Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1843 (HP)

Dalipa v. State of Himachal Pradesh

2018-10-23

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. 1. Instant petition filed under Article 227 of the Constitution of India, is directed against the order, dated 5.8.2016, passed by the Divisional Commissioner, Mandi Division, District Mandi, Himachal Pradesh, in case No. 355 of 2014, affirming the order dated 7.8.2013, passed by the Collector-cum-DFO Jogindernagar in case No. 02/2013-14 under Section 9 of the H.P. Public Premises and Land(Eviction and Rent Recovery) Act, 1971, whereby application for eviction having been filed by the State, came to be allowed. 2. Facts, as emerge from the record are that Patwari Halqua of Muhal Kothuwan submitted report through field Kanungo concerned to the Tehsildar, Sandhol stating therein that petitioner Dalipa has encroached upon the Government land comprised in Khasra No. 6640/5130/1 area measuring 00-00-70 hectare, situated in Muhal Kothuwan, Tehsil Sandhol, District Mandi, H.P. Since, land alleged to have been encroached by the petitioner was stated to be Forest land, Tehsildar Sandhol forwarded the case to Forest Department, who in turn filed challan before the Collector-cum-Divisional Forest Office i.e. Collector-cum-DFO Jogindernagar (hereinafter to referred as the 'Collector'). The Collector issued show cause notice under Section 4(1) of H.P. Public Premises and Land(Eviction and Rent Recovery) Act, to the present petitioner, who in turn filed reply to the show cause notice personally, however, fact remains that Collector passed the eviction order against the present petitioner vide order dated 7.8.2013 without taking note of reply having been filed on behalf of the present petitioner and ordered for his eviction vide aforesaid order. 3. Being aggrieved and dissatisfied with eviction order, dated 7.8.2013, present petitioner preferred an appeal under Section 9 of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, in the Court of learned Divisional Commissioner, Mandi Division, Mandi, H.P., which came to be registered as case No. 355/2014, however fact remains that same was also dismissed being devoid of merits. In the aforesaid background, present petitioner has approached this Court in the instant proceedings with a prayer to set-aside the impugned order dated 7.8.2013, passed by the Collector-cum-DFO Jogindernagar and order dated 5.8.2016, passed by the Divisional Commissioner, Mandi Division, Mandi, H.P. 4. In the aforesaid background, present petitioner has approached this Court in the instant proceedings with a prayer to set-aside the impugned order dated 7.8.2013, passed by the Collector-cum-DFO Jogindernagar and order dated 5.8.2016, passed by the Divisional Commissioner, Mandi Division, Mandi, H.P. 4. Having heard learned counsel for the parties and perused the material available on record, it is not in dispute before this Court that present petitioner had filed reply to show cause notice personally, but same was not considered by the Collector because Advocate representing petitioner before him had not filed his Power of Attorney. The Collector in its order dated 7.8.2013 has categorically recorded that "respondent filed his reply personally to show cause notice, which was not considered as filed through advocate without any authorization(Vakalatnama)", which itself suggests that reply to show cause notice was actually presented/filed by the petitioner in person before the aforesaid authority, who refused to consider the same on the ground that same cannot be considered since lawyer representing petitioner has not filed Power of Attorney. 5. Once, reply having been filed by the petitioner to show cause notice was taken on record, Court concerned was under obligation to consider the same while adjudicating the dispute. But interestingly, in the case at hand reply having been filed by the petitioner was not considered on the very flimsy grounds. Though, very language used by the Collector itself suggests that reply was presented by the petitioner himself, but even for the sake of argument it is presumed that same was presented through some lawyer, same could not be refused to be read on the ground that lawyer had no authorization to represent the petitioner, especially when reply was taken on record. 6. Similarly, learned Divisional Commissioner while deciding the appeal having been filed by the present petitioner, has categorically recorded in its order, dated 5.08.2016 that careful perusal of the record suggests that reply filed by the appellant was not considered by the court below because Advocate failed to file Power of Attorney/Vakalatnama by which he was authorized by his client to file reply on his behalf, which finding returned by the Divisional Commissioner is erroneous on the face of it and cannot be allowed to sustain. 7. 7. As has been observed hereinabove, once reply was taken on record, same ought to have been read and considered by the authorities while deciding show cause notice or appeal and same could not be ignored solely on the ground that advocate presenting the same had no authorization. Though, this Court having carefully perused the language used by the Collector has reason to presume that reply to show cause notice was presented by petitioner himself because word "personally" has been specifically used, which clearly suggests that reply in person was filed and as such, courts below ought to have considered the same while considering/deciding the show cause notice or appeal having been filed by the present petitioner. Moreover, it is well settled by now that litigant cannot be allowed to suffer for fault/mistake, if any, committed by his/her lawyer. 8. Consequently, in view of the above, this Court has no hesitation to conclude that both the authorities have acted in hot haste manner while deciding/adjudicating the controversy at hand and as such, impugned order dated 7.8.2013, passed by the Collector-cum-DFO Jogindernagar and order dated 5.8.2016 passed by the Divisional Commissioner, Mandi Division, Mandi, H.P., are quashed and set-aside and the matter is remanded back to Collector-cum-DFO Jogindernagar to decide the same afresh, who while deciding the matter afresh shall take into consideration reply having been filed by the present petitioner. 9. Needless to say, Collector-cum-DFO Jogindernagar while deciding the same afresh shall afford adequate opportunity of hearing to both the parties. 10. Learned counsel representing the parties undertake to cause presence of respective parties before the Collector-cum-DFO Jogindernagar on 20.11.2018, to enable him to proceed with the matter in terms of the instant order passed by this Court. 11. Mr. Sanjeev Sood, learned Additional Advocate General, undertakes to apprise the authority below with regard to passing of the instant order. Pending applications, if any, also stands disposed of.