Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 45 (HP)

CHAMARU RAM v. ADDITIONAL COMMISSIONER

2002-03-07

KAMLESH SHARMA, W.A.SHISHAK

body2002
JUDGMENT Ms. Kamlesh Sharma, J.—In this writ petition the petitioner has assailed the order dated 10.7.2001 passed by the Additional Commissioner (Appeals), I Himachal Pradesh whereby his appeal was dismissed and the order dated 14.5.1999 passed by the Collector exercising the powers under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act (hereinafter called the Act) was affirmed. By the order dated 14.5.1999 the Collector had passed the order of eviction of the petitioner from the public premises Khasra Numbers 647/637/621/1, 647/637/624/2 and 647/637/624/3 measuring 5-5-4 bighas in Muhal/Forest N.DPF. Satyogi, Teh. Chachiot, Distt. Mandi, H.P 2. After hearing the learned Counsel for the petitioner and the learned Advocate General and going through the record, we do not find any infirmity in the impugned orders of eviction. The only point for consideration is the effect of non-consideration of the claim of the petitioner by the Authorities below that he has become owner by way of adverse possession of the premises in dispute. As per the petitioner, he has been in possession of the premises in dispute for the last 35 years and he had constructed a house over a portion of it to the knowledge of the respondents in the year 1965. We find that in his statement before the Collector as well as in the grounds of appeal before the Commissioner the petitioner did raise this point that he has been in possession of the land since long. Even the Forest Guard, Incharge, Kotlu Beat in his statement before the Collector had admitted that 22/23 years ago, the petitioner had started cultivation over the land measuring 5-0-4 bighas and constructed slate roofed house on the land measuring 0/2/10 bighas and cow-shed on land measuring 0-2-10 bighas. 3. In these facts and circumstances on record, the case of the learned Counsel for the petitioner is that on the failure of the authorities to decide the question of title raised by the petitioner, there is no remedy available to him in view of the bar laid down under Section 15 of the Act. 3. In these facts and circumstances on record, the case of the learned Counsel for the petitioner is that on the failure of the authorities to decide the question of title raised by the petitioner, there is no remedy available to him in view of the bar laid down under Section 15 of the Act. Section 15 of the Act provides as under:— "Bar of jurisdiction.—No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of Section 7 or the damages payable under sub-section (2) of that Section or the costs awarded to the State Government, corporate authority or a local body as given in sub-clause (i) of clause (e) of Section 2 under sub-section (5) of Section 9 or any portion of such rent, damages or costs” 4. Therefore, the learned Counsel for the petitioner has prayed that either the matter may be remanded to the Collector to adjudicate upon the claim of title of the petitioner or some time may be given to the petitioner to file civil suit in the Civil Court for getting his claim of title. settled. On the other hand, the learned Advocate General has supported the orders of the authorities below and has argued that being in unauthorized possession of the premises in dispute the order of eviction of the petitioner may be affirmed and the petitioner is not entitled to any relief. 5. After giving our best consideration to the respective contentions of the learned Counsel for the parties, we are of the view that the authorities below acting under the provisions of Sections 4(1) and 5 of the Act have no jurisdiction to determine the question of title when it is seriously in dispute between the parties and it is to be decided by the Civil Court. Sections 4(1) and 5 of the Act provide for summary eviction of a person who is in unauthorized occupation of the public premises. In the absence of machinery provided under the Act for adjudication of question of title, the jurisdiction of Civil Court cannot be barred. Sections 4(1) and 5 of the Act provide for summary eviction of a person who is in unauthorized occupation of the public premises. In the absence of machinery provided under the Act for adjudication of question of title, the jurisdiction of Civil Court cannot be barred. Almost similar provision was under consideration of the Supreme Court in State of Rajasthan v. Harphool Singh (dead) through his LRs., (2000) 5 SCC 652, and the learned Judges have held as under:— "11. The learned Counsel for the appellant strongly relied upon Section 22 and Section 25 of the Act to contend that the order passed by the ADM in exercise of his powers under Section 22 of the Act has become final and the jurisdiction of the Civil Court stands ousted in respect of such matters by virtue of Section 25 and therefore the suit could not have been entertained at all by the Civil Court. Section 25 of the Act stipulates that a Civil Court shall not have jurisdiction in any matter which the Collector is empowered by that Act to dispose of and shall not take cognizance of the manner in which the State Government or Collector or any officer exercises any power vested in it or in him by or under the said Act. Section 22 provides for a summary eviction of any person who occupies or continues to occupy any land in a colony to which he has no right or title or without lawful authority by treating such person as a trespasser in the manner and after following the procedure prescribed therefor. Reliance has been placed by the respondents on the decisions reported in Abdul Waheed Khan v. Bhazvani, AIR 1966 SC 1718 : (1966) 3 SCR 617 and Firm of Illuri Subbayya Chetty and Sons v. State of A.P., AIR 1964 SC 322 : (1964) 1 SCR 752, to substantiate their, claim that the bar of suit will not be attracted in a case of this nature. In our view, the principles laid down in Abdul Waheed Khan case while considering a provision like the one before us, that the bar is with reference to any matter which a Revenue Officer is empowered by the Act to determine and the question of title is foreign to the scope of proceedings under the Act, would apply to this case also with all force, that is on the provisions of Section 25 of the Act as it stands. Even that apart in State of T.N. v. Ramalinga Samigal Madam, (1985) 4 SCC 10 : AIR 1986 SC 794, this Court, after adverting in Dhulabhai v. State of M.P., AIR 1969 SC 78 : (1968) SCR 662, held that questions relating to disputed claims of parties for title to an immovable property could be decided only by the competent Civil Court and that in the absence of a machinery in the special enactment to determine disputes relating to title between two rival claimants, the jurisdiction of the civil Court cannot be said to have been ousted. In the case on hand, a citizen is asserting a claim of acquisition of title by adverse possession in derogation of the rights and interests of the State in the property in question. In our view, determination of such claims are not only outside the purview of Section 22 which only provides for a summary mode of eviction but in respect of such disputes relating to title to immovable property the jurisdiction of ordinary civil courts to adjudicate them cannot be said to have been ousted. The powers and procedure under Section 22 of the Act, in our view, are no substitute for the civil courts jurisdiction and powers to try and adjudicate disputes of title relating to immovable property/ (Emphasis supplied) 6. On the similar lines is the judgment of our Court in Kaka Ram alias. Ram Lai v. The Financial Commissioner, H.P. and others, ILR 1984 H.R 8. . 7. Therefore, relying upon the ratio of the judgment of the Supreme Court in State of Rajasthan v. Harphool Singh (dead) through his LRs. (supra) and of this Court in Kaka Ram alias Ram. Ram Lai v. The Financial Commissioner, H.P. and others, ILR 1984 H.R 8. . 7. Therefore, relying upon the ratio of the judgment of the Supreme Court in State of Rajasthan v. Harphool Singh (dead) through his LRs. (supra) and of this Court in Kaka Ram alias Ram. Lai v. The Financial Commissioner and others (supra), we have no hesitation to hold that the bar laid down under Section 15 of the Act cannot deprive the petitioner of his right to claim title of the premises in dispute by filing civil suit in the Civil Court because the powers and procedure under Sections 4(1) and 5 of the Act are no substitute for the Civil Courts jurisdictional powers to try and adjudicate disputes of title relating to immovable property. 8. The result of the above discussion is that there is no merit in this writ petition and it is dismissed. However, it will be in the interest of justice and fair play to direct that the petitioner will not be evicted in execution of the impugned eviction orders for a period of six weeks, during which period he may approach the Civil Court and apply for the grant of interim order. If the petitioner files a civil suit within a period of four weeks alongwith an application for interim relief, the appropriate court will consider his request for interim order and decide the same in accordance, with law within a period of two weeks thereafter. The writ petition is disposed of. No order as to costs. -