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2002 DIGILAW 29 (HP)

SATYA PAL v. RATTAN CHAND

2002-01-30

S.S.NEGI

body2002
ORDER S.S. Negi, IAS:- This revision petition filed by Shri Satya Pal s/o Sh. Daya Ram r/o near Janta Bakery Ward No. 6 Hamirpur (H.P.) is directed against the order dated 23.1.1999 passed by the learned Commissioner Mandi Division whereby revision petition of the present petitioner was dismissed. 2. The facts of the case in brief are that the Assistant Collector 1st Grade Tehsil Hamirpur initiated eviction proceedings against the petitioner on the report of the Patwari Halqua who had reported that the petitioner had encroached upon the Gou. land comprised in Khasra No. 1385/1 measuring 15.60 Sq. Mtr. In up-Mohal Gaura. Tehsil and Distt. Hamirpur. The Assistant Collector 1st Grade called for a report from the Assistant Collector Ilnd Grade Hamirpur on the purported encroachment by the petitioner, and the report was submitted by him of 23.10.1993. The petitioner insisted and prayed the Assistant Collector 1st Grade himself to visit and demarcate the land in question to ascertain the factum of actual encroachment by the petitioner on the Govt. land. The Assistant Collector 1st grade himself visited the spot on 2.7.1994. demarcated the land and came to the conclusion that the land under encroachment of the petitioner was very minor and negligible area measuring only 1 Sq. Mtr. and he consequently dropped the eviction proceedings against the petitioner by his order dated 1.8.1994. Sh. Rattan Chand respondent No. 1 assailed this order before the Collector Sub-Division Hamirpur on the grounds that the land in question measures 15.60 Sq. Mtrs. and the same is situated onthe Dharamshala Shimla National Highway and commanded market value of more than Rs. 25000/-. It was accordingly prayed that the Assistant Collector 1st Grade wrongly and illegally dropped the eviction proceedings against the petitioner. 3. The collector after hearing the parties and going through the record accepted the appeal and directed that the petitioner be evicted from the land on the ground that the Govt. land in question was very valuable and situated in the heart of the Town, adjoining to the road. An appeal was filed against this order before the Commissioner Mandi who dismissed the same by passing the order under challenge in the present proceedings before us at the instance of Sh. Satya Pal. 4. The records were requisitioned and the parties were afforded to address their arguments in the matter. 5. An appeal was filed against this order before the Commissioner Mandi who dismissed the same by passing the order under challenge in the present proceedings before us at the instance of Sh. Satya Pal. 4. The records were requisitioned and the parties were afforded to address their arguments in the matter. 5. The learned counsel for the petitioner in his written arguments has submitted that the proceedings are barred by the principle of res-judicatta as the matter was directly and substantially in issue before the Assistant Collector 1st Grade Hamirpur in case No. 127/86 decided on 30.9.1986 in which eviction proceedings against the petitioner was dropped by the Assistant Collector. The learned counsel for respondent has submitted that the Assistant collector for respondent has submitted that the Assistant collector 1st Grade has ignored the reports of the Patwari Halqua made in the year 1986 and that of Naib Tehsildar dated 23.10.1993 wherein the petitioner has been shown to be in un-authorised occupation of the govt. land measuring 15.60 Sq. Mtrs. This plea of the petitioner is not tenable since the principle of res-judicatta is not applicable in the proceedings before the Revenue Officers and more so the trial court at both the occasions in the year 1986 and 1994 did not return any findings on the merits of the controversy. 6. The learned counsel for the petitioner further submitted that the Naib Tehsildar of Patwari Halqua was not competent to demarcate the land in question and the Collector or the Commissioner could not have relied upon their reports to evict the petitioner from an area of 15.60 Sq. Mtrs. whereas the Assistant Collector 1st Grade himself put the area at 1 Sq. Mtr. only which encroachment according to Assistant Collector 1st Grad him self was negligible and of a minor nature. The learned counsel for respondent controverted the submissions made for the petitioner and asserted that the area under the illegal occupation was 15.60 Sq. Mtrs. and accordingly prayed that the encroachment howsoever minor should not be overlooked and the petitioner be evicted from the Govt. land. 7. It appears that the Collector Sub-Division Hamirpur relied upon the report of the Patwari Halqua as also on the report of Naib Tehsildar to the effect that encroachment of the petitioner on the Govt. land was to the extent of 15.60 Sq. Mtrs. land. 7. It appears that the Collector Sub-Division Hamirpur relied upon the report of the Patwari Halqua as also on the report of Naib Tehsildar to the effect that encroachment of the petitioner on the Govt. land was to the extent of 15.60 Sq. Mtrs. whereas the Assistant Collector 1st Grade also visited the spot, himself and he put the area under the encroachment only to the extent of 1 Sq. Mtr. There appears to be inconsistence in the reports with regard to actual area under encroachment submitted by the field officials vis-a-vis the finding of fact by Assistant Collector 1st Grade on the spot. In view of the varying versions of the factual encroachment of the petitioner on the Govt. land, it appears necessary to determine the factum of actual encroachment of the petitioner. It is accordingly ordered that the Assistant Collector 1st Grade Hamirpur should enquire into the matter afres and pass appropriate orders in accordance with law after hearing both the parties. Therefore the impugned order is set-aside and the case is remanded to the Assistant Collector 1st Grade for disposal as directed. 8. Orders be communicated to the parties and the case file of this court be consigned to the record room after due completion.