Himachal Pradesh High Court
Sonam Negi vs H.P. Tourism Development Corporation ... on 30 August, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMOs No. 132, 133 and 140 of 2019 Reserved on: 27.8.2019 .
Decided on : 30.8.2019 CMPMO No. 132 of 2019 Sonam Negi ..Petitioner Versus H.P. Tourism Development Corporation Ltd ..Respondent.
CMPMO No. 133 of 2019 Ram Kumar ...Petitioner Versus H.P. Tourism Development Corporation Ltd ...Respondent CMPMO No. 140 of 2019 Swami Nath ...Petitioner Versus H.P. Tourism Development Corporation Ltd.
..Respondent Coram Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? yes ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 2 ________________________________________________ For the petitioner(s) : Mr. Y.P. Sood, Advocate.
For the respondent.: Mr. Naresh Kaul, Advocate.
.
Sureshwar Thakur, Judge The instant petitions are directed against the concurrently recorded orders, made upon, case(s) No. 3 of 2008, 4 of 2008, and, 5 of 2008, against the petitioner(s) herein, hence respectively by the Collector, Sub Divisional Officer (Civil), Shimla, Rural, exercising the powers of Collector under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971, and, thereafter affirmed, by, the learned Divisional Commissioner, Shimla, under Annexure P-5. Since the impugned order, borne in Annexure P-5, in all the petitions, is, rendered conjointly, upon, appeals, respectively bearing No. 204 of 2017, No. 205 of 2017, and, No. 206 of 2017, thereupon all the CMPMOs, are also amenable, for, a common verdict being pronounced thereon.
2. Under the impugned orders, the, petitioners were directed to be evicted, from, the demised premises. Before proceeding to allude to the generation of the dispute engaging the contesting litigants, as stands sparked from a statutory notice of eviction, issued, , against the respective tenants/petitioners herein, (a) it is deemed imperative to allude to the statutory definition, meted to, "unauthorized occupation", as borne, in Section 3, of, the Himachal Pradesh 2 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 3 Public Premises and Land (Eviction and Rent Recovery) Act, 1971, provisions whereof stand extracted hereinafter:
"3. Unauthorized occupation of public .
premises:- For the purposes of this Act, a person shall be deemed to be in unauthorized occupationof any public premises-
(a) where he has whether before or after the commencement of this Act entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant;
or
(b) where he, being an allottee, lessee or grantee,
has by reason of the determinationor
cancellation of his allotment, lease or grant in accordance with the terms inthat behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises; or
(c) where any person authorized to occupy any public premises has, whether before or after the commencement of this Act
(i) sub-let in contravention of the terms of allotment, lease or grant, without the permission of the State Government or of any other authority competent to permit such sub-letting the whole or any part of such public premises, or
(ii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorized to occupy such public premises."3 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 4
The afore extracted provisions, would beget their apt attraction, against, the tenants/petitioner, herein, upon theirs' entering, .
upon, the demised premises, hence evidently unauthorizedly, comprised in (a) without prior thereto any valid allotment being made qua them, or without any valid lease standing granted, qua them, and, vis-à-vis, the demised premises, rather by the authority(s) concerned, or the afore allotments, though made, in the ordained manner(s), hence coming, to, stand validly terminated, or rescinded, c) the terms of the allotment, being proven to be evidently breached, by the tenant/licensee. Also, it is important to allude to the provisions, borne in Section 4, of, the Act, provisions whereof stand extracted hereinafter:
" 4. Issue of notice to show cause against order of eviction-(I) If the Collector is of opinion that any persons are in unauthorized occupation of any public premises situate 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-
(a) specify the grounds on which the order of eviction is proposed tobe made; and
(b) require allpersons concerned, that is to say, all 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 4 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 5 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.
Wherein a statutory mandate is encapsulated, vis-à-vis, the, assumption of jurisdiction by the Collector concerned, for, hence, it, assuming, a, hue of validity, an injunction being cast upon him, to preceding therewith, his ensuring serving, of, the apposite show cause notice, upon, the tenant concerned, mentioning therein the grounds, of eviction, hence for his therethrough being strived to be evicted, from, the demised premises. Moreover, it is also imperative to allude, to the provisions, engrafted in Section 7, of, the Himachal Pradesh Public Premises and Land (Eviction and Rent Recover) Act, 1971, provisions whereof stand extracted hereinafter:
5 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 6"7. Power to require payment of rent or damages in respect of public premises:- (I) Where any person is in arrears of rent payable in respect of any public .
premises, the Collector may, by order, require that person to pay the same within such time as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorized occupation or any public premises, the Collector may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time as may be specified in the order.
(3) No order under sub-section (I) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same have been considered by the Collector:
Wherein, vis-à-vis, the tenant, falling in arrears of rent, in respect, of, any public premises, (a) thereupon the Collector concerned, being enjoined to make an order, qua, the 6 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 7 defaulting tenant, liquidating the apposite arrears of rent, within, the stipulated period of time, as, specified in the apposite order, (b) however, the afore mandate, encapsulated .
in sub-Section 1 of Section 7, of, the Act, though visibly, upon, the afore order being, hence complied with, thereupon, within its ambit, the defaulting tenant, rather saving his eviction, from the demised premises, (c) yet when evidently, within, the statutory parameters, encapsulated in sub-Section 2 thereof, he is found to be evidently in, authorized occupation, of, the public premises concerned, holding rather unauthorized possession, of, the premises concerned, (d) comprised in his, rather, evidently breaching the terms, of, the grant(s), made qua him, (e) thereupon the mandate borne in Section 4 of the Act, hence holding clout, and, irrespective of any assessment, of, use and occupation charges, being made rather under sub-
Section 2 of Section 7 of the Act, vis-à-vis, the defaulting/errant litigant, also not leveraging any latitude, vis-
à-vis, the errant tenant, to save his eviction, from, the public premises concerned.
3. Un-controvertedly, a perusal of the license deed, embodied in Mark-X, license deed, whereof is stated, at the bar, by the learned counsel for the contesting litigants, to be, also drawn, vis-à-vis, the other co-petitioners, unveils, (i) qua the demised premises, being licensed, vis-à-vis, the petitioners concerned, and, the longevity of the licences, surviving upto 7 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 8 11 months, and thereafter, it/their being renewable, for, a further period of 11 months, or for a shorter duration, on, a quantum, of, licence fee, as may be, determined by the .
Licensing Authority. Also, it is not controverted interse the contesting litigants, qua the requisite ordained renewal of the license deed, originally drawn, on 23.7.1988, interse the contesting litigants, rather not coming to be made. Since only, upon, renewal(s), of, the initially drawn license deed, hence the respondent herein, would be leveraged, to make an espousal, before this Court, qua the license fee, originally covenanted, in the initially drawn license deed, not being the recurring quantum of apposite license fees, rather the apt quantum of license fees, defrayable vis-à-vis, the respondent concerned, being higher, than, the one initially contemplated interse the litigating parties, (ii) whereas with the afore license deed, as stood originally drawn, on 23.7.1988, visibly remaining un- renewed, nor when there exists any recital therein, vis-à-vis, after every year, there occurring covenanted escalations in the licence fee, as is originally recited therein, (iii) thereupon all the elucidation(s), made in the original grant, do warrant, theirs being meted deference, and, the, purportedly concurring therewith, recitals, borne in the statutory notice, qua the petitioners being amenable to pay arrears, of, license fee, @ 5% per annum increase, w.e.f. 1.9.2000 to 31.10.2007, (iv) naturally rather warranting a conclusion, qua theirs being 8 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 9 surmisingly drawn, and also an inference, is begotten, qua the afore recital(s) encapsulated in the statutory notice, suffering from, for all the reasons assigned hereinafter, with a vice, of, .
thorough non-application of mind.
4. Be that as it may, a perusal of records, appertaining to the extant petition(s), unveil, qua, the respondents' through its authorized official, hence making endorsement(s), in Ext.
RW1/A, with clear unfoldments, qua, theirs accepting the payment(s) of amount, reflected in Ext. RW1/J, in Exhibit(s) whereof, the name(s), of, all the petitioner(s), are enumerated.
The afore apposite acceptance, though, is, visibly subsequent to the period, recited in the statutory notice, wherewithin, rather the petitioners herein, purportedly, erred in making apt liquidations, of license fee, vis-à-vis, the respondent-herein, (a) yet, the afore acceptance, does entail, an inference, qua also therethrough, the, making(s), of, prior thereto defaults, if any, qua the respondents/tenants, by the errant litigant, becoming condoned, and, acquiesced. In addition, the further effect, of, the afore acceptance, as, made therethrough, to the respondent herein, and, appertaining, vis-à-vis, liquidation(s), of license fee/rent, vis-à-vis, them, hence by the petitioners herein, is, though, theirs falling outside the period reflected, in, the statutory notice, (b) yet dehors the above, an inevitable inference, drawable therefrom, hence, within the ambit, of, clause (b) of Section 3 of the Act, is qua, the respondents 9 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 10 herein rather, than determining or rescinding, the, apposite allotment(s), of, the public premises, made, vis-à-vis, the petitioners, theirs rather proceeding to, dehors, theirs not .
drawing re-scribed, license deeds, with the petitioner, after, the expirty, of, the initially drawn license deeds, in, the year 1988, hence, obviously accepting the petitioners herein, to be, tenants/licensee(s), in, the demised premises, and, (b) the further corollary thereof, is, qua (c) hence within the ambit of clause (b) of Section 3 of the Act, the petitioners herein, rather being not in unauthorized possession, of, the public demised premises, (c) thereupon, the concurrently recorded orders, against them, wherethrough they were ordered to be evicted, from, the public demised premises, being legally infirm, and, also warranting interference.
5. Be that as it may, the legal notice(s), hold recital(s) bearing analogity with the recital(s), borne in the statutory notice, legal notice(s) whereof are/is issued, on 7.5.2002, and, is/are borne in Ext. PW1/F, Ext. PW1/G, and in Ext. PW1/H, exhibits whereof, are common in all the petition(s), (a), and, upon the afore standing served, upon the petitioners herein, the latter, meteing through their counsel, hence compliant response(s) thereto, (b) compliance(s), whereof, are averred in the apposite response(s), to, stand comprised, in, the rent/license fee, appertaining vis-à-vis, the demised public premises, standing liquidated, by the petitioners, vis-à-vis, the 10 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 11 respondent, uptill, December, 2007. Even though, legal notice(s), borne in Ext PW1/F, in Ext.PW1/G and in Ext. PW1/H, exhibit whereof, are, common vis-à-vis, all the petitions, stood .
hence issued, on 7.5.2002, and, when the statutory notice(s), were, issued on 13.5.2008, and when, a, perusal of the liquidation(s), as embodied, in, Ext(s) RW1/D, RW1/E, RW1/F,RW1/G, and, Ext. RW1/H, cast reflections, qua liquidation(s), being made upto, the period, hence appertaining prior to the issuance, of the statutory notice(s), (c) thereupon, even though, the afore liquidation(s), are made, subsequent, to, issuance of Ext. PW1/F, Ext. PW1/G and Ext. PW1/H, (d) thereupon it was inappropriate for the learned authority below, to, construe that the afore liquidation(s), were made, only, for saving the apposite eviction, (e) conspicuously, given the liquidation(s), being made prior to the issuance, of the statutory notice(s), and, with the afore(s) occurring, in the closest contemporaniety therewith, or in quick spontaneity, vis-à-vis, the issuance, and, serving, of Exts. PW1/f, Ext.
PW1/G and Ext.PW1/H (f) thereupon, all the recital(s), borne in subsequent thereto issued, hence statutory notice(s), do, on all fronts, both stagger, and, also lose efficacy(es).
6. The learned counsel appearing, for the respondent contends with much vigor, before this Court that the non-
drawing, of, the license deed, interse the contesting litigants, bringing forth, the requisite encumbrance(s), of, eviction of the 11 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 12 petitioners, hence from the demised premises, as, perse thereupon apt ipso facto rescission or determination, of, apt tenancy(s), becoming enlivened, and, hence the proceedings, .
drawn, under Section 4 of the Act, being validly drawn, (a) however, the afore submission also falters, given the respondents, for all the reasons aforestated, hence waiving or abandoning, all the grounds, falling within the ambit, of, section 4 of the Act, and further more, when only, upon, re-drawing(s), of, all the requisite extendable deed(s) of license, (b) rather valid escalation(s), in, the license fee, would occur, whereas, when the requisite extendable license deed(s), rather remained un-renewed interse the contesting litigants, (c) and, when in contemporaneity, vis-à-vis, the afore default(s),hence arising within 11 months, elapsing since the year 1988, the respondents were validly leveraged, to determine or rescind, the, license deed, (d) whereas the afore endeavor rather remaining visibly un-recoursed by the respondent, nor the afore rescission(s) hence occurring thereat, (e) rather when the respondent/complainant, for all the afore reasons, had proceeded to, accept the rent, upto the year 2012, (f) whereupon it stands, construed qua implied renewals, of, the apposite grant hence occurring, dehors non-drawing, of, any scribed renewed, lease deed(s),(g) and, hence, it is formidably concluded, qua their being, no evident apposite breach(es), on the part of the petitioners, comprised in theirs falling either to 12 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP 13 ensure, the, making(s), of, any scribed renewal license deed(s), interse them, and the respondent(s) herein, (h) nor also theirs being enjoined to make escalated liquidation(s), of, .
license fee(s), vis-à-vis, the respondents, conspicuously when the afore liquidation(s), were, as displayed, by the afore referred exhibits, rather accepted by the respondent. Hence, with there being no evident breach(s), visited, upon, the originally drawn license deed(s), interse the petitioners, and, the authorized official of the respondent herein, thereupon the impugned order is, rather un-meritworthy, and, warrants interference.
7. Consequently, there is merit in the petition(s), and, the same are allowed. The impugned order(s), Annexure P-5, rendered on 6.12.2018, in Appeal Nos 204 of 2017,205 of 2017 and 206 of 2017, are all quashed and set aside. The pending application(s), if any, are also disposed of. No costs.
(Sureshwar Thakur) Judge 30.8.2019 Kalpana 13 ::: Downloaded on - 29/09/2019 02:55:01 :::HCHP