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2005 DIGILAW 145 (HP)

KEHAR SINGH v. STATE OF H. P.

2005-05-17

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J. (Oral) :- This appeal is directed against the order of the learned District Judge, Kangra at Dharamshala in Civil Misc. Appeal No. 15/9/XIV of 1996 whereby he has accepted the appeal filed by the respondent-State and remanded the case to the Assistant Collector, 1st Grade. 2. The facts of the case make both, interesting and distressing reading. Proceedings under Section 163 of the Land Revenue Act, (hereinafter referred to as the Act), were started against respondent Kehar Singh on the ground that he had encroached upon the land of the State Government comprised in Khasra No. 539/1, measuring 0-01-19 hectares. The respondent filed his objections and took up the plea that he had become owner of the land by way of adverse possession. Since the question had been raised whether the respondent had become owner of the land by way of adverse possession, the revenue officer handling the case was required to determine the question like a civil court. In this behalf it would be useful to quote Section 163(3) of the Act which reads as follows :- "Section 163(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, shall 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." 3. In the present case a perusal of the record of the Assistant Collector, 1st Grade shows that on 19th October, 1995 the objections were filed by Kehar Singh claiming that he had become owner by way of adverse possession. The Assistant Collector took note of the aforesaid provision of Section 163(3) of the Act and treated the objections filed by Kehar Singh as a plaint. Notice was issued to. Collector Kangra alongwith copy of the objections to file its written statement to the said objections. The case was adjourned to 16.11.1995 for filing reply. On 16th November, 1995, one Jagdish Ram, Office Kanungo, Jaisinghpur appeared on behalf of the respondent. He sought further time to file the reply. Notice was issued to. Collector Kangra alongwith copy of the objections to file its written statement to the said objections. The case was adjourned to 16.11.1995 for filing reply. On 16th November, 1995, one Jagdish Ram, Office Kanungo, Jaisinghpur appeared on behalf of the respondent. He sought further time to file the reply. This request was accepted and the case was adjourned to 2nd December, 1995. On 2nd December, 1995 another date was sought and the case was adjourned to 2nd January, 1996 for filing of written statement. On this date also the State did not file any reply to the objections and at the request of Office Kanungo one last opportunity to file written statement was granted on the condition that no further date would be "granted. The case was adjourned to 16th January, 1996 for this purpose. On 16th January, 1996 also no reply was filed. The A.D.A., Palampur sent a letter No. ADA/PLA/95, dated 3rd December, 1995 which is on the file. In this letter, ADA had requested one more opportunity to file the reply. Another opportunity was granted and the case was adjourned to 1st February, 1996. On this date -also no reply was filed. 4. A reading of the order dated 1st February, 1996 makes a sad reading. The Assistant Collector has first recorded the various opportunities given by him. He has also mentioned that a letter was sent to the Assistant Collector, Kangra through the Assistant Collector, Palampur that the reply be filed by the next date and it was clearly mentioned that this was the last opportunity given. The SDO (Civil), Palampur sent a demi-official letter No. 121, dated 19.1.1996 to Tehsildar, Palampur that the Assistant Collector 1st Grade, Jaisinghpur has granted last opportunity in this case. In this letter the Tehsildaf was asked that on a personal level he should get the reply prepared. On 29th January, 1996 the ADA, Palampur telephoned the Assistant Collector 1st Grade and requested that he should give a few days further time to prepare the reply on the ground that he had to get the same signed from the District Collector. The Assistant Collector again adjourned the case to 8th February, 1996 and information of this order was given to the Assistant Collector, Kangra about the next date fixed. On 8.2.1996 one Santosh Kumar, Sub Divisional Kanungo from the office of Sub Divisional Officer, Palampur appeared. The Assistant Collector again adjourned the case to 8th February, 1996 and information of this order was given to the Assistant Collector, Kangra about the next date fixed. On 8.2.1996 one Santosh Kumar, Sub Divisional Kanungo from the office of Sub Divisional Officer, Palampur appeared. He again requested for another date to file the reply. This further opportunity was granted subject to payment of Rs. 20/- as costs. It was made clear in this order that in case the reply is not filed by next date, i.e. 1st March, 1996, when the State shall be proceeded against ex parte. 5. On the next date, i.e. 1,3.1996 none was present on behalf of the respondent-State at 10.45 a.m. No reply had been field on behalf of the State. The Assistant Collector 1st Grade proceeded ex parte against the State Government. The case was fixed for 8th March, 1996 for recording ex parte evidence. On this date Jagdish Ram, Office Kanungo appeared on behalf of the State. The witnesses of objector Kehar Singh were examined and their statements recorded. Arguments in the matter were heard on 23rd March, 1996 and the order announced on the same date whereby the Assistant Collector accepted the plea of Kehar Singh that he had become owner of the disputed property by any of adverse possession. 6. The State being aggrieved against the said order filed appeal before the learned District Judge, Kangra. The learned District Judge, Kangra by a short and cryptic order has remanded the case back to the Assistant Collector. The reason for doing so is reflected in two lines in the order which reads as follows :- "I find no plaint on the basis of which the relief has been granted to the respondent. After receiving the plaint and reply, it was incumbent upon the learned Assistant Collector 1st Grade to frame the issues and on the basis of issues the parties were to be asked to lead their evidence and then to decide the case issue-wise and then the final findings." 7. It appears that the learned lower appellate Court has not even cared to go through the order of the Assistant Collector which was under challenge before him. It appears that the learned lower appellate Court has not even cared to go through the order of the Assistant Collector which was under challenge before him. The order of the Assistant Collector and the record which has been quoted in detail hereinabove clearly shows that the Assistant Collector had ordered that the objections filed by Kehar Singh be treated as plaint and had given more than ample opportunities to the State to file its reply to the same. The State did not file any reply and was proceeded against ex parte. Since there was no reply, no issues were to be framed. The evidence of objector Kehar Singh was recorded and on the basis of the evidence a detailed order was passed. 8. In view of the above discussion the judgment of the lower appellate Court cannot be upheld. The reason given for setting aside the order of the Assistant Collector are wholly inconsistent with the record. As such the order of the learned District Judge, Kangra in Civil Misc. No. 15-9/XIV/96 dated 12.6.1996 remanding the case back to the Assistant Collector is set aside. The case is remanded to the District Judge to decide the same on this merits. 9. The parties through their learned Counsel are directed to appear before the learned District Judge, Kangra on 23rd June, 2005. Since the appeal is an old one, the learned District Judge is directed to decide the same as expeditiously as possible and in any event not later than 30th September, 2005. 10. Before parting with the case I must record my dissatisfaction and dismay with regard to the manner in which various functionaries of the State have tried to pressurize the revenue officer. Once the Revenue Officer has to decide the question of title or adverse possession under Section 163(3) of the Act then he proceeds to determine the question as if he were a civil Court. He exercises all the powers of a civil Court. He must be treated like a judicial officer. The State was at best one party or litigant before him. No litigant is expected to correspond or send letters to the presiding officer of a Court. All requests for adjournment or any other request can be made only by filing applications before the Court. He must be treated like a judicial officer. The State was at best one party or litigant before him. No litigant is expected to correspond or send letters to the presiding officer of a Court. All requests for adjournment or any other request can be made only by filing applications before the Court. In the present case, as noticed above, various letters were addressed to the presiding officer on behalf of the officials of the State as if he was some body subordinate to them. Once an officer dons the robes of a court he must be treated like a Court. All the more distressing is the manner in which a law officer (ADA, Palampur) who is supposed to be well versed with such procedure has not only sent letters to the presiding officer asking for adjournment, but has also telephoned him in this behalf. The common public will have no faith in the system and shall loose trust in the majesty of law if officers who are entrusted with judicial powers and who discharge judicial functions are treated like the revenue officer was treated in the present case Merely because one party to the lis happens to be the almighty State is no ground to treat the presiding officer in such a manner. In proceeding under Section 163 the State is bound to be a party in all the cases. Therefore, I felt it necessary to elaborate on the subject so that in future when judicial and quasi judicial functions are discharged by administrative officers, then the State should act like a normal litigant and no such letters, wireless messages or telephonic conversation with regard to the cases should be exchanged with such officers. 11. A copy of this order be sent to the Secretary (Home), Secretary (Revenue) and Secretary (Law) to the State of Himachal Pradesh for conveying it to all concerned and to ensure that the above observations are complied with.