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SCA/7157/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7157 of 2010
======================================
CHEMICAL
MAZDOOR PANCHAYAT & 1 - Petitioner(s)
Versus
KRISHAK
BHARTI COOPERATIVE LTD & 2 - Respondent(s)
======================================
Appearance
:
MRS SANGEETA N PAHWA for
Petitioner(s) : 1 - 2.
MRS MAUNA M BHATT for Respondent(s) :
1,
None for Respondent(s) : 2,
GOVERNMENT PLEADER for
Respondent(s) : 3,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 28/06/2010
ORAL
ORDER
1.0 Draft
amendment granted.
2.0 By
way of this petition, the petitioners have prayed to direct
respondents no. 2 and 3 not to evict the workers of the petitioner
no.1 Union from Jetty Colony, i.e. the residential colony provided by
respondent no. 1.
3.0 According
to the petitioners, 289 workers of the petitioner no.1-Union were
working with the respondent no. 1 and they were staying in the Jetty
Colony, which is a residential colony provided by respondent no .1
since 1980. As some of the workers were illegally locked out and were
not provided with work, the said workers through petitioner-Union
raised a dispute before the Industrial Tribunal which was numbered
as Reference [I.T.] No. 8 of 1995. The Industrial Tribunal vide
award dated 10.04.2007 directed the respondent to allow the workers
to work and to pay them salary and other consequential benefits.
Being aggrieved by the said order, respondent no. 1 preferred Special
Civil Application No. 13590 of 2007 before this Court. This Court
vide order dated 31.05.2007 stayed the impugned award dated
10.04.2007 passed by the Industrial Tribunal.
3.1. It
is the case of the petitioner that pending reference and the petition
before this Court, the workers continued to stay in Jetty Colony and
somewhere in April, 2010, as the workers of the petitioner-Union had
an apprehension that the workers would be evicted forcefully from the
residential premises, they preferred Civil Application No. 3672 of
2010 praying to direct respondent no. 1 not to evict the workers from
the residential premises. The said Civil Application was withdrawn
by the petitioner-Union on 17.06.2010 with a liberty to approach
appropriate forum. It is the case of the petitioner-Union that
several requests were made to respondent no. 1 not to evict the
workers from the residential premises, but there was no response and
therefore the present petition has been filed.
4.0 Mrs.
Sangeeta Pahwa, learned Advocate for the petitioners submitted that
the workers of the petitioner-Union are working with respondent no.
1 since last many years and therefore, respondent no. 1 should not
evict the workers of the petitioner-Union without any notice
especially when they are staying at the premises for quite long time.
It is further submitted that security threats have been given by
respondent no. 1 in order to harass the workers staying in Jetty
Colony. She has further submitted that the proposed action of the
respondent no.1 of dispossessing the workers without due process of
law is illegal and arbitrary.
4.1 At
this stage, Mrs Mauna Bhatt, learned Advocate for respondent no.1 has
raised a preliminary contention that a writ petition is not
maintainable before this Court against KRIBHCO. She submitted that
respondent no. 1- “KRIBHCO” is neither a “State”
under Article 12 of the Constitution of India nor is “an
instrumentality of State” or “other authorities”
and as such a writ petition under Article 226 of the Constitution of
India cannot be preferred against KRIBHCO.
4.2 In
support of her submission, she has placed reliance upon order of this
Court dated 29th December 2008 passed by this Court in
Special Civil Application No.12229 of 2008 wherein the following
decisions were considered in favour of his contention:
1)
R.K. Mishra & Others vs. Krishak Bharati Cooperative Limited &
Others reported in 2002(3) AD (Delhi) 663.
2)
M/s. L.K.L Construction Company vs. The General Manager (Prodn.) &
Others delivered by this Court in SCA 259 of 1994.
3)
S. Vijayan vs. Krishak Bharati Co-operative Ltd. delivered by this
Court in SCA 1830 of 1986.
3)
Ashok kumar and Others vs. Union of India and Others with Sunil
Shastry and Others vs. Union of India and Others delivered by
Allahabad High Court in CMWP No. 21772 of 2006.
4)
Bihar State Co-operative Marketing Union Ltd and Another vs. Indian
Farmers Fertilizer Co-operative Ltd. And others delivered by Patna
High Court in Civil Writ Jurisdiction Case No. 7303 of 1993.
5)
Chhitar Singh vs. The Indian Farmers Fertilizer Co-operative Ltd.
And others delivered by the Jaipur Bench of Rajasthan High Court in
Civil Writ Petition No. 139 of 1986.
6)
Shyam Lal vs. IFFCO and others delivered by the Allahabad High Court
in Civil Misc. Writ Petition No. 6143 of 1984.
h)
Laxman Singh vs. Indian Farmers Fertilizer Co-operative Ltd. and
others delivered by Delhi High Court in Civil Writ Petition No. 2024
of 1990.
4.3
As against the above contention, learned Advocate for the petitioner
has submitted that respondent no. 1 is a ‘State’ within the meaning
of Article 12 of the Constitution of India. In support of her
submission, she has placed reliance on the decision of the Delhi High
Court in the case of N.K. Aggarwal v. Union of India & Ors.
rendered in Letters Patent Appeal No. 219/2002 dated 03.12.2006,
wherein the Court has held that KRIBHCO is amenable to the writ
jurisdiction of this Court under Article 226 of the Constitution.
4.4 According
to the learned Advocate for the respondent no.1, apart from the
maintainability of the petition, the Industrial Tribunal, Surat has
held that there is no employer-employee relationship between KRIBHCO
and the contract workers and therefore also no relief can be granted
by this Court to the petitioners. She submitted that under the guise
of being the erstwhile contractor’s workers, not only the members of
the petitioner Union were squatting on KRIBHCO land but there was
movement of other unauthorized persons in the vicinity of Heavy Water
Plant and the subject area is a center of various illegal activities,
which is required to be viewed as a serious threat not only for the
Heavy Water Plant but also the installation of KRIBHCO. She therefore
submitted that the petition deserves to be dismissed.
5.0 Having
heard the learned Advocates for the respective parties and perused
the relevant materials on record, I am of the view that the
petitioners are unable to produce on record of this petition any
document showing that the members of the union were granted
possession of the premises in question. For the very same relief the
petitioners had approached this Court by way of Civil Application
which came to be withdrawn with a view to challenging the action
before appropriate forum, but thereafter the present petition has
been filed. Admittedly disputed questions of facts with regard to
possession, relation between employer-employee, etc. are involved
in the matter which cannot be gone into by this Court.
5.1 Further,
having regard to the nature of the relief sought in this petition,
this Court is not required to enter into the question whether a
writ is maintainable against KRIBHCO or not inasmuch as the relief
sought in the present petition is direction against the eviction of
the workers of the petitioner Union from Jetty Colony. Assuming that
a writ remedy is available, the relief which is claimed by the
petitioner cannot be granted by this court under Article 226 of the
Constitution of India. The adjudication in that
behalf necessarily involves disputed questions
of fact which require investigation. In such a case, proceedings
under Article 226 of the Constitution can hardly be an appropriate
remedy and the appropriate remedy for the petitioners is to
approach the Civil Court or any other appropriate authority under
the provisions of Eviction Act, which may be available to them. In
that view of the matter I do not find any merits in the matter and
therefore the petition is rejected.
6.0 However,
it is hoped that the respondent authority will not commit any
illegality for evicting the members of the petitioner No.1 Union
from the residential premises in question. Direct service is
permitted today.
[K.S.
JHAVERI, J.]
ar
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