Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 290 (HP)

LILA DEVI v. STATE OF H. P.

2000-11-10

R.L.KHURANA

body2000
JUDGMENT R.L. KHURANA, J.—The plaintiff Smt. Lila Devi has filed the present suit for recovery of Rs. 8,50,000/- as damages as under: (i) Amount of damages on account of illegal demolition of her building; Rs. 1,00,000/- (ii) Amount of damages on account of depriving of her belongings (Furniture, utensils and ration etc.); Rs. 50,000/- (iii) Amount of damages on account of loss of business and deprivation of sources of income; Rs. 2,00,000/- (iv) Amount of damages on account of mental torture and harassment etc. Rs. 5,00,000/- Total: Rs. 8,50,000/- 2. Briefly stated, the case of the plaintiff as set out in the plaint is this. The plaintiff is the owner of the land comprising of Khasra No. 589 of village Kaithlighat, Mauza Katoli, Tehsil Kandaghat of District Solan. She had constructed a pucca building in the year 1990 on this land at the cost of more than rupees one lakh. She was running a tea stall and "Dhaba" alongwith her two sons, Pradeep and Inder Dev and each one of them was earning about Rs. 5,000/- per month. No objection was raised by any one during the course of construction of the building by the plaintiff in the above said land. One Shri M.D. Sharma, a retired Subedar, who has strained relations with the plaintiff and her family and who is an influential person, made a complaint to the Chief Minister and Minister for Public Works that the plaintiff had raised construction over the Government land belonging to Public Works Department. The Assistant Engineer on the basis of such complaint without ascertaining the correctness thereof, lodged a report against the plaintiff before the Collector Kandaghat for her ejectment. In the proceedings initiated against the plaintiff under the provisions of H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (for short, the Act) Naib Tehsildar, Kandaghat, carried out measurements at the spot on 4.5.1995 and submitted his report to the Collector on 9.5.1995. It is averred that measurements at the spot were not carried out correctly. The plaintiff was not explained or disclosed the details and result of such demarcation. Her land comprising of Khasra No. 589 was never measured nor any permanent points were fixed. Objections to the report were raised on behalf of the plaintiff. Her request for fresh demarcation by the Tehsildar was not acceded to. The plaintiff was not explained or disclosed the details and result of such demarcation. Her land comprising of Khasra No. 589 was never measured nor any permanent points were fixed. Objections to the report were raised on behalf of the plaintiff. Her request for fresh demarcation by the Tehsildar was not acceded to. The Collector on 7.8.1995 passed an order for the ejectment of the plaintiff by demolition of her building. The copy of the order was not supplied to the plaintiff till 31 8.1995. In pursuance of the wrong and illegal order dated 7.8.1995 the defendants 3 to 4 acting in a hasty and illegal manner demolished the building of the plaintiff wrongfully, thereby causing loss to the plaintiff. 3. The defendants No. 1 to 5, while resisting the suit, pleaded that a part of Khasra No. 589 measuring 10 biswas and presently denoted by Khasra No. 620/589, which was acquired by defendant No. 1 for construction of a road is owned by defendant No. 1. The plaintiff encroached upon a part of this land in 1992 by raising a "Dhara" type of construction therein. This encroached area is now denoted by Khasra No. 620/589/ 1. Accordingly, proceedings for ejectment were initiated against her and an order of ejectment was legally and validly passed against her on 7.8.1995 after giving her due opportunities under the law. It is further pleaded that during the work of construction by the plaintiff , she was served a notice dated 24.11.1992 asking her to stop the work till demarcation was carried out. However, the plaintiff continued with the work. It was further pleaded that the plaintiff was ejected from the encroached area in pursuance of the ejectment order and that no damage or loss was caused to or suffered by the plaintiff. 4. On the pleadings of the parties, following issues were framed on 1.8.1997:— 1. Whether the building of the plaintiff has been illegally demolished by the defendant, as alleged? OPP 2. If issue No. 1 is decided in the affirmative, whether the plaintiff is entitled to recover the amount claimed, as alleged? OPP 3. Whether the plaintiff has no cause of action? OPD 4. Relief. 5. I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under : Issues No. 1 and 3. 6. OPP 3. Whether the plaintiff has no cause of action? OPD 4. Relief. 5. I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under : Issues No. 1 and 3. 6. Both these issues are being taken up and discussed together as they are interlinked and interconnected. 7. The plaintiff in para 1 of her plaint claims herself to be the owner of the whole of the land comprising of Khasra No. 589. She further claims in para 2 of her plaint to have constructed a new pucca building in such land at the cost of more than rupees one lakh. 8. Ex. PA is the copy of jamabandi for the year 1960-61, wherein land measuring 1 bigha 7 biswas comprising of Khasra No. 589 is recorded under the ownership of one Smt. Parvati widow of Sobha Ram and in possession of one Smt. Dasodhan widow of Sita Ram without payment of any rent and with the consent of the owner. 9. There is no denying that a part of the land comprising of Khasra No. 589 was acquired by defendant No. 1 for widening of the National Highway. Upon such acquisition, Khasra No. 589 came to be bifurcated into two parts and allotted separate numbers, that is, Khasra No. 621/ 589 and 620/589. Jamabandi for the year 1980-81 (Ex. PB) records Khasra No. 621/589 measuring 17 biswas under the ownership of Smt. Parvati and in possession of Smt. Dasodhan as shown in Ex. PA. Khasra No. 620/589 measuring ten biswas is recorded under the ownership and possession of State-defendant No. 1 through its Public Works Department. The note appended in the remarks column in respect of Khasra No. 621/589 shows that Smt. Parvati owner had sold her land measuring 17 biswas to one Shri Maheshwar Dutt son of Ghanna Nand. The whole of the land measuring 17 biswas is recorded as "Ghasni" and no part of it is recorded to be under any building. 10. Again in the jamabandi for the year 1995-96 (Ex. PC), while land measuring 10 biswas comprising of Khasra No. 620/589 is recorded under the ownership and possession of defendant No. 1 as recorded in Ex. The whole of the land measuring 17 biswas is recorded as "Ghasni" and no part of it is recorded to be under any building. 10. Again in the jamabandi for the year 1995-96 (Ex. PC), while land measuring 10 biswas comprising of Khasra No. 620/589 is recorded under the ownership and possession of defendant No. 1 as recorded in Ex. PB, land measuring 17 biswas of Khasra No. 621/589 is recorded under the ownership of the abovenamed Maheshwar Dutt and in possession of the plaintiff with the consent of the owner, without payment of any rent. Similar are the entries in Ex. PX, jamabandi for the year 1990-91 pertaining to Khasra No. 621/589 measuring 17 biswas. 11. The evidence led by the plaintiff herself is contrary to her pleadings. It is not established on record that the plaintiff is the owner of the land comprising of Khasra No. 589. 12. The documentary evidence, referred to above, produced by the plaintiff herself shows that land measuring 10 biswas comprising of Khasra No. 620/589 belongs to the defendant No. 1. The case set up by the defendants is that the plaintiff in November 1992 had encroached upon a part of the land of Khasra No. 620/589 depicted by Khasra No. 620/ 589/1 and raised construction in the shape of a "Dhara" therein. Proceedings for her ejectment from such encroached area were initiated and an order of ejectment was passed on 7.8.1995 under the provisions of the Act and that she stands evicted from the encroached area in pursuance of the ejectment order. 13. In claiming the damages, the plaintiff has assailed the order of ejectment dated 7.8.1995 passed by the Collector under the Act to be illegal, null and void. 14. Section 15 of the Act bars the jurisdiction of the Civil Court, It reads : "No Civil Court shall have the jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of arrears of rent payable under sub-section (1) of Section 7 or the damages payable under sub-section (2) of that section or the costs awarded to the State Government, Corporate authority or a local authority as given in sub-clause (i) of clause (e) of Section 2, under sub-section (5) of Section 9 or of any portion of such rent, damages or costs." 15. Since the land comprising of Khasra No. 620/589 measuring 10 biswas belongs to the State, defendant No. 1, it falls within the definition of "Public Premises" under clause (e) of Section 2 of the Act. Therefore, proceedings under the Act could have been initiated against the plaintiff by the Collector, Kandaghat. 16. Ex. PE is the copy of the order dated 7.8.1995 passed by the Collector, Kandaghat, under Section 5 of the Act for the ejectment of the plaintiff from the land comprising of Khasra No. 620/589 and for the removal of building/structure raised by her therein. 17. Once the order dated 7.8.1995 is shown to have been passed under Section 5 of the Act, Section 15 of the Act would come into play and jurisdiction of the Civil Court to go into the legality or otherwise of such order would be barred. 18. It has been held by the Punjab & Haryana High Court in M/s. Bharat Petroleum Corporation Ltd. and another v. Union of India and others, AIR 1992 Punjab and Haryana 248, that Section 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (which provision is similar to the one contained in Section 15 of the Act) bars the jurisdiction of the Civil Court to entertain a suit or any proceeding in respect of eviction of any person, who is in unauthorised occupation of a public premises. 19. The Supreme Court in Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai and others, AIR 1969 SC 439, and in Dewaji v. Ganpatlal, AIR 1969 SC 560, has held that if the Legislature intends to oust the jurisdiction of the Civil Courts, it must say so expressly or by necessary implication. 20. In the present case, the Legislature has expressly ousted the jurisdiction of the Civil Courts by enacting Section 15 of the Act. 21. In Ashoka Marketing Ltd. and another v. Punjab National Bank and others, AIR 1991 SC 855, the Honble Supreme Court was faced with the question whether the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971, overrides the provisions of the Delhi Rent Control Act, 1958. 21. In Ashoka Marketing Ltd. and another v. Punjab National Bank and others, AIR 1991 SC 855, the Honble Supreme Court was faced with the question whether the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971, overrides the provisions of the Delhi Rent Control Act, 1958. It was held that the provisions of the Public Premises Act, to the extent they cover the premises falling within the ambit of the Delhi Rent Control Act, override the provisions of the Rent Act and a person in unauthorised occupation of public premises cannot invoke the protection of the Rent Control Act. It was further held that as regards the non-obstante clauses contained in Sections 14 and 22 and the provisions contained in Sections 50 and 54 of the Delhi Rent Control Act, it could be said that Parliament was aware of these provisions when it enacted the Public Premises Act containing a specific provision in Section 15 barring jurisdiction of all Courts (which would include the Rent Controller under the Rent Control Act). [Emphasis supplied] 22. Therefore, in view of Section 15 of the Act, this Court in the present suit cannot go into the legality or otherwise of the order Ex. PE. 23. There is no evidence to show that any part of the building of the plaintiff located in the land in her possession comprising of Khasra No. 621 /589 was demolished or damaged by the defendants while purporting to enforce the order Ex. PE or otherwise. In fact, the whole case of the plaintiff is based on the challenge as to the legality of the order Ex. PE. 24. On the basis of the evidence coming on the record, it is held that no part of the building of the plaintiff was illegally demolished by the defendants and as such the plaintiff has no cause of action. Both the issues are decided against the plaintiff and in favour of the defendants. Issue No. 2. 25. In view of the findings recorded under issues Nos. 1 and 3 above, the plaintiff is not entitled to recover any amount by way of damages from the defendants. The issue is decided against the plaintiff. Relief. As a result, the present suit fails and the same is accordingly dismissed leaving the parties to bear their own costs. Petition dismissed.