Civil Writ Petition No.907 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.907 of 2011 Date of Decision:07.12.2011 Sanjay Kumar ......Petitioner Versus State of Haryana and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.M.L.Puri, Advocate, for the petitioner. Mr.D.Khanna, Additional Advocate General, Haryana, for respondent Nos.1 to 3. Mr.Raman B.Garg, Advocate, for respondent No.4. Nemo for the remaining respondents. **** M EHINDER S INGH S ULLAR , J.(oral) The epitome of the facts, culminating in the commencement, relevant for disposal of the present writ petition and emanating from the record is that, the Municipal Committee, Barwala(respondent No.4)(for brevity “the respondent- Committee”) was stated to have passed a Resolution(Annexure P-1) on 27.08.2003, leasing out the land in litigation to the petitioner for a period of ten years, against the provisions of The Haryana Municipal Act, 1973(for short “the Act”). 2. The Deputy Commissioner, Hisar, in exercise of powers under Section 246 of the Act, suspended the Resolution(Annexure P-1), vide order dated 20.02.2004(Annexure P-3). Thereafter, in exercise of powers conferred under Section 249 of the Act, the Commissioner Hisar Division, confirmed the order Civil Writ Petition No.907 of 2011 2 (Annexure P-3) of the Deputy Commissioner, through the medium of order dated 30.04.2005(Annexure P-4). 3. Faced with the situation, the respondent-Committee moved an application under Sections 4, 5 and 7 of The Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 and The Haryana Public Premises and Land(Eviction and Rent Recovery) Rules, 1973(hereinafter to be referred as “the P.P.Act and the Relevant P.P.Rules”) for ejectment of the petitioner from the land in dispute on the ground that he(petitioner) is in its unauthorised possession and it (respondent-Committee) is entitled to recover the possession and compensation from the petitioner in this regard. 4. After following the procedure, the Sub-Divisional Officer, exercising the power of the Collector under the P.P.Act, passed the ejectment order and directed the petitioner to hand over the possession of the land in dispute within thirty days to the respondent-Committee. At the same time, in exercise of power under Section 7(2) of the P.P.Act, the petitioner was also ordered to pay an amount at the rate of `5,000/- per acre, along with interest @ 9% for unauthorised use and occupation of the land till the delivery of its possession, by means of impugned order dated 21.01.2010(Annexure P-5). 5. Aggrieved by the order(Annexure P-5), the petitioner filed the appeal, which was dismissed as well, by the Commissioner, Hisar Division, by way of impugned order dated 30.03.2010(Annexure P-7). 6. The petitioner still did not feel satisfied and preferred the present writ petition, challenging the impugned orders(Annexures P-5 and P-7), invoking the provisions of Articles 226/227 of the Constitution of India. 7. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after considering the entire matter deeply, to my mind, as the impugned orders(Annexures P-5 and P-7) relatable to the imposition of penalty on the petitioner, cannot legally be sustained, therefore, the Civil Writ Petition No.907 of 2011 3 instant writ petition deserves to be partly accepted in this respect. 8. As is evident from the record that, the respondent-Committee has filed a joint petition for ejectment of the petitioner and recovery of compensation under Sections 4, 5 and 7 of the P.P.Act. The Collector has passed a composite order(Annexure P-5). Similarly, the appeal filed by the petitioner was also dismissed by the Commissioner, Hisar Division, vide impugned order(Annexure P-7). 9. At the very outset, it is not a matter of dispute that the respondent- Committee has already taken the possession of the property in dispute from the petitioner, in pursuance of the ejectment order. Perhaps, that was the reason that during the course of preliminary hearing of the writ petition, learned counsel for the petitioner did not challenge the validity of the ejectment order and only confined his claim, to challenge the penalty imposed on him(petitioner) under the P.P.Act, which is clear from the notice of motion order dated March 03, 2011. 10. In this regard, learned counsel for the petitioner has contended with some amount of vehemence that the impugned orders in regard to imposing the penalty on the petitioner, are illegal and nullity for non-compliance of the statutory provisions of Section 7(2) of the P.P.Act read with Rule 6 of the Relevant P.P.Rules and the principles of natural justice. However, learned counsel for the respondent-Committee attempted to hail the orders. 11. Above being the position on record, now the short and significant question, though important, that arises for determination in this petition is, as to whether the Collector was competent to impose a penalty, without following the proper procedure, as contemplated under Section 7(2) of the P.P.Act read with Rule 7 of the Relevant P.P.Rules or not? 12. Having regard to the rival contention of the learned counsel for the parties, to me, the answer must obviously be in the negative in this context. 13. As is clear that Section 3 of the P.P.Act defines unauthorised Civil Writ Petition No.907 of 2011 4 occupation of public premises. Section 4 of the P.P.Act postulates that if the Collector is of opinion that any persons are in unauthorised 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. 14. Likewise, Section 5 of the P.P.Act posits that if, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the Collector is satisfied that the public premises are in unauthorised occupation, the Collector may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof and cause a copy of the order 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. 15. Meaning thereby, the Collector can only pass an ejectment order, after following the due procedure and he cannot impose the penalty, as envisaged under Sections 4 and 5 of the P.P.Act. He has only the power to recover the rent or damages in respect of public premises as arrears of land revenue under Section 7 of the P.P.Act and not otherwise. 16. Sequelly, Sub-Section (2) of Section 7 of the P.P.Act escalates that where any person is, or has at any time been, in unauthorised occupation of 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 and in such installments, as may be specified in the order. According to Sub-Section (3) of Section 7 of the P.P.Act, no order under Civil Writ Petition No.907 of 2011 5 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. The principle of assessment of damages has been prescribed under Rule 7 of the relevant P.P.Rules, which requires the Collector to consider the essential ingredients mentioned therein before assessing the damages. 17. A conjoint and meaningful reading of these provisions would reveal that the Collector can impose the penalty and recover the damages/compensation, only after following the statutory procedure provided under Section 7(2) of the P.P.Act read with Rule 7 of the Relevant P.P.Rules and not otherwise. This matter is no more res integra and is now well-settled. 18. An identical question came to be decided by a Division Bench of this Court in case Karnail Singh Versus Sub-Divisional Officer(Civil)-cum- Collector 2000(3) P.L.R. 458 : 2001(3) R.C.R.(Civil) 289. Having interpreted the relevant provisions, it was ruled as under(paras 4 and 5):- “4. We have thoughtfully considered the respective submissions. Sections 4 and 5 of the Act lay down the procedure for passing an order of eviction against an unauthorised occupant of public premises. Section 4 envisages issuance of show cause notice by the Collector as a condition precedent to the passing of an order of eviction. Section 5 declares that after considering the cause, if any, shown by the person upon whom notice under Section 4 has been served and the evidence, which he may produce in support of his plea, and after giving him reasonable opportunity of being heard, the Collector may make an order of eviction. Sub-section(2) of Section 7 empowers the Collector to pass an order requiring the unauthorised occupant of the public premises to pay damages. Sub-section (3) of Section 7 lays down that “no order under sub-section(1) 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 within such time as may be specified in the notice, why such order should not be made, and his Civil Writ Petition No.907 of 2011 6 objections, if any, and any evidence he may produce in support of the same, have been considered by the Collector.” Rule 6 of the Rules enumerates the factors which are required to be taken into consideration in assessing the damages. These are: “(a) the purpose and the period for which the public premises were in unauthorised occupation; (b) the nature, size and standard of the accommodation available in such premises; © the rent that would have been realised if the premiss had been let on rent for the period of unauthorised occupation to a private person; (d) any damage done to the premises during the period of unauthorised occupation; (e) any other matter relevant for the purpose of assessing the damages.” 5. It is, thus, clear that the Act and the Rules do not provide for imposition of penalty on the unauthorised occupant of public premises but the Collector can, after following the procedure prescribed by Section 7(2) and (3) of the Act read with Rule 6 of the Rules, impose damages.” 19. What cannot possibly be disputed in the instant case is that no such statutory notice under Section 7(2) of the P.P.Act read with Rule 7 of the Relevant P.P.Rules was issued to the petitioner before imposing the penalty. The mere joint notice of ejectment cannot possibly be termed to be the compliance of these statutory provisions. Moreover, no opportunity of hearing was granted to the petitioner before imposing the penalty, as envisaged under Section 7(2) of the P.P.Act. Above all, no material, much less cogent, is forthcoming on record even to suggest remotely that on what basis, the Collector has assessed the impugned compensation. 20. In this manner, as, there is a complete violation of indicated statutory provisions, therefore, the impugned orders, relatable to imposition of penalty, cannot legally be maintained. The ratio of the law laid down in the aforesaid judgment “mutatis-mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 21. No other legal point, worth consideration, has either been urged or Civil Writ Petition No.907 of 2011 7 pressed by the learned counsel for the parties. 22. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent proceedings under Section 7 of the P.P.Act, the instant writ petition is partly accepted. The impugned ejectment orders passed against the petitioner are hereby maintained in the obtaining circumstances of the case. However, the impugned orders with regard to imposition of compensation/damages on the petitioner are set aside to that extent. Consequently, the case is remitted back to the Collector, for deciding the matter afresh, after following the due procedure, in the light of aforesaid observations and in accordance with law. 23. The parties through their counsel are directed to appear before the concerned Collector on 31.01.2012 for further proceedings. December 07, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter?Yes/No Civil Writ Petition No.907 of 2011 8