IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA C. M P.M. O. No. 124 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 .No 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. In brief, the facts giving rise to the present petition are that in case No. 26 Misc. /88 instituted on 31.8.1988, respondent was ordered to be ejected from the land comprised in khasra Nos. 461/463,465/34/3/2 measuring 13 biswas situated in Chak Janoghat Tehsil Theog under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 vide a detailed order passed by the Sub Divisional Collector on 25.6.1997, which was assailed by the respondents in appeal before the Commissioner wherein the respondents represented 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - that he was in unauthorized possession of less than 13 biswas but considering the contention of the parties, in para 5 of his order passed in appeal [Mis No. 36 of 1998 dated 6.8.1998],it was observed and ordered as under:- “Having heard both counsel and examined the record I find that the Collector, Theog has duly considered all issues in a detailed and comprehensive order. The order clearly shows that the appellant is in unauthorized possession, that there are no simultaneous proceedings under Section 163 of the H.P. Land Revenue Act and the H.P. Public Premises and Land (Eviction and Rent Recovery) Act against the appellant and that the Municipal Committee, Theog is well within its rights to seek the eviction of the appellant from the said land. I do not, therefore, see any reason to interfere with the order of eviction from the land unauthorizedly occupied by the appellant. However, in view of appellant’s contention that his unauthorized occupation is less than 13 biswas the order of the Collector, Theog Sub Division may be modified to the extent that when the eviction is carried out then the land actually in unauthorized possession of the appellant may be duly measured and recorded.” [emphasis mine] In compliance to the aforesaid orders, Collector called for the report of Tehsildar and respondent was found in possession of much more land than that of 13 biswas. In the meantime, Municipal Council, Theog filed the execution application qua khasra Nos. 461/463, 465/34/3/2 measuring 13 biswas regarding which the order of - 3 - ejectment passed by the Collector and upheld in appeal. The Sub Divisional Collector, after referring to the order of the Commissioner and on the report of the revenue field-staff, observed that respondent had encroached upon more land than 0.13 biswas surprisingly, the execution application was not held maintainable thus it was dismissed with the directions that fresh amended petition be filed after re-verification. What sort of re-verification was required is not known when the respondent was clearly held an unauthorized occupant of 0.13 biswas qua khasra Nos. 461/463,465/34/3/2 and was ordered to be evicted therefrom. The case presents a very sorry state of affairs whether it is instrumentality of the State or the Sub Divisional Collector. The petitioner Committee even did not bother to file the revenue papers of the land regarding which the execution was sought and the Collector Sub Divisional also conveniently devised a noble method to dismiss the petition, without affording any opportunity to the petitioners to place on record the revenue papers regarding which the eviction orders were passed. If the respondent was found to have encroached upon more area than 0.13 biswas, the petitioner could have filed the petition under Section 4 of the Act seeking eviction qua the land found to - 4 - have been in excess and in unauthorized occupation of the respondent. But, they did not discharge their statutory duty. In these circumstances, Sub Divisional Collector could not have ordered for filing the amended petition with respect to any other land, regarding which no proceedings under the Public Premises Act were initiated against the respondent. Therefore, for reasons above, the order dated 30.4.2002, dismissing the application for execution passed by the Sub Divisional Collector with a direction to file fresh petition is hereby set aside and the same is ordered to be restored to its original number. The petitioner, Municipal Council shall file the revenue record and the tatima of the land regarding which respondent was ordered to be evicted by the Sub Divisional Collector and the executing Court shall do the needful in accordance with law at the earliest. Parties are hereby directed to be present before the Sub Divisional Collector on 5.5.2009. Record of the courts below be returned forthwith. April 23, 2009 (Surinder Singh),J. (cm)