NARSINGH DASS Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The petitioner occupied a stall situated in the Anaj Mandi, Simla. A notice dated April 23, 1973 was served on him by the Municipal Corporation of Simla, respondent No. 2, declaring that he had without authority constructed a shed on land which belonged either to the Government or to the Municipal Corporation and he was required to demolish the stall. He was warned that on his failure to do so it would be demolished by the Municipal Corporation. Thereafter on November 20, 1973 the Municipal Corporation applied to the Collector of Simla for eviction proceedings against the petitioner under Section 4 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, In the eviction proceedings the petitioner contended that he had not encroached upon any land belonging to the Corporation and that the land in question had been in his possession for many years. The parties led evidence before the Collector, in the course of which the Municipal Corporation produced a document purporting to be an order of the Engineer, Roads and Buildings, which recited that the petitioner had constructed the shed without the permission of the Municipal Corporation and that proceedings should be taken against him. The Collector made an order dated January 16, 1975 holding that the petitioner was in unauthorised occupation of public premises and under Section 5 (1) of the aforesaid Act, he directed the petitioner to vacate the premises, failing which, the petitioner wag warned, he would be evicted. The petitioner appealed, and the Divisional Commissioner, Himachal Pradesh has dismissed the appeal by his order dated November 15, 1975. The petitioner now prays for relief under Article 226 of the Constitution.

(2.) The Divisional Commissioner has found that the land on which the petitioner had raised the shed was a vacant space beside a public street, and was therefore under the control and management of the Municipal Corporation. Consequently, he held, the land could be described as public premises. In view of Section 55 (1) (g) of the Himachal Pradesh Municipal Act, 1968, the Divisional Commissioner held the premises to have vested in, and to be under the management and control of, the Municipal Corporation. Learned counsel for the petitioner contends that the view taken by the Divisional Commissioner proceeds on a manifest error of law. In my opinion, learned counsel is right.

(3.) It is plain from Sections 4 and 5 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 that an order of eviction is contemplated where a person is in unauthorised occupation of any public premises. By virtue of the definition in Section 2 (e) of the Act, the expression "public premises" includes premises belonging to a Municipal Corporation. The Divisional Commissioner has held the land to belong to the Municipal Corporation on the footing that it is a vacant space beside a public street. It seems to me that the relevant provisions of the statute have not been noticed in their entirety. In order to vest in the Municipal Corporation under Section 55 (1) (g) of the Himachal Pradesh Municipal Act the land must be a public street. A "public street," as defined by Section 2 (22) (b) of the Act, is a street which has been "levelled, paved, metalled, channelled, sewered or repaired out of municipal or other public funds" (subject to the exceptions mentioned in the definition) or is a street declared by the committee to be, or becomes under the Act, a public street. To be a "street," for the purpose of the Act, it must be, according to Section 2 (22) (a):