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2006 DIGILAW 155 (HP)

Sita Lal v. State Of Himachal Pradesh

2006-05-25

DEEPAK GUPTA

body2006
JUDGMENT : Deepak Gupta, J. - The State of Himachal Pradesh initiated proceedings for eviction of the present appellant under Section 163 of the H.P. Land Revenue Act (hereinafter referred to as the Act). The case of the State was that khasra No.31 is a demarcated protected forest and the appellant had encroached upon the property belonging to the State. The appellant contested these proceedings and from the perusal of the orders of the various revenue authorities it is apparent that the appellant raised a plea that he had been in possession of the suit property since long and was not liable to be ejected therefrom. Though the reply filed by the present appellant in proceedings with the Assistant Collector has not been placed or proved on record the order of the Assistant Collector has been exhibited as Ext.PW-1/B. A perusal of this order clearly shows that the plea of the appellant was that he had been in possession of the land from time immemorial and in this way it appears that the appellant had set up the plea of adverse possession. The proceedings culminated in the order of eviction dated 30.3.1989 passed by the Collector. It would be pertinent to mention here that as per the unamended provisions of the H.P. Land Revenue Act existing prior to 23.6.1989 the Revenue Officer had no jurisdiction to decide a dispute with regard to a question of title raised before it. The aggrieved party either before or after exhausting his remedies available under the Act could challenge the order of the revenue authorities by way of filing civil suit in case question of title such as a claim for ownership on the basis of adverse possession had been raised. Reference in this behalf may be made to a decision of this Court in Kaka Ram v. Financial Commissioner, Himachal Pradesh and others, AIR 1985 HP 21 . In this case the Court held as follows: "5. Mr. Chhabil Dass, learned counsel appearing on behalf of the petitioner, however, urged that no civil suit lies having regard to the provisions of Section 163 read with Section 171, Himachal Pradesh Land Revenue Act, 1953. The submission, in our opinion, is ill-founded. In this case the Court held as follows: "5. Mr. Chhabil Dass, learned counsel appearing on behalf of the petitioner, however, urged that no civil suit lies having regard to the provisions of Section 163 read with Section 171, Himachal Pradesh Land Revenue Act, 1953. The submission, in our opinion, is ill-founded. The opening words of Section 163 clearly indicate that before any action could be taken thereunder, the land in question should be Government land or land which has been reserved for the site of a village or for the common purpose of the co-sharers therein. Therefore, there should be no dispute on the question of title before an action is initiated under Section 163. If there is a dispute, then the dispute will have to be first resolved by a court of competent jurisdiction, especially if the dispute is of a serious nature and then only the power under Section 163 of the Act can be legitimately exercised. Section 171, which creates a bar on the jurisdiction of the civil courts, has to be read in the light of this legal position. Section 171, sub-section (2), clause (xxv) relates to an order of ejectment passed pursuant to the valid exercise of the powers under Section 163. If a revenue authority acting under Section 163 determines the question of title when it is seriously in dispute between the parties and consequently passes orders in the purported exercise of the power under the said section, such a determination would not oust the jurisdiction of the civil courts. It is well settled that even if the statute gives finality to the orders of special tribunals, such a provision does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure (see. Dhulabhai v. State of Madhya Pradesh AIR 1969 SC 78 ). 6. Under the circumstances, in a case like the present, the jurisdiction of the civil court to entertain the suit for clearing the cloud, if any, created on the title, if any, of the petitioner to the disputed land, is not barred." 2. Thereafter, the H.P. Land Revenue Act was amended by the H.P. Land Revenue (Amendment) Act, 1989. 6. Under the circumstances, in a case like the present, the jurisdiction of the civil court to entertain the suit for clearing the cloud, if any, created on the title, if any, of the petitioner to the disputed land, is not barred." 2. Thereafter, the H.P. Land Revenue Act was amended by the H.P. Land Revenue (Amendment) Act, 1989. After the amendment of the Land Revenue Act in case a question of title with regard to the allegedly encroached land even by claiming title on the basis of adverse possession is raised by the alleged encroacher a Revenue Officer not below the rank of Assistant Collector Grade-I shall proceed to determine the question as if it is a civil court and exercise all, such powers as are exercised by the civil court. An appeal from the order/judgment of the Assistant Collector Ist Grade lies to the District Judge. Further appeal lies to the High Court only if substantial question of law is involved in the case. It would be pertinent to refer to the amended provisions of Section 163 of the Act: "163. Prevention of encroachment of lands:- (1)Where Government land or land which has been reserved for site of a village or for the common purposes of the co-sharers therein has been encroached upon by any co-sharer or other person for any purpose including construction of a building or other structure thereon, then (a) the Revenue Officer may of his own motion or on the application of any other co-sharer eject the encroaching person (hereinafter in this section referred to as the encroacher) from such land and by order, proclaimed in the manner mentioned in section 23, prohibit repetition of the encroachment therein: Provided that no encroacher shall be ejected under this clause unless he has been given a reasonable opportunity of showing cause against the ejectment. (b) The Revenue Officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of such encroachment and may, by order, require the encroacher to pay the damages within such period and in such installments as may be specified in the order; (c) If the encroacher has erected any building or other structure or has grown crops or planted trees on the encroached land it shall be competent for the Revenue Officer, while ordering his ejectment, to dismantle such building or other structure and confiscate any produce or other material on such land and put the same in public auction and deposit the sale proceeds thereof into the Government Treasury; and (d) The Revenue Officer may impose upon the encroacher a fine upto one thousand rupees per bigha or part thereof in the case of first encroachment and, where the encroachment is repeated, a fine upto two thousand rupees per bigha or part thereof for each such subsequent encroachment. (2) Any amount payable as damages under clause (b) of subsection (1) or as fine under clause (d) of that sub-section may be recovered in the same manner as arrears of land revenue. (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 exercise able 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 judgement 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 Officer made under sub-section (4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge in an original suit. (5) An appeal from the decree of the Revenue Officer made under sub-section (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; and (7) No suit or other legal proceeding shall lie against the Revenue Officer or any person acting under this section in respect of in anything good faith done or purported to have been done under the provisions thereof or the rules made thereunder. Explanation for the purposes of this section, any person who holds land under a lease granted by the Government for a fixed term and continues to be in possession of the land beyond the expiry of the period of lease shall be deemed to be an encroacher unless such person gets the lease extended or renewed." 3. A unique aspect of this case was that the matter was decided by the Assistant Collector on 30.3.1989. At that time there was no bar to the jurisdiction of the Civil Court or to the alleged encroacher challenging the judgment of the Assistant Collector in proceedings under the Land Revenue Act before the civil court. Thereafter, the appellant filed an appeal to the Collector, Rohru. In this appeal also the plea of adverse possession was raised but this plea was negatived on the ground that the appellant had failed to prove his long possession over the suit land. The copy of the order of the Collector is Ext.PW-1/A. Thereafter, a Revision was filed before the Commissioner, Shimla who dismissed the same on 20th March, 1993 vide his order copy of which is Ext.PW-1/C. Another Revision was filed against this order before the Financial Commissioner which was dismissed on 21.10.1993. 4. Thereafter, the appellant filed the present suit praying for a declaration that he may be declared owner in possession of suit land by way of adverse possession and for declaration that the orders of the revenue authorities were without jurisdiction and illegal. The learned trial Court held that in view of the amended provisions of the Act it had no jurisdiction to decide the suit. The learned trial Court held that in view of the amended provisions of the Act it had no jurisdiction to decide the suit. On merits the trial Court held that the appellant had become owner by way of adverse possession but the suit was dismissed since the Court had no jurisdiction to try the suit. The trial Court held that the return of the suit could not be ordered in view of the peculiar circumstances of the case inasmuch as there was no court or authority before which the appellant could file his case. An appeal was filed before the learned District Judge, Shimla who after analysis of the various provisions of the H.P. Land Revenue Act held that the Civil Court had no jurisdiction. He further went on to hold that in view of the provisions of Section 163 (3) of the Act the question with regard to adverse possession could be raised even after the order of ejectment had been executed. Since in the present case only an order of ejectment has been passed the appellant could have approached the revenue authorities and the plaint was ordered to be returned with a direction that the plaintiff may if so advised, approach the Assistant Collector Ist Grade having territorial jurisdiction to determine the plea. Against this judgment the appellant has approached this Court in the present appeal. 5. I have heard. Mr. Bhupinder Gupta, learned senior counsel on behalf of the appellant and Mr.M.S.Chandel, learned Advocate General for the respondents-State and have also gone through the record of the case. 6. Mr. Gupta, contends that no party should be left without remedy. He contends that in the present case at the time when the Assistant Collector passed the order the amendment to the Land Revenue Act had not come into force and therefore the remedy of the petitioner was to file an appeal only. According to him after the decision of the revenue courts the plaintiff could have challenged the order of the revenue authorities in a civil suit since a question of title was involved. In this behalf he relies upon the judgment of this Court in Kaka Ram's case (supra). 7. According to him after the decision of the revenue courts the plaintiff could have challenged the order of the revenue authorities in a civil suit since a question of title was involved. In this behalf he relies upon the judgment of this Court in Kaka Ram's case (supra). 7. On the other hand Mr.M.S.Chandel, learned Advocate General states that after the decision by the revenue authorities the remedy, if any, of the appellant was only to file a writ petition and a suit was not maintainable. 8. Have considered the contentions of both the sides and also gone through the record and the provisions of the H.P. Land Revenue Act. It is quite obvious that in the present case the Revenue Officer could not have decided the question of title at the time when the matter was being argued before him. The order of the Assistant Collector was amenable to challenge in the Civil Court on the ground that he had no jurisdiction to decide a question of title. Even when the appeal was filed the Act had not been amended. The appellant filed an appeal and continued to prosecute the proceedings under the Land Revenue Act. In the meantime the Act stood amended. Clause (xxvi) was added to subsection (2) of Section 171 of the H.P. Land Revenue Act. By virtue of this amendment the jurisdiction of the Civil Court was specifically excluded in regard to the matters within the jurisdiction of the revenue officer especially the ejectment of any person under Section 163 of the said Act. Therefore, after 27.6.1989 the Civil Court had no jurisdiction to entertain any suit challenging the order passed by the Revenue Officer under Section 163. 9. It may be true as contended by learned Advocate General that in view of the peculiar circumstances of the case the proper remedy for the appellant should have been to file a writ petition under Article 226 of the Constitution of India after the conclusion of the proceedings under the Land Revenue Act. However, in my view a party should not be left without any remedy against an order which the revenue officer had no jurisdiction to pass. Here is a case where admittedly the revenue officer at the time when he was hearing the matter had no jurisdiction to decide the question of title. However, in my view a party should not be left without any remedy against an order which the revenue officer had no jurisdiction to pass. Here is a case where admittedly the revenue officer at the time when he was hearing the matter had no jurisdiction to decide the question of title. As per the law laid down by this Court the Revenue Officer had jurisdiction to take action under Section 163 of the Act only if the land in question was Government land and that there should be no dispute on the question of title. This court in Kaka Ram's case (supra) had clearly laid down that if there is a dispute with regard to the title then this dispute should be resolved by a court of competent jurisdiction and only thereafter powers under Section 163 could be used. 10. The position stands drastically changed by the amendment which came into for in 1989. Now the Revenue Officer can convert himself into a court and after following proper procedure as laid down in the provisions of Section 163 of the Land Revenue Act decide the question of title. This order can be challenged before the District Judge. Section 163 (3) as now introduced makes it clear that the question regarding title can be decided in relation to a land from which ejectment is made or is sought to be made. It is thus clear that the question can be decided even after an order of ejectment has been made. In the present case admittedly the appellant is in possession of the land. Therefore, the order of the learned lower appellate Court directing that the appellant may initiate proceedings before the Assistant Collector Ist Grade having territorial jurisdiction to decide the question of title raised by them is upheld. 11. In the peculiar facts and circumstances of the case it is directed that the plaint be returned to the plaintiff and in case the appellant on or before 30th June, 2006 files the returned plaint before the Assistant Collector Ist Grade concerned the said Assistant Collector shall determine the question of title raised by the appellant with regard to his having become owner by way of adverse possession. It is made clear that the question will be decided with reference to the date on which the proceedings were initially initiated under Section 163 of the Act. It is made clear that the question will be decided with reference to the date on which the proceedings were initially initiated under Section 163 of the Act. Before deciding the question the Assistant Collector shall issue notice to the State. The State shall be given time to file written statement. The Assistant Collector shall thereafter frame issues and record evidence. Keeping in view the fact that the proceedings have been pending for the last 20 years it is directed that the Assistant Collector concerned shall decide the matter as expeditiously as possible. He shall not give more than 3 opportunities to either side to lead evidence. If necessary the matter shall be taken up on day to day basis and shall be finally disposed of on or before 31st of March, 2007. 12. The appeal is disposed of in the aforesaid terms with no order as to costs.