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2016 DIGILAW 2469 (HP)

Prem Prakash Gupta v. State of HP

2016-11-23

MANSOOR AHMAD MIR, SANDEEP SHARMA

body2016
Mansoor Ahmad Mir, J. By the medium of this writ petition, the petitioner mainly has sought the following reliefs, on the grounds taken therein. “(i) A writ of Certiorari or direction in the nature of writ of certiorari may kindly be issued quashing/setting aside order dated 17.11.2015 (Annexure P-32) passed by respondent No. 3 in Case No. 212/2014 and order dated 5.5.2011 (Annexure P-28) passed by respondent No.4 in Case no. 04/2003-04. (ii) A writ of Mandamus or direction in the nature of Writ of Mandamus may kindly be issued to the respondents directing the respondents to drop the proceedings of eviction initiated against the petitioner.” 2. The petitioner is in third round of litigation before this Court by the medium of this petition for the reasons to be recorded hereinafter. 3. It appears that a lease was granted on 12.11.1965 in favour of petitioner-M/s International Angora Breeding Farm (Memmingen) Bombay India vide Annexure P-1 for 100 acres of land near Mohal, District Kullu, H.P. by the then Governor of Punjab. The lease was for a period of 30 years, commencing from the date, the lessee executed the agreement or the possession of the land was handed over to him which ever was earlier. The State/respondents in the year 1965, have handed over only 57 acres of land to the petitioner, vide Annexure P2. 4. It is stated that the petitioner had approached the respondents for renewal of the lease and vide communication dated 21.4.1997, it was decided to renew the lease only for 31 bighas 5 biswas of land vide Annexure P13, for a period of 20 years w.e.f. 18.11.1995 to 17.11.2015. The petitioner, feeling dissatisfied again approached the respondents for renewal of the lease and vide communication from The Divisional Forest Officer, Kullu dated 10.9.1998, Annexure P16, it was decided to renew the lease only for ten bighas against the proposal of 31.05 bighas, in favour of the petitioner. Thereafter vide Annexure P19 dated 12.11.2002; the renewal of lease was recommended only for six biswas in favour of the petitioner. However, the petitioner failed to get the lease renewed despite having given sufficient time. 5. Thereafter vide Annexure P19 dated 12.11.2002; the renewal of lease was recommended only for six biswas in favour of the petitioner. However, the petitioner failed to get the lease renewed despite having given sufficient time. 5. Vide Annexure P22, notice under sub- Section (i) of Section 4 of the H.P. Public Premises and Land (Eviction and Rent Recovery), Act, 1971, for short “the Act”, was issued to the petitioner, proceedings were initiated and eviction order was made by the Collector Forest Division, Kullu, H.P., against him. 6. The petitioner filed appeal against the said eviction order before the Commissioner, Mandi, Division respondent No.3 herein, who vide order dated 30.6.2006, dismissed the appeal, constraining the petitioner to file CWP which was registered before this Court as CWP No. 656 of 2006. This Court, vide judgment dated 17.3.2009, quashed the order dated 30.6.2006, and disposed of the writ petition with liberty to the respondents to initiate fresh proceedings in terms of the provisions of the Act, has attained the finality. It is apt to reproduce the said judgment herein. “With the consent of the parties, Annexure P.9, dated 30.11.1994 and Annexure P.11, dated 30.6.2006 are quashed and set aside. However, the liberty is reserved to the respondents to start fresh proceedings against the petitioner under the provision of Himachal Pradesh Public premises (Eviction of Unauthorized Occupants) Act, 1971, from the stage of issuance of notice by specifying the grounds as per Section 4 of the Act. With these observations made here-in-above, the writ petition is disposed of. No costs. Dasti Copy, on usual terms.” 7. Thereafter fresh proceedings were initiated against the petitioner and eviction order was again passed against him on 5.5.2011, by respondent No.4, Annexure P-28. The petitioner filed appeal before respondent No. 3, which met with the same fate, vide order dated 28.10.2013 Annexure P-30. 8. Feeling aggrieved, petitioner filed a writ petition before this Court being CWP No. 1810/2014 and this Court vide judgment and order dated 17.7.2014, Annexure P-30A, remanded the matter to the Divisional Commissioner, Mandi, with direction to the Commissioner to pass appropriate orders, as warranted under law, within four weeks from the date of the said judgment. It is apt to reproduce paras 7 and 8 of the said judgment herein. “7. It is apt to reproduce paras 7 and 8 of the said judgment herein. “7. In the given circumstances, the writ petition is allowed, the impugned order is set aside and case No. 193/2011 is remanded, which shall come up for consideration before the Divisional Commissioner, Mandi on 11th August, 2014. 8. The parties are directed to cause appearance before the Divisional Commissioner, Mandi, on 11th August, 2014. It is made clear that if the writ petitioner-appellant fails to appear on the said date, Divisional Commissioner, Mandi shall be at liberty to pass appropriate orders, as warranted under law and if the writ petitioner-appellant appears, the appeal be concluded within four weeks with effect from 11th August, 2014.” 9. The appellate Court, i.e. the Divisional Commissioner Mandi, was directed to hear the petitioner and petitioner was directed to remain present. It was also provided that in case, the petitioner fails to do so, the appellate Court shall be within its power to pass appropriate orders. 10. While going through the impugned order, it appears that the petitioner was present, was heard and thereafter Presiding Officer was transferred and his successor had taken over. Arguments were heard on 24.9.2015 and written arguments were also submitted. 11. The learned counsel for the petitioner frankly stated at the Bar that the learned counsel for the petitioner before the appellate Court had addressed the arguments but the same have not been appreciated and considered. His statement to this effect was also recorded vide order dated 10.11.2016 when arguments were heard in this petition. Thus; it is not the case of the petitioner that he was not heard. 12. The only grievance of the petitioner, as projected and argued, was that the facts, circumstances and arguments were not marshalled out and appreciated by the appellate Court. 13. While going through the order impugned, one comes to an inescapable conclusion that the appellate Court has discussed all the aspects. It is apt to reproduce second last and last paras at pages 149 and 150 of the said order herein. “I have heard the arguments put forth by both the parties. The record placed in file was perused minutely. Perusal of lower Court record it reveals that the land was leased out to the appellant for 30 years on 18.11.1965 and this term expired on 17.11.1995. “I have heard the arguments put forth by both the parties. The record placed in file was perused minutely. Perusal of lower Court record it reveals that the land was leased out to the appellant for 30 years on 18.11.1965 and this term expired on 17.11.1995. The appellant before lower Court as well as in this court has failed to produce any document which could show that the lease has been renewed. After the expiry of lease term on 17.11.1995, more than 17 years have elapsed and this period is more than sufficient for any party to get the lease renewed. At this belated stage, the averment with regard to making of application for renewal or any pendency thereof cannot be regarded since the appellant has taken more than 17 years for such action and he has not been successful to get the lease renewed. Since the renewal has not been made and on this score the status of appellant becomes that of an encroacher. The appellant also failed to provide any permission from the Govt. of India, department of Environment and Forest for the extension of the lease. As regards the plea taken by the appellant in the grounds of appeal that he has not been afforded opportunity to defend the case and also that no defence witnesses were allowed to be examined by the petitioner; perusal of lower court record reveals that appellant through his counsel has availed several opportunities and finally on 28.2.2011, his counsels stated without oath and closed the defense witnesses on behalf of respondent (now appellant). This makes the plea of not providing of opportunity, baseless. From the above discussions and keeping in view the guidelines laid down by the Hon’ble Supreme Court order dated 12.12.1996 in CWP No.202/1995, it is clear that the appellant is in an unauthorized possession of Public Premises since 18.11.1995 and the order of lower court warrants no interference. Therefore, the appeal is hereby dismissed being devoid of any substance and the order dated 5.5.2011 passed by the trial Court is hereby upheld. A copy of this order be sent to the lower court while returning its record. Case file of this court be consigned to the Record Room after due completion. ” 14. Therefore, the appeal is hereby dismissed being devoid of any substance and the order dated 5.5.2011 passed by the trial Court is hereby upheld. A copy of this order be sent to the lower court while returning its record. Case file of this court be consigned to the Record Room after due completion. ” 14. The appellate Court has also discussed the guidelines rendered by the apex Court in CWP No.202/1995, decided on 12.12.1996 and determined the issue that the petitioner was un-authorizidely in possession of the premises. 15. It is also apposite to reproduce Section 2 (g) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, herein. “2(g) "unauthorised occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.” 16. In view of the above, the lease had expired, was not renewed. Thus, the case of the petitioner falls within the definition of Section 2 (g) of the aforesaid Act, referred to hereinabove. All the authorities below have followed the mechanism contained in the Act, requires no interference. 17. The writ Court can interfere only where it is shown that the appellate Court has wrongly appreciated the facts and the evidence and the judgment/order is illegal. While going through the impugned order, it appears that the appellate Court has thrashed out all facts and it is well reasoned and legal one, cannot be said to be erroneous, perverse or misuse of powers, in any way. 18. The Apex Court in Bhuvnesh Kumar Dwivedi versus M/s Hindalco Industries Ltd., reported in 2014 AIR SCW 3157, has held that question of fact cannot be interfered with by the Writ Court unless the findings are perverse, erroneous and without application of mind. However, such findings can be questioned if it is shown that the Tribunal/Court has erroneously refused to admit admissible and material evidence or has erroneously admitted inadmissible evidence which has influenced the impugned findings. It is apt to reproduce paras 16, 17 and 18 of the judgment rendered by the Apex Court in Bhuvnesh Kumar Dwivedi's case (supra) herein: “16. …............ It is apt to reproduce paras 16, 17 and 18 of the judgment rendered by the Apex Court in Bhuvnesh Kumar Dwivedi's case (supra) herein: “16. …............ The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised..................... 17. The judgments mentioned above can be read with the judgment of this court in Harjinder Singh’s case ( AIR 2010 SC 1116 ) (supra), the relevant paragraph of which reads as under: “21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that: “10. … The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.”(State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923 p.928, para 10.) 18. More than 41 years ago, Gajendragadkar, J. opined that: “10. … The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.”(State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923 p.928, para 10.) 18. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant.” [Emphasis added] 19. Our this view is also fortified by the judgment rendered by the Apex Court in Iswarlal Mohanlal Thakkar versus Paschim Gujarat Vij Company Ltd. & Anr., reported in 2014 AIR SCW 3298. It is apt to reproduce para 9 of the judgment herein: "9. We find the judgment and award of the labour court well-reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the labour court in its Award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or re-appreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the Award of the labour court was based on sound and cogent reasoning, which has served the ends of justice. It is relevant to mention that in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329 , with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that- "The power of interference under Art.227 is to be kept to a minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court." It was also held that- "High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Art. 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it." Thus it is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice. In the case of Harjinder Singh v. Punjab State Warehousing Corporation, (2010) 3 SCC 192 , this Court held that, "20. ..... In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation." 20. This Court in series of writ petitions and LPAs has laid down the similar principles of law. 21. It is apt to record herein that the petitioner used all weapons in his armoury, in order to defeat the eviction orders passed by the authorities and remained in unauthorized possession of the premises. This Court in series of writ petitions and LPAs has laid down the similar principles of law. 21. It is apt to record herein that the petitioner used all weapons in his armoury, in order to defeat the eviction orders passed by the authorities and remained in unauthorized possession of the premises. 22. Having said so, no interference is required. The writ petition is accordingly dismissed alongwith pending applications, if any.