C.W.P No.1170 of 1987 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : August 16, 2010 1. C.W.P No.1170 of 1987 (O&M) State of Haryana vs Balwant Singh and others, 2. C.W.P No.2741 of 1987 (O&M) The State of Haryana vs Shri Gurdeva Nand Chela Brahmanand and others. *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Sukant Gupta, Addl. A.G Haryana for the petitioner. Mr. Dinesh Sharma, Advocate for respondent No.1 in CWP No. 1170 of 1987. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This order shall dispose of Civil Writ Petition Nos. 1170 and 2741 of 1987 as common questions of law and facts are involved therein. For the sake of convenience, facts are being extracted from CWP No.1170 of 1987. The petitioner has challenged the order dated 13.11.1985 (Annexure P-1) whereby an application under Sections 5 and 7 of the Haryana Public Premises Land (Eviction and Rent Recovery) Act, 1972 (for short `the Act') has been rejected, as also the order dated 20.5.1986 C.W.P No.1170 of 1987 (O&M) ::2:: (Annexure P-2) whereby the appeal against the order (Annexure P-1) has been dismissed on the ground of non-maintainability. Brief facts, which are not disputed, are that the land in dispute, along with some other land, was originally owned by Jumla Mustarka Malkan in village Safidon. The said land was ultimately donated to the government where a government College was running. The State of Haryana thereafter filed the instant application. In response, the plea of the respondent was that actually Baba Balak Nath Temple was a Tholidar of the land in dispute since prior to the gift of the land, the land in dispute was given on lease by the Tholidar and the income thereof was being used for the benefit of the Temple. The Collector on facts found that this was indeed so. Consequently, the Collector held that even though the ownership vested in the Government yet since the Tholidar rights of Baba Balak Nath Temple had never been validly revoked, the Tholidari continued. The Collector further found that the actual occupant had been giving rent to the Baba Balak Nath Temple and the said amount was being used for the benefit of the said Temple. In the circumstances, the Collector held that the possession of the occupant cannot be termed to be illegal and dismissed the eviction application. As mentioned above, the appeal was dismissed on the ground of non-maintainability. Learned Additional Advocate General Haryana has vehemently argued that the order of the learned Commissioner dismissing the appeal is completely indefensible, since he proceeded on the basis that it was only an order of eviction which can be challenged in appeal and not the order of dismissal of the application for eviction. Learned counsel for respondent No.1 has fairly conceded this C.W.P No.1170 of 1987 (O&M) ::3:: fact. In view of this, learned counsel for the petitioner has contended that the matter should be remanded back to the learned Commissioner for a fresh decision, in accordance with law. Counsel for respondent No.1 has, however, contended that no legal infirmity can be found with the order of the learned Collector and, therefore, it would not be in the interest of justice to keep these proceedings pending any further. In my opinion, the order of the learned Commissioner suffers from an error of jurisdiction. He has wrongly assumed that an appeal would lie only against an order of eviction and not against an order of dismissal of an application for eviction. Consequently, this writ petition is allowed, the order of the learned Commissioner (Annexure P-2) is set aside, and the matter is remitted back to the Commissioner, Hisar Division, Hisar for a fresh decision on merits, after hearing the parties. As the main petition has since been allowed, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) August 16, 2010. JUDGE `kk'