Himachal Pradesh High Court
Anil Bhardwaj vs Of on 24 August, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 407 of 2010
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Reserved on: 05.08.2016
Date of decision: 24.08.2016
Anil Bhardwaj .... Petitioner
Versus
of
State of Himachal Pradesh and another ... Respondents.
Coram : rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the petitioner: Mr. B.S. Chauhan, Sr. Advocate
with Mr. Vaibhav Tanwar, Advocate.
For respondent No. 1: Mr. V.S. Chauhan, Addl. AG with
Ms. Parul Negi, Dy. AG.
For respondent No. 2: Mr. Ramakant Sharma, Sr. Advocate
with Ms. Devyani Sharma, Advocate.
Ajay Mohan Goel, J.
This writ petition has been filed praying for the following reliefs:
a) "That the writ of certiorari may be issued in favour of the petitioner and against the respondents by 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 2
quashing the impugned order Annexure P-4 and P-5 respectively.
b) That the writ of mandamus may be issued against .
the respondents directing them not to claim arrears beyond three years being time barred."
2. Brief facts necessary for adjudication of the present case are that in pursuance to auction conducted on 27th July, of 1993, basement area of the building known as Municipal Coffee House, situated near District Library, Theog, Tehsil rt Theog, District Shimla, owned by respondent No. 2 was leased out to the petitioner, on yearly basis, on annual rent of ` 21,500/-. As per the petitioner, after taking physical possession of the basement area, he could not occupy the same as there was septic tank as well as sewerage pipe passing through the said premises, which was emitting foul smell. This had become main bone of contention between the petitioner and respondent No. 2, as on account of emission of the foul smell, the premises which was let out to the petitioner, could not be used by him. Respondent No. 2 filed petition under Sections 4 and 7 of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (hereinafter referred to ::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 3 as '1971 Act') against the petitioner before the Sub Divisional Collector, Theog in the year 1995 for recovery of rent, use and .
occupation charges and for eviction. As per Municipal Committee, Theog, though the premises in issue had been let out to the present petitioner, however, the petitioner despite verbal requests and notices, failed to deposit the outstanding of amount which he owed to the Municipal Committee, on account of which the allotment of the premises in question rt stood cancelled vide notice dated 17.05.1994. It was further the case of the Municipal Committee that even after the cancellation of the allotment, the petitioner was in occupation of the premises, which occupation of his had become illegal and without consent. On these bases, Municipal Committee filed the petition under Sections 4 and 7 of the 1971 Act for eviction of the petitioner as well as for direction to him to pay use and occupation charges and rent due etc. This notice was replied to by the present petitioner wherein he took the stand that the petition was not maintainable as Municipal Committee had failed to perform the obligation, in respect of the delivery of possession of the leased portion and thus ::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 4 prevented the respondent from occupation of the leased portion by non-performance of condition precedent.
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3. Vide order dated 28.11.2002, Sub Divisional Collector, Theog, allowed the petition so filed by the Municipal Committee, Theog, holding the present petitioner in arrears of an amount of ` 2,11,016/- as due from him to Municipal of Committee, Theog. The Authority had also directed the present petitioner to vacate the premises in issue within one month rt from the date of order, failing which he was to be evicted by use of force.
4. Feeling aggrieved of the order passed by the Sub Divisional Collector, Theog, the present petitioner filed an appeal under Section 9 of the 1971 Act, which appeal was dismissed by the Appellate Authority i.e. Divisional Commissioner, Shimla Division, vide order dated 21.12.2009.
5. Both these orders have been challenged in the present writ petition.
6. Mr. B.S. Chauhan, learned Senior Counsel appearing for the petitioner has argued that the proceedings initiated against the petitioner under Sections 4 and 7 of the ::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 5 1971 Act and orders passed on the said proceedings by Sub Divisional Collector, Theog as well as the Appellate Authority .
are non-est and void abinitio. Mr. Chauhan argued that the entire proceedings which were initiated against the petitioner under the 1971 Act stood vitiated for want of a proper notice as is envisaged under Section 4 of the 1971 Act. He argued of that the purported notice served upon the petitioner under Sections 4 and 7 of the 1971 Act was no notice in the eyes of rt law as it did not contain necessary ingredients as are contemplated in Section 4 of the 1971 Act. On these bases, he argued that as the very initiation of the proceedings against the petitioner under the 1971 Act were bad in law, the subsequent orders passed by the authorities in the proceedings so initiated were illegal, non-est, perverse and not sustainable in law. On these bases, he prayed that the present petition be allowed and the orders passed by the authorities below, on the proceedings initiated against the petitioner under Sections 4 and 7 of the 1971 Act, be quashed and set aside.
::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 67. Mr. Ramakant Sharma, learned Senior Counsel appearing for the respondent, on the other hand, argued that .
though there was no notice issued to the petitioner, as is envisaged under Section 4 of the 1971 Act, however, this did not vitiate the proceedings because the petitioner had not pointed out as to what prejudice has been caused to him by of non-issuance of the said notice. Mr. Sharma, further argued that the factum of the petitioner not having paid the rent to rt the Municipal Committee, Theog, as was agreed upon between the parties, is not disputed. He further argued that keeping in view the fact that the allotment in favour of the petitioner stood cancelled by the Municipal Committee and thereafter the possession of the petitioner had become illegal, there was no perversity with the orders which had been passed by the authorities on the petition filed by the Municipal Committee, Theog, under Sections 4 and 7 of the 1971 Act. In the alternative, Mr. Sharma, argued that if this Court comes to the conclusion that there was no proper notice issued under the provisions of Section 4 of the 1971 Act, even then the orders passed by the authorities on the petition filed by the Municipal ::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 7 Committee, Theog under Section 7 of the 1971 Act do not call for any interference and at the best, the findings returned by .
the authorities below qua the eviction of the petitioner, can be set aside and that too with liberty to Municipal Committee, Theog to proceed against the petitioner in accordance with law.
8. I have heard the learned counsel for the parties and of have also gone through the pleadings as well as records of the case. rt
9. In my considered view, there is force in the contention of learned counsel for the petitioner to the effect that the order passed by Sub Divisional Collector, Theog, dated 28.11.2002, vide which he has directed the petitioner to vacate the premises in issue, is void abinitio. The provisions of Section 4 of the 1971 Act are mandatory in nature. A perusal of the record of the case reveals that no notice, as is envisaged under Section 4 of the 1971 Act, was ever issued to the present petitioner. In the absence of any such notice having been issued to the petitioner, the proceedings for eviction of the petitioner under the 1971 Act perse were void abinitio.
Section 4 of the 1971 Act reads as under:-
::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 8"Issue of notice to show cause against order of eviction-(1) If the Collector is of opinion that any persons are in unauthorized occupation of any public premises .
situated within his jurisdiction and that they should be evicted, the Collector shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
(2) The notice shall-
of
(a) specify the grounds on which the order of eviction is proposed to be made; and
(b) require all persons concerned, that is to say, all rt persons who are, or may be, in occupation of, or claim interest in, the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof.
(3) The Collector shall cause the notice to be affixed on the outer door or some other conspicuous part, of the public premises, or of the estate in which the public premises are situate, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. (4) Where the Collector knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of sub-section (3) he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed."::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 9
10. It is evident from the contents of Section 4 (supra) it is a condition precedent that before the issuance of the Notice, .
the Collector has to form an opinion as to whether any person or persons are in unauthorized occupation of the public premises situated within his/her jurisdiction and it is only thereafter that the Collector issues a notice, as is envisaged of under Section 4 of the 1971 Act. Besides this, Section 4 (2) also lays down as to what shall be the necessary contents of rt the notice so issued by the Collector. A perusal of the original record of the proceedings conducted by Sub Divisional Collector, Theog demonstrates that in fact after petition was filed by the Municipal Committee, Theog against the petitioner under Sections 4 and 7 of 1971 Act, no notice, whatsoever was issued to the respondent/present petitioner under Section 4 of the 1971 Act. Notice which has been issued to the present petitioner has been issued under Sub-Section 1 of Section 7 of the 1971 Act, which reads as under:
"7. Power to require payment of rent or damages in respect of public premises- (1) Where any person is in arrears of rent payable in respect of any public premises, ::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 10 the Collector may, by order, require that person to pay the same within such time as may be specified in the order."
11. A perusal of this notice demonstrates that all that .
was mentioned in the same was that the present petitioner was in occupation of the public premises subject matter of the said notice and he was in arrears of rent thereof and of accordingly, show cause notice was issued by Sub Divisional Collector, Theog to the present petitioner to the effect as to rt why an amount of ` 17,312/- should not be recovered from him as arrears of rent. In other words, in the notice, there was no reference that the petitioner was in unauthorized occupation of any public premises nor it was mentioned therein that on account of the petitioner being in unauthorized occupation of the said premises, he owed any amount to the Municipal Committee, Theog. Therefore, at the best, the notice which was issued upon the petitioner by the Collector, appears to be the one which is intended under Section 7(1) of the 1971 Act. However, Section 7 (1) of the 1971 Act, neither deals with the eviction of an unauthorized occupant from the public premises nor this sub-Section deals with payment of damages ::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 11 recoverable from a person who is in unauthorized occupation of a public premises. This means that the order which has .
been passed by the said authority against the petitioner directing him to vacate the premises in issue is void abinitio.
Similarly, the order passed by learned Appellate Authority whereby it has confirmed the order so passed by the Sub of Divisional Collector, Theog is also non est, perverse and illegal.
Learned Appellate Authority has failed to appreciate that the rt order of eviction passed by the Collector was beyond the scope of notice which was issued to the petitioner. The judgment relied upon by the learned senior counsel for the respondent No. 2 passed by this Court in Roop Kaur and others Versus State of H.P. and others, 2008 (1) Shimla Law Cases 20, is of no assistance to the respondents herein because in that case notices under Section 4 of the 1971 Act were directed to be issued and though the copies of the notice which was issued/sent, were not on record but the petitioners therein had filed a detailed reply in opposition to that ejectment proceedings. In the present case, it is a matter of record that no notice under Section 4 of the 1971 Act has ever been issued ::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 12 to the present petitioner by the Sub Divisional Collector, Theog.
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12. This Court has held in Latest HLJ 2004 (HP) 935, that in a case where the Collector has failed to form an opinion or to record his satisfaction that persons were in unauthorized occupation of the public premises and that they should be of evicted, the notice of the Collector is bad and the entire proceedings stood vitiated.
rt
13. High Court of Jammu and Kashmir in Dr. Yash Paul Gupta v. Dr. S.S. Anand and others (AIR 1980 J & K 16, has held that where the grounds of eviction were not stated in the notice issued under Section 4(1) of the Act, such notice would be invalid and eviction orders passed in pursuance of such notice would be bad.
14. Therefore, in my considered view, the order passed by Sub Divisional Collector, Theog, ordering eviction of the petitioner from the premises in issue is bad and as such the same is quashed and set aside. The order passed by the Appellate Authority confirming the order so passed by the Sub Divisional Collector, Theog, is also quashed and set aside.
::: Downloaded on - 15/04/2017 21:04:37 :::HCHP 13However, Municipal Committee, Theog, shall be at liberty to proceed against the petitioner for his eviction from the public .
premises strictly as per the provisions of 1971 Act. Order which has been passed by the Sub Divisional Collector, Theog, directing the present petitioner to pay to the Municipal Committee, Theog, lease amount of ` 21,500/- per annum as of use and occupation charges with effect from 01.01.1993 with interest is upheld because this order passed by Sub Divisional rt Collector, Theog, is in consonance with the issuance of notice under Section 7(1) of the 1971 Act. Petitioner has not been able to legally justify non-payment of use and occupation charges. His grievance, if any, against respondent No. 2 does not permit him to deprive respondent No. 2 from receiving rent from the petitioner as per agreement. Therefore, he is liable to pay lease amount as per agreement with interest as ordered.
15. The writ petition is partly allowed in the above terms. Pending miscellaneous application(s), if any, also stand disposed of. No orders as to costs.
(Ajay Mohan Goel)
August 24, 2016 Judge
(narender)
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