Himachal Pradesh High Court
Himachal Pradesh Housing And Urban ... vs Dr. K. K. Parmar on 1 August, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 2818 of 2008
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Date of decision: 01.08.2019.
Himachal Pradesh Housing and Urban Development Authority
.....petitioner
Versus
Dr. K. K. Parmar ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Yes
Whether approved for reporting?1
For the Petitioner: Mr. C. N. Singh, Advocate.
For the Respondent: Mr. Bhuvnesh Sharma, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
The petitioner sought eviction of the respondent by taking recourse to proceedings under Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (for short the 'Public Premises Act'). It was averred that the respondent had encroached upon the land of the petitioner by raising two toilets marked as "ABOQ' & 'EFGH' and unauthorised construction marked as 'IJKL' in the land of the petitioner and, therefore, has sought eviction.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 29/09/2019 01:39:38 :::HCHP 2
2. The Respondent contested the petition by filing reply wherein it was averred that the respondent was given defective .
plot with various problems, therefore, he had filed a complaint before the District Consumer Forum, Dharamshala, Kangra at Dharamshala wherein his claim was allowed and the petitioner was directed to pay Rs. 1,50,000/- as damages due to defective plot. In the original plan, the respondent has purchased a corner plot open from all sides and on the nalla side there was an open sewerage line of the whole colony and this necessitated the construction of 'chajja' to cover the sewerage line and this was done with the intention to protect the house of the respondent. It was further contended that the respondent purchased plot No. 52 as per original site plan of 1981 and in the year 1995 the petitioner carved out plot No. 52-A by changing original site plan without taking the respondent into confidence and the said plot was not purchased directly from the Housing Board and, therefore, terms and conditions of the Board were not applicable to the respondent. The respondent lastly challenged the jurisdiction of the Collector on the ground that the petitioner itself had admitted before the State Consumer Forum and the National Consumer Forum by filing reply that the matter was of complex nature, therefore, the same could only be adjudicated before the Civil Court.
::: Downloaded on - 29/09/2019 01:39:38 :::HCHP 33. When the petition came up for consideration before the adjudicatory authority, the same was disposed of by .
observing as under:-
"From the perusal of the claim and counter claim as above, I am of the opinion that the matter is of complex nature, and premature to pass any order under the Public Premises Act.
Since the situation of the case is such that when the plan was originally advertised in 1981, the plot No. 52 was corner plot for which higher cost was paid and subsequently the other new plot No. 52-A was carved out in 1995, thereby reducing the open space of the respondent, and this matter is beyond the adjudication of this Court. Again the petitioner has itself admitted before the District Consumer Forum vide (Annexure R-XVI) and State Consumer Commission vide (Annexure RXIX) that all the questions involved in the case are of complex nature, and making the dispute to be of a civil nature and it has further been brought to the notice of this Court by the respondent that about in 10 cases the Housing Board has filed encroachment cases in the Civil Courts where the actual jurisdiction lies, and adduced the copy of Housing Board versus Prittam Singh and Housing Board vs. R.P. Nagapal for perusal which support the contention of the respondent.
Since in the present case, matter being complex are to be adjudicated by the competent court of jurisdiction, and as per the direction of National Consumer Forum the respondent has filed the suit for declaration to the effect of allotment of plot No. 52-A in the Court of Sub Judge 1 st Class Palampur, dated 03.05.2003, fact also admitted by the petitioner, hence outcome of the Civil Court will be automatically binding on both the parties, and the present petition being premature and complex one is not tenable to ::: Downloaded on - 29/09/2019 01:39:38 :::HCHP 4 be maintained and is accordingly dismissed without any cost.
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4. It would be evidently clear from the aforesaid that the Collector has failed to give any detailed reasons regarding question(s) involved in the present case which were of a complex nature. He simply stated that "it was a case where the plan was originally advertised in 1981, the plot No. 52 was corner plot for which higher cost was paid and subsequently the other new plot No. 52-A was carved out in 1995 thereby reducing the open space of the respondent (petitioner herein) and therefore the matter was beyond the adjudication of this Court".
5. The Collector seems to have been unnecessary influenced by the fact that the petitioner itself had admitted before the District Consumer Forum and the State Consumer Commission that the questions involved in the case were of complex nature making the dispute of civil nature, little realising that the dispute before the District Consumer Forum and the State Consumer Commission was altogether different whereas the plain and simple case before the Collector was that the respondent had encroached upon the land belonging to the petitioner by raising two toilets and further raising unauthorised construction over its land.
6. As observed above, in absence of any specific reason or justification that there were indeed disputed questions of fact ::: Downloaded on - 29/09/2019 01:39:38 :::HCHP 5 and law that could not be gone into by the Collector, he could not have shrieked away from his responsibility in deciding the .
case.
7. Now adverting to the suit, which was stated to be pending in the Court of Sub Judge, Ist Class, Palampur, the copy of the plaint has filed alongwith CMP No. 5503 of 2017, discloses that the same, in fact, had been filed by the respondent and not Prayer-A r to the petitioner for the following relief(s):-
Suit for grant of decree of declaration to the effect that creation of Plot No. 52-A in Holta Colony Palampur of HIMUDA by the defendant No. 1 is wrong, illegal, null and void and against the original site plan and the allotment of Plot No. 52-A of Holta Colony Palampur of HIMUDA and Plot No. 5 of HIMUDA Colony at Lohna, Palampur, District Kangra H.P. to the defendant No. 2 by the defendant No. 1 is wrong, illegal, null and void, against the Rules, Policy and Act of the HIMUDA, with consequential relief of permanent and prohibitory injunction restraining the defendants from changing the nature of the Plot No. 52-A of Holta Colony Palampur of HIMUDA and Plot No. 5 of HIMUDA Colony at Lohna, Palampur, District Kangra, H.P. by way of raising structure and alienating and encumbering the same by way of sale, gift, transfer, mortgage etc. Prayer-B Suit for the grant of decree of mandatory injunction directing the defendant No.1 to cancel the creation and allotment of Plot No. 52-A of Holta Colony, Palampur of HIMUDA and Plot No. 5 of HIMUDA Colony at Lohna, ::: Downloaded on - 29/09/2019 01:39:38 :::HCHP 6 Palampur, District Kangra, H.P. in favour of defendant No. 2 and allot the land of Plot No. 52-A of Holta Colony, .
Palampur of HIMUDA in favour of plaintiff.
8. A perusal of the relief clause reproduced above would reveal that the prayer made in the suit had nothing to do with the petition filed by the petitioner for eviction on the ground of encroachment made by the respondent which was exclusively triable by the Collector.
9. Coming to the order passed by the Divisional Commissioner in the appeal filed by the petitioner, it would be noticed that the same has been dismissed by according the following reasons:-
As per provisions of the Public Premises Act, if the Collector is of opinion that any persons are in unauthorized occupation of any public premises, he shall issue notice calling upon all persons concerned to show cause why an order of eviction should not be made. As per section 5, if after considering the reply of the notice under section 4 of the Collector is satisfied then the premises are in unauthorized occupation, he may make an order of eviction. In this case after considering the reply, the Collector has reached to the conclusion that the matter is of complex nature and therefore no order should be passed under the Public Premises Act. Thus, he has not passed any order under Section 5 in this case. As per section 9, an appeal lies from the order made under Section 5 by the Collector. In this case, no order under Section 5 has been made and the Collector has simply dropped the proceedings due to the reason mentioned in ::: Downloaded on - 29/09/2019 01:39:38 :::HCHP 7 the order. Thus, an appeal from the impugned order does not lie in this Court. The Public Premises Act is a .
mechanism to ensure eviction of unauthorized occupant from the public premises and is not a mechanism to decide civil dispute between the parties. This is an alternative proceeding for eviction of unauthorized occupant from the public premises and can be taken up only when unauthorized occupation is very obvious and circumstances justify a summary procedure provided under this Act. Thus, by not passing an order under Section 5 of the Public Premises Act, the rights of the parties have not been affected which they can enforce through appropriate civil proceedings. The Collector has just refused to pass an order under Section 5 because he did not find sufficient reasons to do so. As has been mentioned above, no appeal under Section 9 has been provided against such an order. Therefore, the appeal is dismissed."
10. To say the least, the reasoning accorded by the appellate authority is totally flawed merely because the Collector had refused to entertain the petition on the ground that the matter was of complex nature, therefore, no order should be passed under the Public Premises Act, did not mean that an appeal against the said order was not maintainable. The appellate authority was essentially required to go into the question whether the reasoning given by the Collector was sustainable in the eyes of law and only then and alone then could he have refused to interfere in the appeal but under no ::: Downloaded on - 29/09/2019 01:39:38 :::HCHP 8 circumstances could it have been held that the appeal from the impugned order did not lie before the Divisional Commissioner.
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The Divisional Commissioner further erred in concluding that since no order had been passed under Section 5 of the Act, therefore, the rights of the parties had not been effected and could be enforced through appropriate civil proceedings.
11. As per Section 9, the appeal lies against an order made by the Collector under Section 5 of the Act, therefore, even the order passed by the Collector refusing to entertain the petition is an order which is appealable under Section 9 of the Act, which reads thus:-
"Appeals-(1) An appeal shall lie from every order of the Collector made in respect of any public premises under Section 5 or Section 7 to the Commissioner. (2) An appeal under sub-section (1) shall be preferred-
(a) in the case of an appeal from an order under Section 5, within thirty days from the date of publication of the order under sub-section (1) of that section; and
(b) in the case of an appeal from an order under section 7, within thirty days from the date on which the order is communicated to the appellant.
Provided that the Commissioner may entertain the appeal after the expiry of the period of thirty days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) Where an appeal is preferred from an order of the Collector, the Commissioner may stay the enforcement of that order for such period and on such conditions as he deems fit.
::: Downloaded on - 29/09/2019 01:39:38 :::HCHP 9(4) Every appeal under this section shall be disposed of by the Commissioner as expeditiously as possible.
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(5) The costs of any appeal under this section shall be in the discretion of the Commissioner.
12. Strangely enough, even the Divisional Commissioner has not gone into the question as to why and how the jurisdiction of the Collector to entertain the eviction petition was barred and further has simply dittoed the order passed by the Collector.
13. Above all, both the authorities have failed to take note of Section 15 of the Act which specifically bars the jurisdiction of the Civil Court to entertain any suit or proceedings in respect of eviction of any person who is in unauthorised occupation of any public premises.
14. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed. The order passed by Collector, Palampur Sub Division Palampur as affirmed by the learned Divisional Commissioner, Kangra Division, is set aside.
15. The parties through their counsel are directed to appear before the Collector, Palampur Sub Division Palampur on 19.08.2019. Since, this eviction petition was instituted as far back more than two decades back i.e. on 18.11.1996, the Collector shall decide the same as expeditiously as possible and in no event later than 31 st December, 2019. The petition is ::: Downloaded on - 29/09/2019 01:39:38 :::HCHP 10 disposed of in the aforesaid terms, leaving the parties to bear their own costs.
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16. For compliance of the judgment to come up on 01.01.2020.
(Tarlok Singh Chauhan),
Judge
1st August, 2019
(sanjeev)
r to
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