IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 200 of 1999. Judgment reserved on : 27.3.2009 Date of decision : 31.3.2009. Notified Area Committee .…Appellant. Versus Bhagat Ram .. ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes. For the appellant : Mr. R.K.Sharma, Advocate. For the respondent : Mr. Ramakant Sharma, Advocate Kuldip Singh , Judge The appellant was defendant in Civil Suit No. 79 of 1989 which was dismissed on 4.2.1994 by the learned Sub Judge, Una. In Civil Appeal No. 24 of 1994, the learned District Judge, Una has set-aside the judgment, decree dated 4.2.1994 and restrained the appellant from evicting respondent by taking recourse to Section 4 of the H.P.Public Premises Act (Eviction and Rent Recovery )Act, 1971 (for short ‘Act’). In this way, the defendant has come in second appeal. 2. The facts, in brief, are that respondent on 6.2.1989 had filed a suit for permanent injunction restraining the appellant from initiating or continuing with the proceedings before the Collector under the Act on the ground that respondent is a trespasser of land underneath the property shown with red ink mark A, B, C, D, E & F in site plan comprised in Khasra 1 Whether reporters of Local Papers may be allowed to see the Judgment ? .Yes. 2 No. 128, village Santokhgarh, Tehsil and District Una vide jamabandi for the year 1983-84. 3. The pleaded facts of the case are that respondent as an ex- serviceman through his Commanding Officer applied for allotment of plot so as to run a stall to earn his livelihood on the land of appellant. The plot was allotted to respondent by appellant for installation of tea stall on khasra No. 127 vide Resolution dated 25.2.1974. Lateron it was found that the said plot was allotted to someone else, therefore, vide item No.5, resolution dated 16.9.1974 the land underneath the suit property was allotted to respondent. In pursuance of such allotment, respondent took possession of the suit land from the appellant. The respondent also raised construction of permanent nature on the suit land by raising two shops for running tea stall after spending Rs.30,000/-. The respondent lateron added one storey as shown in site plan mark G, H & I by spending Rs.25,000/- in order to expand his business. At the instance of some inimical persons, eviction proceedings were started against the respondent from the suit land which ended in favour of respondent in this Court. Thereafter, appellant again started eviction proceedings on the plea that respondent is a trespasser and the said case was fixed before the Collector on 10.2.1989. The respondent filed the suit on 6.2.1989 as noticed above. 4. The suit was contested by the appellant by taking preliminary objections of maintainability, jurisdiction, estoppel and res judicata on the ground that the writ petition filed by the respondent was dismissed by this Court qua the subject matter agitated in the suit. On merits, it was pleaded that suit land was allotted to respondent for running tea stall for specified period. The respondent was not allowed to raise permanent structure over the allotted site. The respondent violated the terms of allotment, therefore, appellant filed petition under Section 4 of the Act and the respondent was ordered to be evicted by Collector, Una vide order dated 9.7.1985. The 3 respondent aggrieved by that order filed appeal before the Divisional Commissioner, Dharamshala which was dismissed. The respondent assailed the Divisional Commissioner order and order dated 9.7.1985 of the Collector in Civil Writ Petition No. 116 of 1986 which was dismissed by this Court. In these circumstances, the suit is barred and the Civil Court has no jurisdiction to try the suit. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the plaintiff is a licencee of the land under- neath the suit property and has raised permanent structure after spending huge amount of Rs.55,000/- approximately, as alleged? …OPP. 2. If issue No.1 is proved, whether the plaintiff is entitled to the relief of injunction prayed for? …OPP. 3. Whether the suit is not maintainable in present form?..OPD. 4. Whether the plaintiff is estopped by his act and conduct to file this suit? .. ..OPD 5. Whether the suit is barred by principle of resjudicata? .OPD. 6. Whether the plaintiff is in unauthorized possession of the suit property, as alleged, if so, its effect? .OPD. 7. Relief. The issues No.1 to 4 were answered in negative and issue No.5 was not pressed and issue No.6 was answered in affirmative and the suit was dismissed by the learned Sub Judge, Una on 4.2.1994. The learned District Judge accepted the appeal, set-aside the judgment, decree dated 4.2.1994 and decreed the suit of the respondent as noticed above, hence this appeal which has been admitted on the following substantial questions of law:- 1. Whether the notice Ex.P-6 relates only to Kh. No. 127 and it does not mention about Kh. No.128 and the notice is vague as has been held by the learned first appellate court in para No. 27 of the impugned judgment? 4 2. Whether the land owned by the Notified Area Committee does not fall within the purview of Section 2 (e) and the other provisions of H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971, as has been held by the learned first appellate court in para 31 of the impugned judgment? 3. Whether the construction of double storeyed building by the plaintiff over the land, which was allotted only for the purpose of Tea Stall does not violate the conditions of the allotment? 4. Whether the condition of allotment ‘that Shri Bhagat Ram shall vacate the possession when required to do so by the NAC’ is not sufficient to get the land vacated? 5. Whether the learned District Judge has misread the evidence which goes to the root of the case? 5. I have heard Mr. R.K.Sharma, Advocate, learned counsel for the appellant and Mr. Ramakant Sharma, Advocate, learned counsel for the respondent and have also gone through the record. On behalf of the appellant, it has been submitted that the proceedings against the respondent were taken under Section 4 of the Act, he was ordered to be evicted by the Collector, his appeal filed before the Divisional Commissioner against the order of the Collector was dismissed. Thereupon, the respondent filed writ petition in this court which was also dismissed. It has been contended that in view of history of litigation, the suit is not maintainable. In the plaint itself, it has been pleaded that eviction proceedings were started against the respondent and the case was fixed on 10.2.1989. But in the meantime, the suit was filed by the respondent on 6.2.1989. There is no averment in the plaint that suit land is not a public premises under the Act and proceeding against the respondent under the Act is without jurisdiction. The respondent could take all pleas available to him in law before the Collector instead of filing a suit which is not maintainable under Section 15 of the Act which bars the jurisdiction of Civil Court to entertain any suit or proceeding in respect of 5 the eviction of any person, who is in unauthorized occupation of any public premises. 6. The learned counsel for the respondent has supported the impugned judgment and has submitted that the learned District Judge has rightly held that the suit land is not a public premises. He has, however, submitted that in case this Court is inclined to accept the plea of the appellant, in that case the respondent is ready to purchase the suit land on the market price. The learned counsel for the respondent has further submitted that the respondent is an ex-serviceman and is supporting his family by running tea stall on the allotted land. He has no other source of income. The learned counsel for the appellant in response to last submission of the learned counsel for the respondent has submitted that he can only forward the request of respondent to appellant to the effect that if a request is made by the respondent, then such request be considered in accordance with law with a humane touch. Substantial questions of law No.2 and 5: 7. The substantial questions of law No.2 and 5 are inter- connected, therefore, these are being taken up together for disposal. The respondent in the plaint has submitted that initially land comprised in khasra No. 127 was allotted to him but lateron it was found that this land had already been allotted to some other person, therefore, the suit land was allotted to him and according to respondent the land which was allotted to him is comprised in Khasra No.128. The learned counsel for the respondent has referred Ex.P-6 notice dated 26.7.1988 issued on behalf of the appellant by the advocate of the appellant and submitted that as per Ex.P-6, the land comprised in khasra No.127 was allotted to respondent but he had allegedly raised unauthorized construction on khasra No.128 without the consent of the appellant. He has submitted that in light of this stand of the appellant, respondent cannot be evicted from the suit land without following due 6 process of law. The respondent in CWP No. 116 of 1986 had prayed for quashing of Annexure P-6 order dated 9.7.1985 passed by the Collector, Una District in Case No. 6 of 1984 and Annexure P-8 order dated 6.2.1986 passed by the Divisional Commissioner, Kangra Division in Appeal No. 21 of 1985. The precise case of the respondent in CWP No.116 of 1986 was that the petitioner had been granted land measuring 3 Marlas on Khasra No. 128 and not on Khasra No. 127, the orders deserve to be quashed as the proceedings are in respect of Khasra No. 127 only. In C.W.P. No. 116 of 1986, a Division Bench of this Court on 26.5.1986 had passed the following order:- “At the oral request of Mr. K.D.Sood, he is permitted to withdraw his appearance for the petitioner. Mr. H.M. Sharma has since filed the power of attorney on behalf of the petitioner and he is ready to go on with the matter. One of the disputes raised in the present petition relates to the identity of the land in respect of which the eviction order has been made. Even if Sections 5 and 10 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, are read together, they do not prohibit a dispute of this nature being raised under Rule 5 in the event of the order of eviction being executed in accordance with law. The petitioner is at liberty to raise such a dispute at that stage and no intervention is, therefore, called for at the present stage. Rejected.” In light of above order dated 26.5.1986, the dispute could be determined under Rule 5 in the event of the order of eviction executed in accordance with law. 8. In so far as the question that suit land is a public premises or not, the learned District Judge has reproduced the definition of public premises as defined in Section 2 (e) of the Act and has recorded a finding that suit land is not covered by definition of public premises. Section 2 (e) is in two parts. The part first of Section 2(e) refers to the premises of State 7 Government and second part refers to the premises of others such as Municipal Corporation, Committee, Notified Area Committee, Panchayat Samiti, Panchayat, Improvement Trust etc. The clause (a) of Section 3 of the Act, provides that a person shall be deemed to be in unauthorized occupation of any public premises where he has whether before or after the commencement of the Act entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant. The clause (b) of Section 3 of the Act further provides that a person shall be deemed to be in unauthorized occupation of any public premises where he, being an allottee, lessee or grantee, has by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises. The sub clause (ii) of clause (c) of Section 3 also provides that a person shall be deemed to be in unauthorized occupation of any public premises where any person authorized to occupy any public premises has, whether before or after the commencement of the Act otherwise acted in contravention of any of the terms, express or implied, under which he is authorized to occupy such public premises. 9. As per Ex. PW4/B resolution dated 16.9.1974 item No.5, vacant site near the previously allotted land belonging to the Committee was given to allottees to the extent of 3 Marlas each on the earlier terms and conditions. The Khasra No. 127 has been changed to 128 by overwriting in Ex.PW-4/B. The allottees referred in Ex.PW-4/B are Bhagat Ram and Ram Lal. In Ex. PW-4/B, specifically khasra number of the new allotment has not been mentioned. In Ex.PW-4/B, the allotted land has been described as site near the previously allotted and belonging to Committee. The earlier allotment was made to Bhagat Ram and Ram Lal vide Ex. PW-4/A on 25.2.1974 item No. 17. In Ex.P-6, it has been mentioned that respondent has unauthorisedly 8 raised construction on khasra No. 128. It is not the case of respondent that Khasra No. 127 or Khasra No. 128 are not owned by appellant. 10. The case of the respondent is that the land was allotted to him by the appellant, a Notified Area Committee. As per Ex.P-6, the respondent has raised construction on khasra No. 128. Ex.P-6 notice is for cancellation of allotment, but whether allotment has been rightly cancelled or not that is to be determined in the proceedings under the Act. The learned District Judge has misconstrued and mis-interpreted Section 2 (e) of the Act and his finding that the suit land is not public premises under the Act, is wrong and is liable to be set-aside. It is held that the suit land is public premises under the Act, the substantial questions of law No. 2 and 5 are decided in favour of the appellant and against the respondent. Substantial question of law No.1: 11. The respondent in the plaint has projected the case that earlier land comprised in khasra No.127 was allotted to him and lateron land comprised in khasra No.128 was allotted to him and on that land, he had raised construction. The notice Ex. P-3 under Section 4 of the Act is with respect to land shown in schedule of notice Ex.P-3 wherein khasra No.128 has been specifically mentioned. Therefore, it cannot be said that even as per respondent he was not called upon to show cause with respect to khasra No. 128 by the Collector under the Act. As noticed above, vide Ex.PW4/B, the allotment of land was made in favour of the respondent near to the previous allotment without specifically mentioning khasra number of new allotment. The notice Ex.P-6 was issued to respondent in view of the stand of the respondent that construction was raised by him on khasra No.128. In notice Ex.P-6 khasra No.128 has been mentioned and, therefore, it cannot be said that notice Ex.P-6 is vague. The substantial question of law No.1 is decided in favour of the appellant. 9 Substantial questions of law No. 3 and 4: 12. Section 10 of the Act provides for finality of order with the stipulation that every order made by the Collector or commissioner under the Act shall be final and shall not be called in question in any suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Section 15 of the Act bars the jurisdiction of Civil Court to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises. In light of Section 10 and Section 15 of the Act, Civil Court has no jurisdiction in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act or in respect of the eviction of any person who is in unauthorized occupation of any public premises. The notice Ex.P-3 was issued by the Collector to the respondent and points raised in substantial questions of law No. 3 and 4 could be determined in the proceedings initiated on the basis of notice Ex.P-3 and not in civil suit filed by the respondent. The substantial questions of law No. 3 and 4 are accordingly decided in favour of the appellant and against the respondent. 13. The learned District Judge has not applied the law properly in the facts and circumstances of the case, therefore, in light of above discussion the impugned judgment, decree are liable to be set-aside. 14. No other point was urged. 15. The result of the above discussion, the appeal is allowed and the judgment, decree dated 8.3.1999 passed by the learned District Judge, Una in Civil Appeal No. 24 of 1994 are set-aside and the suit of the respondent is dismissed. However, it is made clear that despite the dismissal of the suit if respondent approaches the appellant for regularization of his allotment on the suit land on payment of market price, then appellant is at liberty to take decision in accordance with law and the dismissal of the suit 10 shall not come in the way of appellant for regularization of allotment of respondent on market price, if otherwise permissible in law. No costs. ( Kuldip Singh ) Judge. March 31, 2009. (GR)