed by the Executive Officer. A copy of the order dated March 26, 2001 has been appended as annexure P-5.