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2001 DIGILAW 258 (HP)

STATE OF HIMACHAL PRADESH v. BAGSHI RAM

2001-09-28

C.K.THAKKER

body2001
JUDGMENT C.K. Thakker, J (Oral):- This petition is filed against the judgment and decree passed by the Pistrict Judge, Bilaspur in civil Appeal No.4 of 2000/93. 2. The case of the petitioner-State before this court is that proceedings were initiated against respondent Bagshi Ram under the Himachal Pradesh Land Revenue Act, 1953 (hereinafter referred to as the Act). The allegation of the State was that the respondent was in unauthorised possession and occupation of the land comprising Khasra No.1081/1055/1 admeasuring 0-1 Biswa situated at village Bhadraun, Pargana Sariun, Tehsil Ghumarwin, District Bilaspur and, hence, he was liable to be evicted. He was, therefore, asked to vacate the land by handing over possession to the State, as he was encroacher. The Assistant collector 1st Grade, Ghumarwin, in Case No.66/13 passed an order on 22nd February, 1992 under Section 163 of the Act holding that the respondent was an encroacher and, as such, he was liable to be evicted. It was observed in the order that though it was contended on behalf of the encroacher that he was in possession and his possession was very old, he failed to produce any evidence in that regard showing his possession to be very old. Accordingly, in the opinion of the Assistant Collector, the question of title did not arise. He, therefore, passed an order of eviction as also directed the encroacher-respondent pay a fine of Rs.500A. he further observed that in case the respondent would fail to vacate the land, a warrant of ejectment would be issued for his eviction. 3. Being aggrieved by the order passed by the Assistant Collector, the respondent appears to have filed an appeal under Section 14 of the Act before the Collector, Sub-Division, Ghumarwin, District Bilaspur, being Revenue Appeal No.38/2 of 1992. The Collector, after considering the contentions of the respondent (appellant before the Appellate Authority), dismissed the appeal by an order dated 24th June, 1993. Before the Appellate Authority, it was contednded that the appellant was in lawful possession; that he had also constructed a house on the land and that he could not have been evicted. It was also submitted that no reasonable opportunity of cross-examination was extended to the appellant by the Assistant collector and the order was liable to be quashed and set aside. It was also submitted that no reasonable opportunity of cross-examination was extended to the appellant by the Assistant collector and the order was liable to be quashed and set aside. It was further submitted that when the appellant claimed adverse possession, the order could not have been passed by describing him as an encroacher and the Assistant Collector ought to have converted himself into a Civil court and ought t have followed the procedure of a suit. In that connection, reliance was placed on decisions of this Court. The collector, however, negatived all the contentions and dismissed the appeal. 4. It further appears that after the above order was passed by the Collector dismissing the appeal against an order passed by the Assistant Collector, the respondent herein approached the District court by filing civil appeal No.4 of 2000/93. Looking to the order passed by the District Judge, it does not appear that the fact regarding filing of appeal by the respondent to the Collector had been brought to the notice of the District Judge. It also appears that the order, which was challenged by the respondent before the District Judge" was one passed by the Assistant Collector on 22nd February, 1992. The district Judge it appears, condoned the delay in filing the appeal and proceeded to consider the appeal on merits. After hearing the parties, the District Judge, allowed the appeal, set aside the order passed by the Assistant Collector and remanded the matter to the Assistant Collector 1st Grade, Ghumarwin directing him to follow the provisions of sub-section (3) of Section 163 of the Act and to pass an appropriate order. The said order is challenged by the State in there present petition. 5. I have heard Mr. M.L. Chauhan, learned Deputy Advocate General, for the petitioner and Mr. R.K. Gautam, and learned counsel for the respondent. 6. Though several contentions have been raised by the learned counsel for the respective parties, in my opinion, only on one ground, the petition" deserves to be allowed and the judgment and decree passed by the District Judge are liable to be quashed and set aside. 7. It was submitted by Mr. R.K. Gautam, and learned counsel for the respondent. 6. Though several contentions have been raised by the learned counsel for the respective parties, in my opinion, only on one ground, the petition" deserves to be allowed and the judgment and decree passed by the District Judge are liable to be quashed and set aside. 7. It was submitted by Mr. Chauhan, learned Deputy Advocate General that once the order was passed by the Assistant Collector treating the respondent as encroacher and an appeal was filed by the respondent against the same order before the revenue authority i.e. before the Collector by invoking section 14 of the Act, it was neither open to the respondent to approach the District Judge under sub Section (5) of Section 163 of the Act, nor it is within the power, authority or jurisdiction of the District Judge to entertain such appeal. Presumably, the District Judge entertained the appeal and proceeded to decide it on merits because the fact of filing appeal before the Collector and dismissal thereof was not brought to the notice of the District Judge. He, therefore, submitted that the petition deserves to be allowed and the judgment and decree passed by the District Judge are liable to be quashed and set aside. 8. Mr. Gautam, learned counsel for the respondent, on the other hand\ submitted that once plea of adverse possession or assertion of title has been\ raised by the so called encroacher, it is incumbent on the part of the Assistant Collector to convert himself into a Civil Court and to followthe provisions of Sub-sections (3) and (4) of Section 163 of the Act. it is thereafter not open to him to enter into such plea and to come to a conclusion that the contention raised by the so called encroacher is ill founded and to record a finding that he is encroacher. Since, it was not done, the order passed by the Assistant Collector was without jurisdiction. In these circumstances, the action taken by the District Judge not be held illegal or unlawful. He also submitted that even if it is assumed that there was negligence or mistake on the part of the respondent in approaching the collector and/or not bringing to the notice of the District Judge about filing of appeal before the collector and dismissal of such appeal, the legal position does not change. He also submitted that even if it is assumed that there was negligence or mistake on the part of the respondent in approaching the collector and/or not bringing to the notice of the District Judge about filing of appeal before the collector and dismissal of such appeal, the legal position does not change. Since the order passed by the Assistant collector was without jurisdiction, the order of the District Judge does not call for interference. 9. In the facts and circumstances of the case, in my opinion, the judgment and decree passed by the District Judge are liable to be quashed and set aside. In my view, the submissions of Mr. Chauhan, learned Deputy Advocate General is well founded that once an order was passed by the Assistant collector even if wrong, appropriate proceedings could have been initiated by the respondent. If at that stage, the responded had approached the District Judge by invoking sub-section (5) of Section 163 of the Act by contending that the order passed by the Assistant Collector was without jurisdiction and once a plea of ownership/adverse possession was raised by the defendant/opponent, it was not open to him to enter into correctness or otherwise of such a plea, and h§ ought to have converted himself into a Civil court, presumably, the respondent could have contended before this Court that the District judge was within his jurisdiction to entertain such appeal. But once, the respondent had proceeded against the order passed by the Assistant Collector by filing an appeal before the Collector under Section 14 of the Act and when the said appeal was dismissed, he could not have approached the District Judge. 10. In my opinion, the learned Deputy Advocate General is also right in submitting that once an order passed by the Assistant collector was made subject matter of appeal and the appeal was dismissed by the Collector, in the eye of law, there was no order in existence, which can be said to be passed by the Assistant Collector. Once an order passed by a competent authority is appealed against and the appeal is finally disposed of one way or the other, the doctrine of merger applies and the order passed by the original authority merges in the order passed by the Appellate Authority merges in the order passed by the Appellate Authority. Once an order passed by a competent authority is appealed against and the appeal is finally disposed of one way or the other, the doctrine of merger applies and the order passed by the original authority merges in the order passed by the Appellate Authority merges in the order passed by the Appellate Authority. In the instant case, the order was passed by the competent authority on 22nd February, 1992. The appeal was filed by the respondent against the said order before the Collector on 2nd April, 1992 and the appeal was dismissed on 24th June, 1993. Thus, on and with effect form 24th June, 1993, it cannot be said that there was an order dated 22nd February, 1992 in existence, such an order, being merged with the order passed by the Appellate Authority on 24th June, 1993. 11. It is not even the contention of the learned counsel for the respondent that an appeal lies before the District Judge against the order passed by the collector in exercise of the power under Section 14 of the Act. The Scheme of the Act is that if the Assistant Collector exercises jurisdiction under Sub-Section (3) and (4) of Section 163 of the Act "as if a Civil Court", that an appeal would lie to the District Judge. In the instant case, the order, passed by the Assistant Collector was confirmed by the collector under Section 14 of the Act. Hence, the District Judge could not have entertained the appeal, and, hence the judgment and decree are liable to be quashed and set aside. 12. For the foregoing reasons, the petition deserves to be allowed and is accordingly allowed. The judgment and decree passed by the District Judge in Civil Appeal No.4 of 2000/93 dated th January, 2000 are hereby quashed and set aside. It is, however, clarified that since the order was passed by the Collector on 24th June, 1993 dismissing the appeal filed by the respondent, it is open to the respondent to take appropriate proceedings available to him in accordance with law against the said order and the disposal of this petition will not come in the way of the respondent in taking such steps. The petition is accordingly allowed to the extent indicated above. No costs.