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Himachal Pradesh High Court · body

2004 DIGILAW 89 (HP)

SUBHADRA CHAUHAN v. STATE OF H. P.

2004-05-06

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—Since common question of law is involved in these three revision petitions, therefore, these were heard together and are being disposed of by this common order. 2. The sum and substance of the facts leading to the presentation of these petitions are that proceedings for ejectment of the petitioners from the land allegedly encroached upon by them were initiated by the" concerned Assistant Collector under Section 163 of the Himachal Pradesh Land Revenue Act and they were ordered to be ejected from the land respectively encroached upon by them. Being aggrieved, the petitioners preferred appeals against the orders of ejectment in the Court of the learned District Judge, Shimla mainly on the ground that since the petitioners had raised the plea of title on the basis of adverse possession but the Assistant Collector concerned had failed to follow the procedure as provided by Section 163(3) and (4) of the H.P. Land Revenue Act. All the three appeals were allowed by the learned District Judge and the cases were remanded to the concerned Assistant Collector 1st Grade with the directions to proceed to determine the plea of adverse possession as raised by the petitioners by following the procedure applicable to the trial of a suit by a Civil Court as per the provisions of Section 163 of the Land Revenue Act. By the imputed acts and conduct of the concerned Assistant Collector, the petitioners apprehend that they may not get justice, therefore, they applied for transfer of the cases in the Court of the learned District Judge, Shimla who dismissed such applications on the premises that the Assistant Collector cannot be deemed to be a Civil Court under the jurisdiction of the Court of the District Judge, therefore, he could not exercise the powers of transfer under Section 24 of the Code of Civil Procedure (hereafter referred to as the Code). Being aggrieved, the petitioners have preferred the present revision petitions. 3. I have heard the learned Counsel for the petitioners, the learned Deputy Advocate General for respondents No.1 and 2 and the learned Counsel for respondent No.3 and have also gone through the papers placed on the record. 4. Being aggrieved, the petitioners have preferred the present revision petitions. 3. I have heard the learned Counsel for the petitioners, the learned Deputy Advocate General for respondents No.1 and 2 and the learned Counsel for respondent No.3 and have also gone through the papers placed on the record. 4. It was contended by the learned Counsel for the petitioners that while exercising the powers of a Civil Court under Section 163 of the Himachal Pradesh Land Revenue Act an Assistant Collector 1st Grade is a Court subordinate to the District Judge, therefore, the District Judge had the powers to transfer the cases pending before the Assistant Collector 1st Grade and the contrary view as taken by the District Judge is illegal and the impugned order based on such view cannot be sustained. 5. On the other hand, it was contended that an Assistant Collector 1st Grade is a revenue officer and thus not a Court subordinate to the District Judge, hence, the District Judge has rightly held in the impugned order that he had no jurisdiction to entertain the transfer applications. 6. Section 24 of the Code which deals with the general powers of transfer and withdrawal provides that the District Court may withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and transfer the same for trial or disposal to any other court sub-ordinate to it and competent to try or dispose of the same. Thus, Section 24 of the Code gives general power of transfer of all suits, appeals and other proceedings pending in a Court subordinate to the District Court to the District Judge. 7. Section 3 of the Code which deals with the subordination of Courts provides that every Civil Court of a Grade inferior to that of a District Court is subordinate to the District Court i.e. the District Judge. Therefore, for applicability of Section 24 of the Code the Court from which a case is sought to be withdrawn/transferred must be a Court subordinate to the Court of the District Judge within the meaning of Section 3 of the Code. 8. Before the enforcement of H.P. Land Revenue (Amendment) Act 15 of 1989 a Revenue Officer as such had the powers to eject an encroacher. However, by the aforesaid amendment Act sub-sections (3) to (6) were added to Section 163, which read as follows :— "163(1) ........................................................................................................ (2) ................................................................................................................ 8. Before the enforcement of H.P. Land Revenue (Amendment) Act 15 of 1989 a Revenue Officer as such had the powers to eject an encroacher. However, by the aforesaid amendment Act sub-sections (3) to (6) were added to Section 163, which read as follows :— "163(1) ........................................................................................................ (2) ................................................................................................................ (3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this Section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade, may proceed to determine the question, as if he were a Civil Court and shall exercise all such powers as are exercisable by a Civil Court. (4) For the determination of the question under sub-section (3), the Revenue Officer shall follow the same procedure as is applicable to the trial of an original suit by a Civil Court, and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908 to be specified therein. (5) An appeal from the decree of the Revenue Court made under subsection (4) shall lie to the District Judge as if that decree were a decree of a subordinate Judge in an original suit. (6) A further appeal from the appellate decree of a District Judge upon an appeal under sub-section (5), shall lie to the High Court only if the High Court is satisfied that a substantial question of law is involved." 9. On a bare reading of the aforesaid provisions, it is clear that whenever in the proceedings initiated by a Revenue Officer for ejectment of an encroacher there is a question as to title or to the adverse possession in relation to land from which ejectment is to be made under Section 163 of the H.P. Land Revenue Act, the revenue officer not below the rank of Assistant Collector 1st Grade may proceed to determine the question as if he were a Civil Court and shall exercise all such powers as are exercisable by a Civil Court and said question(s) shall be decided by following the same procedure as is applicable to the trial of an original suit by a civil Court. The judgment and decree, thus, passed shall be appealable to the District Judge as if the decree was a decree of a subordinate Judge in an original suit. Thus, for all intents and purposes, a revenue officer while acting as a Civil Court pursuant to the provisions of sub-sections (3) and (4) (supra) shall be-deemed to be a Civil Court as if it were a Court of Sub Judge which is a court subordinate to the District Judge. Therefore, there is no escape from the conclusion that while acting under sub-sections (3) and (4) of Section 163 (supra) the Assistant Collector 1st Grade is a Civil Court subordinate to the District Judge and the District Judge has the powers to transfer the proceedings which are being tried by him as an original suit. 10. For the reasons stated and the conclusions hereinabove, the learned District Judge, Shimla had the jurisdiction to entertain the transfer application filed by the petitioners and to pass appropriate orders on such applications in exercise of the powers under Section 24 of the Code as may be warranted in the facts and circumstances of the case. Therefore, the impugned orders cannot be sustained. 11. As a result, all these petitions are allowed and the orders therein impugned are set aside. The learned District Judge, Shimla is directed to restore the transfer applications filed by the petitioners and to dispose them of in accordance with law. 12. The parties to the transfer applications, through their counsel, are directed to appear before the learned District Judge, Shimla on May 24, 2004. Revision Petitions allowed. -