Suraj Bansi Vs. Collector and anr. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.surinder singh, j.1. the petitioner herein, felt aggrieved and dissatisfied by the impugned order passed under section 12 of the h.p. roadside land control act, 1968, in short the 'act,' by the collector, sub division kalpa at reckong peo, district kinnaur (h.p.) in case no. sdk-1/2002 decided on 17.12.2003, whereby the petitioner was ordered to restrore the building to its original position by removing the extension, between rd-5/68240 and rd5/712 of the building situated in khasra no. 687 within three months of the order, failing which the order aforesaid shall be complied with through use of means as it would be thought proper under the said section by the collector and costs of which would be recovered from the petitioner.2. shri shrawan dogra, learned counsel for the petitioner sought quashing of the impugned order on the ground that the complaint, filed by the assistant engineer, p.w.d. before the collector under the aforesaid act, alleging therein that carrying of the construction work by the petitioner, was wrong, illegal and contrary to law. the house in question is stated to be in existence on the spot over khasra no. 786 with effect from the year 1965 whereas the act received the assent of the governor on the 13th june, 1969, which was published in the rajpatra on 3rd september, 1969 and it is pointed out that the revenue record placed on record substantiate this fact. therefore, section 5 of the said act was misapplied by the collector, as the act of the petitioner was saved under proviso of (a) of said section which fact was conveniently ignored. thus in the instant case, there was an error of jurisdiction, exercised by the collector and this court is competent to pass appropriate order in exercise of the powers vested in it under article 227 of the constitution of india.3. contra, shri j.s. guleria, learned law officer countered the aforesaid argument that neither the petitioner had shown the error of jurisdiction in accordance with law, having been exercised by the collector nor violation of any procedure or disregard to the principles of natural justice was pointed out. the collector was within his powers to order for the removal of the structure raised without his permission, therefore, the petition merits dismissal.4. i have considered the rival contentions of the learned counsel for the parties and carefully gone through the record.5. the allegations in the complaint, filed by respondent no. 2 against the petitioner revealed that the petitioner was found carrying on the construction work between the aforesaid rd's in khasra no. 687 upmuhal reckong peo, within the controlled width of powari link road which was allegedly declared as a scheduled road at sr. no. 3 of the notification issued on 19.7.1971, which fact was denied in the reply by the petitioner wherein, he has specifically pointed out that he has an old house existing over khasra no. 687, since the year 1965, much prior to the issuance of the said notification. thus he disputed the application of section 5 of the act, in his case for restoration of the land in question.6. the collector held that the report revealed a new construction was being carried out, on eastern side of khasra no. 687 which fell within the 'controlled area' without the permission of the collector and the petitioner could not produce reliable proof with respect to existence of the building over khasra no. 687, thus the petitioner violated the provisions of section 5(b) of the act.it shall be relevant to quote section 5 of the act, which reads as under:5. restriction on buildings etc. in a controlled area.--notwithstanding anything contained in any other laws for the time being in force, no person shall erect or re-erect any building or make or extend any excavation or lay out means of access to a road in a controlled area:provided that nothing in this section shall apply to-(a) the repairs to a building which was in existence immediately before the commencement of this act or any erection or re-erection of such a building which does not involve any structural alteration or addition therein, or(b) the erection or re-erection of a building which was in existence immediately before the commencement of this act and which involves any structural alteration or additien with the permission of the collector, or(c) the laying out of any means of access to a road with the permission of the collector, or(d) the erection or re-erection of a motor-fuel-filling station or a bus-queue with the permission of the collector, or(e) any construction with the permission of the collector.the proviso starts with the non-obstante clause that nothing in the section applies to the categories of constructions which fell there under. the petitioner lays stress on clause (a) of the proviso which indicates that the section shall not apply to the repair to a building which was in existence immediately before the commencement of this act or any erection or re-erection of such a building which does not involve any structural alteration or addition therein.7. it is not disputed that khasra no. 687 did not belong to the petitioner. infact jamabandi for the year 1967-68 indicates that this land fell in khasra no. 1004/579 which was measuring 2-1 bigha, out of which over 0.10 biswas 'gair mumkin dukan' existed. subsequent jamabandi for the year 1972-73 of the then mauja khawagi shows that on its portion over khasra no. 1082/1004/579 a gair mumkin makan (house) existed over 0-5 biswas. further, the jamabandi for the year 1977-78 reflects the same position, but in the missalhaquiat of mauja reckong peo, tehsi kalpa, khasra no. 1082/1004/579/5 min was assigned khasra no. 687 measuring 0-02-02 hectares over which gair mumkin makan (house) was shown existing and jamabandi for the year 1990-91 records the petitioner as owner in possession thereof which entry is existing continuously in the revenue record till date.8. thus the upshot of the above observation and discussion is that the entire khasra no. 687 was a built up area prior to the year 1969 and no portion of it was shown vacant land. thus, in my opinion the restriction as envisaged by the act under this section would not apply to it by virtue of proviso (a) of section 5 of the act.9. therefore, in the aforesaid circumstances, in my considered opinion, the collector has committed an error of jurisdiction in exercising the power vested in him by applying clause (b) of section 5 of the, act in this case. thus, the impugned order, is quashed and set aside.10. consequently, the complaint filed by the department stands dismissed. the petition is allowed and is accordingly disposed of.