IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA C. M P.M. O. No. 12 5 of 2002 Judgment Reserved on 21.4.2009 Date of decision: 23 . 4. 2009 Municipal Council, Theog ….. Petitioner Versus Collector Sub Division, Theog and another ….. Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the petitioner: Mr. Ramakant Sharma, Advocate. For the respondent: Mr. J.S.Guleria, Asstt. Advocate General, for respondent No. 1. Mr. Harsh Khanna, Advocate, for respondent No. 2. Surinder Singh, J. Heard and gone through the record. The Sub Divisional Collector, vide his detailed order dated 30.4.2002, dismissed the execution petition filed by the petitioner herein for the recovery of charges for the use and occupation of the land measuring 13 biswas comprised in khasra Nos.461/463,465/34/3/2 situated at Chak Janoghat Tehsil Theog, which has been assailed by filing the present petition under Article 227 of the Constitution of India. In brief, facts giving rise to the present petition are that the respondent was held to be in unauthorized possession of the land aforesaid, 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - vide order dated 25.6.1997, passed in case No. 34- Misc/95,by the Sub Divisional Collector under Section 4 of the H.P. Public Premises and Land (Eviction and Rent Recovery),Act, 1971, in short the Act. He was also held liable to pay an amount of Rs. 13275/- to the petitioner as use and occupation charges w.e.f. 1.4.1993 to 25.6.1997 @ 200/- per month with simple interest @ 10% per annum under Section 7 of the said Act, which was challenged in appeal before the Commissioner. Vide order dated 6.8.1998 passed in Misc. appeal No. 37/1998, the Commissioner observed and ordered vide paras 2 and 3 as under:- “2. The order of the Collector, Theog Sub Division holding the appellant’s possession over the said 13 biswas as unauthorized and evicting hi from the same has been upheld separately vide order in case No. 36/1998 dated 6.8.1998 while dismissing an appeal filed by the present appellant against the order of Collector, Theog Sub Division in case No.. 26-Mis./88 dated 25.6.1997. 3. In view of this the only issue which is to be decided in the present appeal is the extent of use and occupation charges which the appellant should be held liable to pay for his unauthorized possession. In view of the fact that the appellant has taken the plea that his actual possession is on less than 13 biswas, the order of Collector is modified to the extent that the use and occupancy charges may be calculated afresh based on the actual area on which the appellant is found to be in unauthorized possession. However, the use and occupancy charges shall be levied up to the - 3 - date of actual eviction of the appellant from the said premises and not only upto 25.6.1997 as calculated by the Collector, Theog Sub Division in his order.” The petitioner preferred the execution petition for the recovery of the use and occupation charges, which was dismissed by the Sub Divisional Collector vide his order dated 30.4.2002 on the ground that the matter needs re- verification on the spot and area under use and occupation is required to be calculated again as per the latest position. Therefore, directed the petitioner that the arrears of use and occupation charges be recalculated as per the latest position and amended petition be filed. I find no illegality in the order as the use and occupation charges qua khasra No. 461/463,465/34/3/2 measuring 0-13 biswas are to be calculated as per the orders of the Commissioner passed in appeal if the area is found to be less than 0.13 biswas in the unauthorized possession of the respondent but in this case it was more. Thus, it is open to the petitioner concern to file fresh execution application for the recovery of arrears in terms of the orders of the Commissioner. Therefore, the present petition is accordingly dismissed. April 23, 2009 (Surinder Singh),J. (cm)