Himachal Pradesh High Court
Sandeep Kumar vs State Of H.P. & Ors. on 30 September, 2021
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF SEPTEMBER 2021
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
.
CIVIL WRIT PETITION No. 693 of 2021
Between:-
1. SANDEEP KUMAR,
S/O SH. JAGDISH CHAND,
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
2. SATISH KUMAR,
S/O SH. VIKRAM CHAND,
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
3. KULDEEP KUMAR,
S/O SH. ATMA RAM,
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
4. SUNIL KUMAR,
S/O SH. JAGDISH CHAND,
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
5. JOGINDER,
S/O SH. ATMA RAM,
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
6. ARUN KUMAR,
S/O SH. KULDEEP,
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
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TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
7. KAMLESH KUMAR,
S/O SH. PREM CHAND,
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
.
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
8. SHEKHAR KUMAR,
S/O SH. PURAN CHAND,
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
9. GOLDY KUMAR,
S/O SH. SURESH KUMAR,
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
......PETITIONERS
(BY SH. R.K. GAUTAM, SENIOR ADVOCATE WITH
MS. MEGHA KAPUR GAUTAM, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL SECRETARY
(FORESTS) TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA-02
2. PRINCIPAL CHIEF CONSERVATOR
OF FORESTS (HOFF),
HIMACHAL PRADESH FOREST
DEPARTMENT, TALLAND,
SHIMLA-171001
3. DIVISIONAL COMMISSIONER,
KANGRA DIVISION,
DISTRICT KANGRA, H.P.
4. DIVISIONAL FOREST OFFICER,
DHARAMSHALA FOREST DIVISION,
DHARAMSHALA, DISTRICT KANGRA, H.P.
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5. FOREST GUARD,
I/C SATOBARI, DHARAMSHALA
FOREST DIVISION, DHARAMSHALA
CIRCLE, DISTRICT KANGRA, H.P.
6. MANOJ KUMAR,
S/O SH. SHIV CHARAN,
.
R/O VILLAGE NADDI,
POST OFFICE DAL LAKE,
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P.
......RESPONDENTS
(MS. SEEMA SHARMA, DEPUTY ADVOCATE
GENERAL WITH SH. SHRIYEK SHARDA, SENIOR
ASSISTANT ADVOCATE GENERAL, FOR R-1 TO R-5,
SH. AJAY SHARMA, SENIOR ADVOCATE WITH
SH. AJAY THAKUR, ADVOCATE, FOR R-6)
This petition coming on for orders this day, the Court
passed the following:
ORDER
Petitioners No.1 and 3 to 9 have been issued
separate notices dated 30.01.2021 by the Forest Guard, I/C
Satobari Beat, Dharamshala Forest Division. The notices
direct the petitioners to remove their construction raised
over the forest land, failing which legal action was to be
initiated against them. But for the difference in area and
nature of the construction, the separate notices issued to
the petitioners have following common contents:-
"Subject:- Notice.
Memo,
It has come to the notice of undersigned that
you have Teen Pose Kokha in UP139K D/shala C-17. You are
thereby served this notice to remove this construction over
forest land immediately before dated 08/02/2021. If you are
not Dismantle the Teen Pose Kokha then legal action will be
taken against you and you will be charged for remove it.
Sd/-
Forest Guard,
I/C Satobari Beat."
2. Assailing these notices, learned Senior Counsel
.
for the petitioners contended that the Forest Guard had no
authority to issue the impugned notices. A Forest Guard is
not authorized under the Himachal Pradesh Public
Premises and Land (Eviction and Rent Recovery) Act, 1971
(in short 'Act') to issue eviction notices. The Authorized
Officer in terms of Section 4 of the Act is the Collector.
Learned Senior Counsel further submitted that as per
Section 4 of the Act, in case the Collector is of the opinion
that any person is in unauthorised occupation of any public
premises situated within his jurisdiction and is liable to be
evicted, then, he is required to issue a notice in writing,
calling upon such person to show cause as to why the order
of eviction should not be made. Thereafter, further
procedure is provided under the Act for proceeding in the
matter. In the instant case, show cause notices have not
been issued to the petitioners. Notice issued by the Forest
Guard is not in conformity with the provisions of the Act.
3. Learned Deputy Advocate General submitted
that the impugned notices have been issued to the
petitioners only by way of warning and to give them a
chance to remove and dismantle on their own the
unauthorized structures raised by them over the forest
land, failing which legal action was to be taken against
them in accordance with law. The reply filed by the
.
respondents is also to the effect that "Therefore, the
proceedings under HP Public Premises Act are going to be
initiated against the petitioners".
Learned Senior Counsel appearing for
respondent No.6, inviting attention to a judgment passed by
a Division Bench of this Court on 19.07.2021 in CWP
No.3821 of 2021, titled Harnam Singh alias Rinku
Chandel Versus State of H.P. & Ors., stated that the
encroachments have been made by the petitioners
alongside National Highway and, therefore, they are liable
to be proceeded against in terms of the directions given in
the aforesaid judgment.
4. In view of the stand taken by respondents No.1,
2, 4 and 5, it becomes apparent that the writ petition has
been filed without there being any real cause of action
available to the petitioners. The notices impugned in the
petition have not been issued to the petitioners under the
provisions of the Himachal Pradesh Public Premises and
Land (Eviction and Rent Recovery) Act, 1971. The notices
have been issued only by way of warning and calling upon
the petitioners to demolish on their own the unauthorized
constructions raised by them on the forest land. The
notices clearly state that on failure of the petitioners to
comply the directions, legal action in accordance with law
.
will be taken against them by the respondents. The reply of
the respondents also states that the proceedings under the
Himachal Pradesh Public Premises and Land (Eviction and
Rent Recovery) Act, 1971 are going to be initiated against
the petitioners. In view of this stand, the contentions raised
by the petitioners loose their efficacy and become wholly
irrelevant. This petition is accordingly disposed of being
without any substantive cause of action. Respondents No.1
to 5 are at liberty to proceed against the petitioners in
accordance with law and also keeping in view the directions
issued by this Court in the judgment dated 19.07.2021
rendered in CWP No.3821 of 2021. It is hoped and expected
that all necessary actions shall be taken by the respondents
within a reasonable time. Pending miscellaneous
application(s), if any, also stand disposed of.
Jyotsna Rewal Dua
September 30, 2021 Judge
Mukesh
