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2000 DIGILAW 180 (HP)

PARKASH CHAND v. STATE OF HIMACHAL PRADESH

2000-07-18

C.K.THAKKER

body2000
JUDGMENT C.K. Thakker, CJ.: Admitted Mr. Sanjay Karol, learned Advocate General with Mr. M.L. Chauhan, learned Deputy Advocate General appears and waives service of notice of admission on behalf of the respondents. In the facts and circumstances of the case, the matter is taken up for final hearing. 2. This petition is filed against an order passed by the Collector on December 27,1999, in case No.297 of 1999 under the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, (hereinafter referred to as the Act), and confirmed by the Commissioner, Shimla Division in Misc. Appeal No. 4/2000, on March 31,2000. 3. The case of the authorities was that the petitioner made encroachment on Government land, khasraNo.722/2, admeasuring 0-20-78 Hectre and inspite of notice, he did not vacate the land. Proceedings, hence, were initiated against the petitioner and an order of ejectment was passed by the Collector. The said order was confirmed by the Commissioner. Being aggrieved by the above orders, the present writ petition is filed by the petitioner. 4. Several contentions were advanced at the time of hearing of the petition by the learned counsel. It is, however, not necessary for us to enter into larger question since on one ground, the petition deserves to be allowed. 5. It appears that on November 30, 1999, the case was called out. The petitioner was present. He filed his written reply. On that day, the Collector passed the following order: "30.11.1999 Case called. Encroacher is present. Encroacher has filed written reply upon which order for ejectment may be issue. Case be fixed for pronouncing judgment for 29.12.99. (It appears that it was signed on December 1, 1999). On December 27, 1999, however, an order of ejectment was passed. This is clear from the following endorsement: "27.12.99 Ejectment order passed. Sd/- 27/12" 6. On January 31, 2000, execution order was also passed. The said order was confirmed by the Commissioner. 7. In the facts and circumstances of the case, in our opinion, it cannot be said that the procedure required to be followed under Section 5 of the Act had been followed. The said section provides an opportunity of hearing to the petitioner before passing an order of eviction. The said order was confirmed by the Commissioner. 7. In the facts and circumstances of the case, in our opinion, it cannot be said that the procedure required to be followed under Section 5 of the Act had been followed. The said section provides an opportunity of hearing to the petitioner before passing an order of eviction. Since the action has not been taken in accordance with law, in our opinion, the order passed by the first Authority as also confirmed by the Appellate Authority requires to be set aside. 8. It, however, further appears that though ejectment order was passed by the Collector and confirmed by the Appellate Authority, no order regarding payment of damages envisaged by Section 7 of the Act has been made. In our opinion, the authorities under the Act will have to take appropriate action and pass an order in accordance with law in the light of the provisions of Section 7 of the Act as also the law Had down by the Supreme Court in Shangrila Food Products Limted and another v. Life Insurance Corporation of India and another, 1996(5) SCC 54. 9. It was, no doubt, contended by the learned counsel for the petitioner that no petition has been filed by the respondents against non-passing of an order of damages by the authorities and in a petition filed by the petitioner, no such observation may be made. He also submitted that such observation may prejudicially affect the petitioner in the proceedings, as also when he may raise a plea of adverse possession in a Civil Court for getting declaration and appropriate relief. 10. In our opinion, so far as the jurisdiction of Civil Court is concerned, it is independent of the provisions of the Act. Regarding non-filing of petition by the other side, the observatioins made by the Apex Court in Shangrila Food Products Limited are amply clear. In that case, it has been laid down that while exercising equitable jurisdiction under Article 226/227 of the Constitution of India, a High Court can consider equity. The petition is, accordingly, disposed of, with the above observations. 11. This order will neither preclude the collector from passing an appropriate order in accordance with law nor the petitioner from getting any relief from appropriate Court or Authority. CMP NO. The petition is, accordingly, disposed of, with the above observations. 11. This order will neither preclude the collector from passing an appropriate order in accordance with law nor the petitioner from getting any relief from appropriate Court or Authority. CMP NO. 645 of 2000 Interim order dated May 31, 2000, stands vacated as the application has become in fructuous.