Himachal Pradesh High Court
Muni Lal vs State Of H.P. & Others on 11 May, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 4940 of 2011 Date of Decision: 11.5.2017 .
Muni Lal ...Petitioner Versus State of H.P. & others ...Respondents ___________________________________________________________ Coram Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting? yes _________________________________________________________ For the petitioner: Ms. Archana Dutt, Advocate.
For the respondents : Mr. Vikram Thakur and Ms. Parul Negi, Deputy Advocate Generals, for the respondent-State.
Per Justice Ajay Mohan Goel, Judge(oral) By way of this writ petition, petitioner has challenged the order passed by learned Sub Divisional Collector, Karsog, District Mandi in file No. 15 of 2010, dated 12.1.2010, Annexure P-3, under the provisions of H.P. Public Premises and Land (Eviction & Rent Recovery) Act, 1971 and the order passed by learned Divisional Commissioner, Mandi, District Mandi in case No. 73 of 2011, dated 19.5.2011, Annexure P-4 in appeal under Section 9 of the H.P. Public Premises Act, vide which, the present petitioner has been ordered to be evicted from the government land, comprised in Khasra No. 503/250/1, which as per the respondent-State, was encroached upon by the present petitioner, which land stood ::: Downloaded on - 17/05/2017 23:59:16 :::HCHP 2 acquired by the respondent-State for the purpose of construction of karsog-Parlog road.
2. Brief facts necessary for the adjudication of the .
present case are that an application was filed under H.P. Public Premises Act, 1971, (hereinafter referred to as "the 1971 Act"), by Assistant Engineer, HPPWD, Sub Division, Karsog before Sub-Divisional Collector, Mandi to the effect that the petitioner had encroached upon the government land belonging to HPPWD by way of construction of house over khasra No. 503/250/1, situated in Mohal Kau, Tehsil Karsog measuring 0-0-9 bighas. As per the applicant/Assistant Engineer, land was owned by the state of Himachal Pradesh and was in the possession of Public Works Department and the same stood acquired for the purpose of construction of Karsog-Parlog road for public utility. It was further the case of applicant that encroachment of the same by Muni Lal-
petitioner was causing hindrance to the users of same and on these basis, the application was so filed to get the said land vacated from Muni Lal, petitioner and for having possession thereof delivered to the applicant.
3. Vide order dated 20.3.2006, said application was allowed by Sub-Divisional, Collector, Mandi, exercising powers conferred upon him under Sub Section (1) of Section 5 of the 1971 Act who ordered Muni Lal to vacate the said premises within 30 days of the date of publication of the said order.
2 ::: Downloaded on - 17/05/2017 23:59:16 :::HCHP 34. Feeling aggrieved, present petitioner filed an appeal under Section 9 of the Act. The appellate Authority i.e. Divisional Commissioner, Mandi, vide order dated 2.8.2010 .
allowed the appeal, so filed against order dated 20.3.2006, on the ground that the demarcation of the land in dispute had not been carried out by the competent authority in the presence of the aggrieved party, i.e., the present petitioner.
5. Learned appellate authority thus remanded back the case to Collector, Sub Division, Karsog, District Mandi with a direction to decide the case afresh after affording an opportunity of being heard to the parties.
6. Thereafter, vide Annexure P-3, order dated 12.1.2010, Sub Divisional Collector, Karsog again ordered the present petitioner to vacate the public premises, subject matter of the present petition, within 30 days of publication of the said order by holding the present petitioner to have had unauthorizedly encroached upon the public premises. A perusal of the said order demonstrates that after the case was remanded back, the land in dispute was demarcated by Assistant Engineer- 1st Grade, Karsog in the presence of the parties and in fact the demarcation also stood accepted by the present petitioner. By relying upon the said demarcation report of Assistant Collector, 1st Grade, it was held by learned Collector that present petitioner had encroached upon Khasra No. 503/250/1 measuring 0-0-15 bighas situated in Muhal Kao/423. Learned Collector also held that though the said 3 ::: Downloaded on - 17/05/2017 23:59:16 :::HCHP 4 land was in possession of ancestors of the present petitioner till 26.7.1986 but thereafter vide mutation No. 177, dated 26.7.1986, said land was transferred in the name of Himachal .
Pradesh Public Works Department. It further held that thereafter, as was evident from the demarcation earlier done by Field Kanungo and thereafter done by Assistant Collector, 1st Grade, Karsog, the present petitioner was found to have had encroached upon the said land measuring 0-0-15 bighas.
Learned Collector also took note of the fact that demarcation report given by Assistant Collector, 1st Grade stood accepted by the present petitioner and the same was not challenged by way of appeal etc. Learned Collector also took note of the contentions of present petitioner that the land being abadideh could not have been acquired and further that Assistant Collector, 1st Grade, who had demarcated the said land was not examined before the learned Collector. Learned Collector held that the H.P. Public Premises Act was a special law and the same overrides all other Acts whether enacted before or after the enactment of this Act, so far public property is concerned, nor the provisions of H.P. Roadside Control Act were applicable in the facts of the case. Learned Collector also took note of the contention of the State that as the State had full faith in the demarcation carried out by Assistant Collector, 1st Grade, there was no occasion to have examined him and that the present petitioner was also free to have had examined the said Officer whom he chose not to examine.
4 ::: Downloaded on - 17/05/2017 23:59:16 :::HCHP 57. On these basis, it was finally concluded by learned Sub Divisional, Collector, Mandi that the petitioner had encroached upon the government land comprised in Khasra .
No. 503/250/1, measuring 0-0-15 bighas, situated in Muhal Kao/423 and ordered the present petitioner to vacate the said premises.
8. In appeal, the order so passed by the learned Collector was upheld by Divisional Commissioner, Mandi vide order dated 19.5.2011, Annexure P-4. Learned Divisional Commissioner, Mandi, while upholding the order passed by learned Collector, held that there was no merit in the contention of the present petitioner that the proceedings initiated against him under Public Premises Act were not maintainable. Learned appellate authority also took note of the fact that disputed land had been demarcated by Assistant Engineer, 1st Grade on 4.11.2010 in the presence of the parties and the statements of the parties reflected that they had no objection of the demarcation so carried out and said demarcation stood accepted by the petitioner. It was further held by the appellate authority that the order passed by learned Collector was a speaking order, which was passed after affording reasonable opportunity of being heard. On these basis, it was concluded by learned appellate authority that there was no illegality or irregularity with the orders passed by both the authorities below.
9. Feeling aggrieved by the orders passed by the learned 5 ::: Downloaded on - 17/05/2017 23:59:16 :::HCHP 6 authorities below, petitioner has filed the present petition.
10. Ms. Archana Dutt, learned counsel for the petitioner has primarily attacked the orders passed by both .
the authorities below on the ground that both the learned courts below have erred in not appreciating that said land was abadi deh, therefore, the same could not have been acquired, without duly compensating the present petitioner. She further argued that there was no question of the petitioner having encroached upon the said land, as he was in possession of the said land much before the land was allegedly acquired by the State. No other point was urged by learned counsel for the petitioner.
11. Learned Deputy Advocate General, on the other hand, while supporting the orders passed by both the authorities below, argued that it was a matter of record that the disputed land is now owned by State of Himachal Pradesh after the same was duly acquired in accordance with law and as the present petitioner was found to have had unauthorizedly encroached upon the public premises, therefore, there is no infirmity and illegality with the orders passed by both the authorities below, who have ordered the eviction of the present petitioner from the said premises.
12. I have heard learned counsel for the parties and also gone through the records of the case, which was placed before the Court by learned Deputy Advocate General.
13. In the present petition, which has been filed 6 ::: Downloaded on - 17/05/2017 23:59:16 :::HCHP 7 under Article 226 read with Article 227 of the Constitution of India, this Court cannot lose site of the fact that it is exercising its powers of judicial review qua the orders which .
have been passed by the statutory authorities. It is not the case of the petitioner that the impugned orders passed by the authorities concerned, have been passed without any jurisdiction. Though feeble attempt was made during the course of argument to stress that the proceedings initiated under the 1971 Act were not maintainable, however, this argument could not be taken to its logical conclusion. Besides this, records of the case demonstrate that after the application was filed by Assistant Engineer, HPPWD, Sub Division, Karsog under Public Premises Act for eviction of present petitioner from the public premises, due opportunity was afforded to the present petitioner to put forth his case before the authority concerned and after hearing the parties, orders of eviction were passed by the learned Sub Divisional, Collector.
Similarly, the said order in appeal was confirmed by the appellate authority again after affording due opportunity of being heard to the parties. It is not the case of the petitioner that the impugned orders have been passed by the statutory authorities without following the procedure, as prescribed under the 1971 Act. It is also apparent and evident from the records that in fact after the first order of eviction was passed against the present petitioner on 20.3.2006, in appeal, the same was set aside on the ground that the demarcation, 7 ::: Downloaded on - 17/05/2017 23:59:16 :::HCHP 8 which was the genesis of order dated 20.3.2006, conducted by the Field Kanungo, had been carried out without associating the present petitioner. Thereafter, on remand, the .
demarcation was carried out by an authority not less than the Assistant Collector, 1st Grade in the presence of the parties and statements of the parties recorded in the process of demarcation, demonstrate that they were satisfied with the said demarcation, which demarcation revealed that in fact the petitioner had encroached upon the government land, as was the case set up against the petitioner by the State.
14. Therefore, in this background, when admittedly, the land in dispute as per revenue record stands recorded in the name of State and when demarcation carried out by Assistant Collector, 1st Grade, to which the present petitioner was also a party further proves that the petitioner has encroached upon the government land, the findings returned to this effect by both the authorities below, are neither perverse nor the same can be said to be illegal. As far as contention of learned counsel for the petitioner that as the said land was abadideh, same could not have been acquired is concerned, in my considered view, this issue cannot be decided by this Court in present petition when it is judicially reviewing the orders passed by statutory authorities under the H.P. Public Premises Act, 1971. Beside this, whether or not, the land, which is subject matter of the present petition, was acquired in accordance with law or not, is not the subject 8 ::: Downloaded on - 17/05/2017 23:59:16 :::HCHP 9 matter of the present petition. If the petitioner was in any manner aggrieved by the acquisition, process which was initiated by the State for the purpose of acquiring said land, .
then the petitioner was at liberty to have had assailed the same in accordance with law. However, in the garb of this contention, petitioner now cannot be permitted to escape the orders of eviction, which have been passed by both the authorities below, under the provisions of the 1971 Act.
15. Accordingly, in view of the discussions made hereinabove, as there is no merit in the present petition, the same is dismissed. Pending application(s), if any, are also disposed of. No orders as to costs.
(Ajay Mohan Goel) Judge May 11, 2017 (kalpana) 9 ::: Downloaded on - 17/05/2017 23:59:16 :::HCHP