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2024 DIGILAW 45 (HP)

Prithvi Raj Khitta v. State of H. P.

2024-01-08

AJAY MOHAN GOEL

body2024
JUDGMENT : Ajay Mohan Goel, J. Notice. Mr. Pushpinder Jaswal, learned Additional Advocate General, accepts of the respondents. 2. By way of this petition, filed under Article 226 of the Constitution of India, the petitioner has, inter alia, prayed for the following relief :- “i) It is therefore most respectfully prayed that the Hon’ble Court may be pleased to issue writ of certiorari thereby quashing the order dated 27.04.2022 passed by Sub Divisional Collector-cum-Collector in Case no.54/2021 titled State vs. Surat Ram (Deceased) Through LR Prithvi Raj and order dated 11.12.2023 passed by Divisional Commissioner in appeal no.125/2022 titled Prithvi Raj Khitta Vs. State of H.P. and further quash the eviction proceedings pending before the learned Collector, Rohru in case No.54/2021 titled State vs. Surat Ram (Deceased) Through LR. Prithvi Raj.” 3. Brief facts necessary for the adjudication of the present petition are that the proceedings have been initiated against the petitioner under Section 4 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (hereinafter to be referred as ‘1971 Act’). A copy of the petition filed against the petitioner under the provisions of the 1971 Act is appended with the petition as Annexure P3. Reply thereto is appended with the petition as Annexure P4). The case of the petitioner is that the proceedings which have been initiated against the petitioner under the provisions of the 1971 Act are per se void ab initio, for the reason that the complaint filed against him by the Executive Engineer, H.P.P.W.D. Sub-Division, Rohru, District Shimla, H.P., alleging that the petitioner has encroached upon Government land and constructed building thereupon, whereas in terms of Section 8 of the 1971 Act read along with Notification issued by the Law Department of the Government of Himachal Pradesh, dated 25.01.1971 (Annexure P7, such proceedings could have been filed against the petitioner by an officer of the rank of Superintending Engineer only. The petitioner had filed an application for dismissal of the complaint on the said ground before the Collector. This application was dismissed by the Collector vide order dated 27.04.2022. Feeling aggrieved, the petitioner filed an appeal which also stands dismissed by the Appellate Authority vide order dated 11.12.2023 (Annexure P2). Hence, the petition. 4. The petitioner had filed an application for dismissal of the complaint on the said ground before the Collector. This application was dismissed by the Collector vide order dated 27.04.2022. Feeling aggrieved, the petitioner filed an appeal which also stands dismissed by the Appellate Authority vide order dated 11.12.2023 (Annexure P2). Hence, the petition. 4. Learned counsel for the petitioner has submitted that the orders passed by both the Authorities are per se bad and not sustainable in the eyes of law as the Authorities have erred in not appreciating that the proceedings initiated against the petitioner were not maintainable. By drawing the attention of the Court to Annexure P7, learned counsel has submitted that in terms thereof only a Superintending Engineer can file a case on behalf of the State. Further by referring to Section 8 of the 1971 of the Act, learned counsel submitted that as the Collector enjoys the same powers as are vested in a Civil Court under the Code of Civil Procedure, therefore, Notification Annexure P7 applies to the proceedings. On this count he has submitted that the petition be allowed by setting aside the impugned orders. 5. Learned Additional Advocate General on the other hand has submitted that the petition is completely misconceived, for the reason that the orders passed by the Authorities below which stand assailed by way of this petition, are valid orders and the contention of the petitioner that the proceedings initiated against him under the 1971 Act were not maintainable, is totally misconceived. He submitted that in terms of Section 4 of the 1971 Act, if the Collector is of the opinion that any person or persons are in unauthorized occupation of the public premises situated within his jurisdiction and they have to be evicted then the Collector has to proceed in accordance with the provisions of the 1971 Act and there is no provision either in the Act or in the Rules framed thereunder that the complaint or application has to be filed by the Authority holding a particular rank. He further submitted that reliance placed on Section 8 of the Act by the petitioner is also completely misconceived as the same does not ifso facto makes the Court of a Collector a Civil Court as has been urged on behalf of the petitioner. He further submitted that reliance placed on Section 8 of the Act by the petitioner is also completely misconceived as the same does not ifso facto makes the Court of a Collector a Civil Court as has been urged on behalf of the petitioner. Learned Additional Advocate General has submitted that Section 8 has to be read for the purpose for which the same is there in the statute and scope thereof cannot be enlarged. Accordingly, he prayed that the present petition being devoid of any merit be dismissed. 6. I have heard learned counsel for the parties and have carefully gone through the impugned orders as well as the documents appended with the petition. 7. The issue which this Court has to decide is as to whether the complaint that has been filed against the petitioner under the provisions of the 1971 Act, on which cognizance has been taken by the Collector, is maintainable having been filed by Executive Engineer, H.P.P.W.D. Sub-Division, Rohru? 8. The 1971 Act has been brought into force to provide for the eviction of unauthorized occupants from public premises and for certain incidental matters. The ‘Collector’ is defined in Section 2 (a) of the Act as to mean the Collector of the district, and includes any other officer of the State Government for performing the functions of the Collector under the Act. ‘Premises’ have been defined under Section 2 (d) of the Act and public premises have been defined under Section 2 (e) thereof. Section 3 of the Act defines as to when a person shall be in unauthorized occupation of the public premises and Sections 4 to 8 provide for the process that has to be undertaken for eviction of unauthorized occupancy. Section 9 provides for an appeal against the order of the Collector. 9. Section 4 of the Act reads as under: “4. Issue of notice to show cause against order of eviction. (1) If the Collector is of opinion that any persons are in unauthorised occupation of any public premises situate within his jurisdiction and that they should be evicted, the Collector shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (1) If the Collector is of opinion that any persons are in unauthorised occupation of any public premises situate within his jurisdiction and that they should be evicted, the Collector shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof. (3) The Collector shall cause the notice to be affixed on the outer door or some other conspicuous part, of the public premises, or of the estate in which the public premises are situate, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. (4) Where the Collector knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of subsection (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed.” 10. A careful perusal of this Section demonstrates that if the Collector is of the opinion that any person is in unauthorized occupation of the public premises within his jurisdiction and that he has to be evicted, then the Collector has to issue a notice in writing in the manner that is provided in the Act and the Rules, calling upon the person to show cause as to why he should not be evicted from the premises. 11. Now incidently, there is no provision either in the Act or in the Rule which restricts the filing of the complaint to the Collector in the case of public premises by a particular authorized officer of a particular rank in a particular department. 12. 11. Now incidently, there is no provision either in the Act or in the Rule which restricts the filing of the complaint to the Collector in the case of public premises by a particular authorized officer of a particular rank in a particular department. 12. It is not in dispute that the land which allegedly stands encroached upon by the petitioner is the land of the Public Works Department and the complaint has been filed by the concerned Executive Engineer within whose jurisdiction this land is situated. That being the case, the findings returned by the Authorities below that the proceedings have been correctly initiated by the Authorities are correct findings and they do not call for any interference. 13. The Notification dated 25.01.1971 appended with the petition as Annexure P7 reads as under: “No. LR107420/ 54In exercise of the powers vested in him under rules 1 and 2 of the Order XXVII of the Code of Civil Procedure, and all other powers enabling him in this behalf, the Governor, Himachal Pradesh is pleased to authorise all the Collectors of Districts in Himachal Pradesh, all Secretaries, Joint Secretaries Deputy Secretaries, Under Secretaries, Heads of Departments of Himachal Pradesh and also the Conservators of Forests and Superintending Engineers in Himachal Pradesh to act for the State of Himachal Pradesh, to sign and verify plaints and written statements in suits by or against the State of Himachal Pradesh and also to act for the State of Himachal Pradesh in respect of any judicial proceedings. This notification shall not effect any act already done on the basis of the previous notifications and all such acts done under previous notification shall be deemed to have been done under this notification.” 14. Thus what this Notification provides is that if a Civil Suit has to be instituted on behalf of the State Government or it has to be defended on behalf of the State Government then the plaint or the written statement as the case may be in a matter relating to the Public Works Department has to be signed by an officer of the rank of Superintending Engineer. But this ifso facto does not applies to other proceedings also like the one which might be initiated on behalf of the Public Woks Department under the Public Premises Act. 15. But this ifso facto does not applies to other proceedings also like the one which might be initiated on behalf of the Public Woks Department under the Public Premises Act. 15. Similarly, Section 8 of the 1971 Act provides that a Collector shall for the purpose of holding any inquiry under the Act has the same powers as are vested in a Civil Court under the Civil Procedure Code when trying a suit in respect of summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of document, any other matter which may be prescribed. So the circumstances in which a Collector can exercise the powers provided in the Code of Civil Procedure are well spelled out in this Section and otherwise also, the same ifso facto do not lead this Court to the conclusion that the proceedings which are conducted before the Collector are to be treated as akin to a Civil Suit and therefore, the complaint has to be treated akin to a plaint which can be signed only by a Superintending Engineer. 16. In fact a perusal of the order passed by the Authorities demonstrate that they have observed that the notification being relied upon by the petitioner was regarding suits by or against the State and regarding Judicial proceedings and the proceedings under the Public Premises Act could not be termed as legal suits or Judicial proceedings. 17. Therefore, as this Court does not finds any merit in the present proceedings and further as it does not finds any infirmity in the orders passed by the Authorities concerned, present petition being devoid of any merit is dismissed. However, it is clarified that the observations that have been made by this Court in this order are only for the adjudication thereof and they shall not have any bearing as far as adjudication of the complaint filed against the petitioner before the Authority on merit is concerned. Pending miscellaneous applications, if any, also stand disposed of.