Smt. Roop Kaur and others vs State of H.P. and others

Rajiv Sharma, J.—This Letter Patent Appeal is directed against the judgment, dated 30.10.2007, rendered by the learned Single Judge in CWP No. 151 of 2003. ''Key facts'' necessary for the adjudication of this Letters Patent Appeal are that the non-applicant (respondent No. 3) filed a petition u/s 4 of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (hereinafter referred to as ''the Act'' for the sake of convenience) for ejectment of the appellants-petitioners (hereinafter referred to as ''the appellants'' for the sake of convenience) from the premises in question and also u/s 7 for recovery of rent and the penalty vide Case No. 73/13-A of 1998 on 23.03.1998. The appellants filed reply to the same on 08.10.1998. The Collector (SDM), Solan, passed the orders on 26.03.2001 by holding that the tenancy of the appellant was rightly determined and they were in unauthorized occupation of the disputed premises w.e.f. 01.11.1997 and they were also held liable to pay damages ten times of usual rent at the rate of Rs. 500/- and Rs. 250/- per month w.e.f. 01.11.1997 till the date of vacation. The appellants were directed to hand over the possession of the premises within one month from the date of the passing of order, failing which, the possession could be taken over by using force. The appellants preferred an appeal bearing Misc. Appeal No. 37/2001 against the order, dated 26.03.2001, passed by the Collector, Sub-Division, Solan before the Commissioner (Revenue), Himachal Pradesh, Shimla. He dismissed the same on 22.01.2003. The appellants approached this Court by way of CWP No. 151 of 2003. The same was dismissed by this Court on 30.10.2007. Hence, this Letter Patent Appeal against the judgment, dated 30.10.2007.

Mr. B.S. Chauhan, learned counsel for the appellants has vehemently argued that the appellants have not been issued notice in conformity with Sections 4 and 7 of the Act. He also submitted that appellants No. 2 to 5 were minors and appellant Smt. Roop Kaur was not issued any notice.

Mr. Romesh Verma, learned Additional Advocate General has supported the orders passed by the authorities below.

Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued that the appellants were issued notices under Sections 4 and 7 by the Collector, Solan Sub Division, Solan, District Solan, Himachal Pradesh on 09.09.1998. He then contended that appellant Smt. Roop Kaur knew about the proceedings and the reply has also been filed on her behalf to the petition filed by his clients.

We have heard the learned counsel for the parties and gone through the pleadings carefully.

The appellants were served with a notice, dated 27.9.1997, Ex.-PW-1. According to this notice, tenancy of the appellants was terminated and they were required to hand over the vacant and peaceful possession of the premises by 01.11.1997 and also to pay a sum of Rs. 2850/- as arrears of rent. A detailed reply was sent to the notice by the appellants'' Advocate on 17.10.1997 (Ex.-PW6). Thereafter, case No. 73/13-A of 1998 was instituted in the Court of Collector (S.D.M.), Solan, District Solan, H.P. The appellant filed reply to the petition on 08.10.1998. The Collector, Solan Sub Division, Solan, District Solan, H.P. has ordered the issuance of notices to the appellants under Sections 4 and 7 on 09.09.1998 as per the record of the proceedings. Learned Advocate appearing on behalf of the appellants sought further time to file reply(s) to the same on 30.11.1998. The reply(s) to the notices issued under Sections 4 and 7 were filed by the appellants Advocate on 20.12.1998. The copies of notices issued under Sections 4 and 7 are not on record. But, the fact of the matter is that the notices were issued as per order, dated 09.09.1998, to which the reply was filed by the appellants on 20.12.1998. The appellants have not argued before the learned Collector (S.D.M.), Solan, District Solan, H.P. that the notices issued to them under Sections 4 and 7 were defective.

Mr. B.S. Chauhan, learned counsel for the appellants has vehemently argued that in the notices issued to the appellants, the grounds on which the order of eviction was proposed, was to be specifically mentioned and thereafter, the appellants were required to be permitted to file their reply(s) and only thereafter, the orders could be passed u/s 5 of The Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971. The manner in which notice is to be issued u/s 4 of the Act has been prescribed under The Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Rules, 1971. The appellants have not raised objections before the Collector (SDM), Solan that the notices issued to them u/s 4 were defective. It was always open to the appellants to take this ground before the Collector (SDM), Solan. Since this question was not raised before him by the appellants, they were estopped from raising this plea. Though this plea has been taken by the learned Advocate appearing on behalf of the appellant before the learned appellate authority, but it has not been argued how Section 4 of the Act was violated.

Mr. B.S. Chauhan, learned counsel for the appellants has also argued that the proceedings could not be instituted against the minors. We have already noticed that the reply to the petition was filed by the appellants through Smt. Roop Kaur. She is the mother of appellants No. 2 to 5. She knew about the proceedings throughout and the parties were also duly represented by the learned Advocates.

It is true that the Collector has to form the opinion and he has to specify the grounds on which the order of eviction is proposed to be made, but this objection has to be raised at the first instance, failing which, it would amount to waiver and acquiescence. The order, dated 26.03.2001, passed by the Collector (SDM), Solan, District Solan, H.P. and order, dated 22.01.2003, passed by the Commissioner (Revenue), Himachal Pradesh, Shimla are in conformity with law.

The learned Single Judge has passed a well reasoned judgment by taking into consideration all the pleas raised before him by the parties. Learned Single Judge has also come to the right conclusion that the notice issued to one of the joint tenants was valid. The appellants in the present case have also failed to establish how the interests of the minors have been prejudiced, since they were duly represented through their natural guardian. The mother has pursued the case on behalf of the minors.

Mr. B.S. Chauhan, learned counsel for the appellants has relied upon the following judgments: (i) Wire-Netting Stores and Another Vs. The Delhi Development Authority and Others, ; (ii) Dr. Yash Paul Gupta Vs. Dr. S.S. Anand and Others, and Ravinder Singh and Others Vs. State of Himachal Pradesh and Others, However, these judgments are not applicable in the present case in view of the discussions made hereinabove. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in this Letter Patent Appeal and the same is dismissed, so also the pending application(s), if any. No costs.