Partly allowed

Shishpal v. State of Haryana & Ors.

Punjab & Haryana HC18 Jan 2012CWP/1515/2010

Case brief

AI extract

What is this about?

The Court quashed part of the Commissioner's order imposing penalty for unauthorized occupation of state land without following mandatory procedure under Section 7 and Rule 6 of the Haryana Public Premises Act, due to lack of proper notice and hearing.

What did the court decide?

Quashed the remand order to the extent of determining quantum of penalty; permitted petitioner to deposit damages at Rs.1500/- per acre.

Shishpal Vs State of Haryana & Ors. — Writ and Judicial Review | Punjab & Haryana HC (2012)

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CWP No.1515 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P. No. 1515 of 2010 Date of Decision: January 18, 2012

Shishpal

.... Petitioner

Versus

State of Haryana and others.

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...Respondents

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CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

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Present: Mr. Raj Mohan Singh, Advocate, for the petitioner.

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Mr. Sandeep S. Mann, Sr. DAG, Haryana, for the respondents.

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Paramjeet Singh, J.

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The instant writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for quashing of order dated 22.06.2007 (Annexure P/4) passed by respondent No.2 – Commissioner, Rohtak Division, Rohtak and further proceedings undertaken by respondent No.3 - Collector, Karnal, in pursuance of that, being illegal and against the spirit of order dated 23.03.1989 (Annexure P/1).

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Brief facts of the case are that in the year 1962, the State of Haryana acquired 88 kanals 4 marlas of land for setting up a brick kiln for alignment of Nardak Water Supply Canal, Karnal. Out of 88 kanals 4 marlas acquired land, the petitioner along with his father was owner of 56 kanals 16 marlas. In the year 1976, 45 kanals 18 marlas more land of the

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petitioner was acquired for the purpose of brick kiln for alignment of SYL Canal. The brick kiln was installed in that place. After the purpose was achieved, land measuring 48 kanals 18 marlas was returned to the petitioner and his family members. On the same analogy, the petitioner and his family members sought to receive back the land which was subject matter of 1962 acquisition. The prayer was not accepted. Ultimately, ejectment orders were passed against the petitioner.

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The State of Haryana filed ejectment application under Section 5 and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1973 for eviction of the petitioner from land measuring 88 kanals 4 marlas situated in Village Naraina, Tehsil Nilokheri, District Karnal. Since, the land was brick kiln and it was the property of the State Government, as a result of it, the eviction order was passed against the petitioner. After hearing the parties, the Collector vide order dated 23.03.1989 (Annexure P/1) passed the following order:-

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“ .... Therefore, there is no question of landlord or tenant between them, so it is clear that the respondent is in unauthorised possession of the land in dispute. Therefore, it is ordered to eject the respondent from the land in dispute, the detail of which is given in para no.1 above, measuring 88 kanal 4 marla situated in Village Naraina, Sub Tehsil Nilokheri, District Karnal. As the respondent is in unauthorized possession of the land in dispute, so it is ordered that the respondent should pay Rs.86,250/- as rent to the application (Irrigation Department) at the rate of Rs.1500/- per acre per year for the unauthorized use of the land, which starts from 30.4.1984 i.e. earlier three years from the date of filing the present application i.e. 30.4.1987, which

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CWP No.1515 of 2010

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comes to about 5 years. Order pronounced.”

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Thereafter, an appeal was filed by Smt. Har Piari against the order of the Collector dated 23.03.1989 before the Commissioner. The Commissioner passed order dated 18.07.1991 against Smt. Har Piari. Smt. Har Piari deposited Rs.10,000/- out of the total amount of Rs.19,316/-. In the meantime, Smt Har Piari died on 28.07.1993. Thereafter, another application under Sections 5 and 7 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (wrongly described in the application and elsewhere) was filed by the State Government on 17.03.2003 (Annexure P2). The said application was rejected by the Collector vide order dated 30.01.2006 (Annexure P/3). Aggrieved against the said order, the State of Haryana preferred an appeal before the Commissioner and the Commissioner vide order dated 22.06.2007 (Annexure P/4) remanded the case to the Collector with the direction that he would issue show cause notice to the present petitioner under Section 7 of the said Act and decide the quantum of penalty/charges accordingly. Hence, this writ petition.

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When the instant writ petition was listed for motion on 29.01.2010, this Court passed the following order:-

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“Counsel for the petitioner submits that he is ready to pay a penalty @ Rs.1500/- per acre as has been determined by the Collector vide order dated 23.03.1989.

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Notice of motion for 29.03.2010.

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Operation of Annexure P-4 shall remain stayed till further orders.”

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Learned counsel for the petitioner after seeking instructions

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from the petitioner, has stated that the petitioner has already delivered the possession to the State Government on 22.05.2006, therefore, the petitioner is limiting his prayer qua the imposition of penalty for use and occupation.

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I have heard learned counsel for the parties and perused the record.

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Learned counsel for the petitioner has contended that it is admitted that originally the land belonged to the petitioner and his family members and that had been acquired for the temporary purpose of setting up brick kiln for alignment of Nardak Water Supply Canal and SYL Canal. A part of land was already returned to the original owners by the State Government, however, the remaining part has been refused. It is also admitted that when the brick kiln was established, the deep pits had come into existence as the earth was removed for setting up a brick kiln as well as for making of the bricks.

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Learned counsel for the petitioner has further contended that the land remained abandoned, however, the petitioner by using his resources had made some parts of the land cultivable by investing huge amount with the hope that this land too will be returned to them. The possession of his mother was bona fide not unauthorised. Due to the alleged unauthorized possession of Bishambar Singh, father of the petitioner has been held to be liable to pay an amount of Rs.1,50,696/-, petitioner has been held to be liable to pay an amount of Rs.3,06,544/- and the Bishambar Singh and the petitioner jointly are liable to pay an amount of Rs.2,52,448/-, totalling Rs.7,09,688. This amount is alleged to have

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been calculated on the basis of Chakota rate prepared by the Tehsildar, Nelokheri.

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Learned counsel further contended that imposition of penalty should be declared as nullity and quashed because of non-compliance of Section 7(2) of the Act read with Rule 6 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Rules, 1973, as well as, the principles of natural justice. It is asserted that no notice or opportunity of hearing was given to the petitioner before imposing the penalty. The land was deep its and had never been given by the Government on Chakota.

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The learned State counsel has opposed the contention of the learned counsel for the petitioner saying that although there is some deficiency regarding the compliance of provisions, still the penalty should be upheld for unauthorized use and occupation of the State property.

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I have thoughtfully considered the respective submissions. Sections 4 and 5 of the Act lay down the procedure for passing an order of eviction against an unauthorised occupant of public premises. Section 4 envisages issuance of show cause notice by the Collector as a condition precedent to the passing of an order of eviction. Section 5 declares that after considering the cause, if any, shown by the person upon whom notice under Section 4 has been served and the evidence,which he may produce in support of his plea, and after giving him reasonable opportunity of being heard, the Collector may make an order of eviction. Sub-section (2) of Section 7 empowers the Collector to pass an order requiring the unauthorised occupant of the public premises to pay damages. Sub-section (3) of Section 7 lays down that “no order under sub-section (1) or sub-

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CWP No.1515 of 2010

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section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show within such time as may be specified in the notice, why such order should not be made, and his objections, if any, and any evidence he may produce in support of the same, have been considered by the Collector. Rule 6 of the Rules enumerates the factors which are required to be taken into consideration for assessing the damages. These are:-

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“(a) the purpose and the period for which the public premises were in unauthorised occupation;

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(b) the nature, size and standard of the accommodation available in such premises;

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(c) the rent that would have been realized if the premises had been let on rent for the period of unauthorised occupation to a private person;

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(d) any damage done to the premises during the period of unauthorised occupation;

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(e) any other matter relevant for the purpose of assessing the damages.”

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It is, thus, clear that the Act and the Rules do not provide for imposition of penalty on the unauthorised occupant of public premises but the Collector can, after following the procedure prescribed by Section 7(2) and (3) of the Act read with Rule 6 of the Rules may impose damages.

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A perusal of the record of the instant writ petition shows that before passing the order, the respondent No.3 issued notice and gave opportunity of hearing to the petitioner as required under Sections 4 and 5 of the Act. However, he neither made assessment of damages in accordance with the prescribed principles nor he gave notices and

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opportunity of hearing to the petitioner. It is, thus, clear that before passing an order of imposition of penalty, respondent did not comply with the mandatory provisions of Section 7 of the Act read with Rule 6 of the Rules and the basic rule of natural justice that no man can be condemned unheard has not been complied with in this case. In my opinion, this is sufficient to invalidate the impugned orders to the extent of penalty. However, the appellate order passed by the Commissioner is liable to be quashed because in the order it is said that the petitioner would be deemed to be ejected from the land in question in the proceedings under the Act since they have delivered possession on 22.05.2006. Once the order of eviction has been passed, notice was required to be taken at that stage. The later part of the order dated 22.06.2007 (Annexure P/4) vide which the Commissioner has remanded the case to the Collector for issuing show cause notice and to decide the quantum of penalty / charges is also not sustainable because this plea was never raised in the notice issued to the petitioner by the Collector. New case cannot be set up by the State in appeal. Otherwise also the land was acquired for brick kilns, a part of which has been returned to the petitioner's family and with that hope they made fit for cultivation at their own expenses as it earlier remained abondoned.

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The petitioner has admitted that he is ready and willing to pay damages as was ordered originally in the order dated 23.03.1989 at the rate of Rs. 1500/- per acre. This fact has also been mentioned in the order dated 29.01.2010 of this Court. State Government never gave it on lease as it was earlier unfit for cultivation being deep pits. So in the peculiar facts of

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this case, it would just and fair if the petitioner deposit the amount at the rate of Rs.1500/- per acre within six months from today. Possession has already been delivered to the State Government.

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For the reasons mentioned above, the writ petition is partly allowed. Later part of order dated 22.06.2007 (Annexure P/4) passed by the Commissioner to the extent of remanding the case to the Collector for determining quantum of penalty/charges with liberty to the Collector to pass fresh order in accordance with law, is quashed.

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January 18, 2012 ( Paramjeet Singh ) vkd Judge

Shishpal v. State of Haryana & Ors.

Case brief

What is this about?

What did the court decide?

Shishpal v. State of Haryana & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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