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2006 DIGILAW 309 (HP)

JOGI RAM v. STATE OF H. P.

2006-10-04

RAJWANT SANDHU

body2006
ORDER 1. This revision petition has arisen from a recommendation made by the Divisional Commissioner, Shimla on 14.7.1997, who, while adjudicating upon revision petition No. 84/97 filed by the petitioner against an order dated 4.11.1996 passed by the Sub-Divisional Collector, Rajgarh, has observed that the directions may be issued to the Assistant Collector, 1st Grade, Pachhad to give effect to his order dated 28.9.1978 in case No. 26/78 and the structure raised by the encroacher be demolished and the material be put to auction and proceeds deposited in the Govt. Treasury. 2.Brief facts to the case are that in 1978 a complaint was lodged against Shri Jogi Ram, the present petition that he had encroached upon the land of the Education Department comprised in Khasra No. 356/185, measuring 10-13 bighas situated in Village Jubal-Cnandesh, Tehsil Rajgarh, even though he had earlier been ejected from the said land in 1976. Proceedings under Section 163 of the H.P. Land Revenue Act were initiated and on 28.9.1978, the Assistant Collector, 1st Grade in case No. 26/78, ordered ejectment from the land and directed him to pay a fine of Rs. 500/-. The petitioner filed a revision petition before the Sub-Divisional Collector, Puchhad, which was rejected on 8.5.1981 on the grounds that the revision filed on 5.2.1980 was barred by limitation. Shri Jogi Ram, then went before the Divisional Commissioner, Shimla by filing a revision petition, who vide order dated 12.4.1983 accepted the revision petition and remanded the case back to the Sub-Divisional Collector for fresh enquiry and decision. The learned Collector, then processed the matter and vide order dated 10.8.983, accepted the revision petition and remanded the matter to the Assistant Collector, 1st Grade, Rajgarh for fresh trial and inquiry. He held that the petitioner should have not been proceeded exparte which had been done wrongly on 28.7.1978. It had also been further held than that if Shri Jogi Ram was found to have encroached upon the land then ejectment proceedings under Section 163 of the H.P. Land Revenue Act be instituted against him. 3. The Assistant Collector, 1st Grade processed the case and vide order dated 28.4.1989 again ordered ejectment of the present petitioner. It had also been further held than that if Shri Jogi Ram was found to have encroached upon the land then ejectment proceedings under Section 163 of the H.P. Land Revenue Act be instituted against him. 3. The Assistant Collector, 1st Grade processed the case and vide order dated 28.4.1989 again ordered ejectment of the present petitioner. The petitioner went in appeal before the Collector, Sub-Division, Rajgarh, who vide order dated 8.1.1991 remanded the case back to Assistant Collector, 1st Grade for fresh consideration on the ground that a document produced by Shri Jogi Ram in support of his contention that the land had been sold to him by the co-owners in .1955 had not been taken into account. The Assistant Collector, 1st Grade on remand once again processed the matter and vide order dated 28.12.1993, again ordered his ejectment from the land in question and also imposed a fine of Rs. 21,000/-. The subsequent appeal filed by Shri Jogi Ram before the Collector, Sub-Division, Rajgarh was also dismissed on 4.11.1996. Still aggrieved by this order of the Collector, the petitioner filed a revision petition against this order before the Divisional Commissioner, Shimla Division, who vide order dated 14.7.1997 has recommended the matter to this Court for setting aside the orders passed by the courts below from 12.4.1983 onwards. He has further observed that the Assistant Collector, 1st Grade may be directed to give effect to his order dated 28.9.1978 passed in case No.26/78 and demolish the structure raised by the petitioner, the material may be put to auction and the amount recovered deposited in the Govt. Treasury. 4. The record of the case has been perused and counsel for the parties heard. The learned counsel for petitioner, Shri Jogi Ram opposed the recommendations made by the learned Divisional Commissioner vide his order dated 14.7.1997. Tracing the history of the case he stated that the original complaint was made in 1976 regarding encroachment by Shri Jogi Ram. Election orders were passed against him and a fine of Rs. 500/- was imposed. The orders were challenged before the Sub Divisional Collector who dismissed the petitioner in 1981. It was Shri Jogi Ram who had filed the revision petition before the Divisional Commissioner which resulted in the order of 4.11.1996. Election orders were passed against him and a fine of Rs. 500/- was imposed. The orders were challenged before the Sub Divisional Collector who dismissed the petitioner in 1981. It was Shri Jogi Ram who had filed the revision petition before the Divisional Commissioner which resulted in the order of 4.11.1996. The order of reference made by the learned Divisional Commissioner was bad in law as he had upset all the orders passed by the revenue officers/courts over a long period time. On merits, counsel for Shri Jogi Ram argued that Khasra No.356 measuring 10 bighas had been in his possession since 1965. This area was shamlat land and the claim that it had been vested in the Government or had been gifted to the Education Department was incorrect. The State had failed to establish that he was an encroacher. In fact, he had produced Exhibit PX before the court below through which it was shown that the share in shamlat land was sold to Shri Jogi Ram by one of the co-owners for an amount of Rs. 1800/-. In the khasra girdawari also entries regarding his possession were recorded and therefore proceedings under Section 163 of the H.P. Land Revenue Act were not justified. In fact, enquiry as required under the H.P. Vesting of Common Land Scheme was not carried out in the matter and hence the order of the lower court was invalid. He cited "State of H.P. Versus Babu Ram (deceased) through LRs Ms Nakshtro & another, 1996 (2) page 175" in support of his contention. The learned counsel further argued that the quantum of fine was fixed at Rs. 500/- in the order of the Assistant Collector, 1st Grade dated 28.9.1978 and this was never challenged by the State. In remand proceedings however, the fine had been enhanced to Rs. 21000/- and the court was wrong in doing so.1 He requested that the reference of the Divisional Commissioner should not be accepted upon by the Financial Commissioner (Appeals). 5. Shri B.S. Thakur, D.A. (Revenue) appearing for the State argued that the Collector was a custodian of the property of the Government. Under Section 17, tried Financial Commissioner had the powers to call for any case and issue directions for orders to be modified. The Assistant Collector and Collector could not accept an application for revision of any order. 5. Shri B.S. Thakur, D.A. (Revenue) appearing for the State argued that the Collector was a custodian of the property of the Government. Under Section 17, tried Financial Commissioner had the powers to call for any case and issue directions for orders to be modified. The Assistant Collector and Collector could not accept an application for revision of any order. They were required to report the matter to the Financial Commissioner. When the revision petition was filed before the Commissioner the court was empowered to look into the matter and enhancement of fine was allowed since this was a case of repeated encroachment. The lower courts had passed eviction orders relating to this land four times while the attitude of the petitioner had been most recalcitrant. The area in question had been gifted to the Education Department by the right holders of the village in 1965 and Mutation No.47 had also been attested in this regard. The owner of the land was therefore the HP. Government through Education Department. The 1974 Act was not applicable in the case at all since this area was not shamlat when this legislation enacted but was in the ownership of the State Government. Mutation No.47 had never been challenged by Shri Jogi Ram or any one else. In 1978 Shri Jogi Ram again tried to encroach on the land in question and proceedings started once again under Section 163 of the H.P. Land Revenue Act. Exhibit PX on the basis of which Shri Jogi Ram claimed that he had bought the property in question from a co-owner of the shamlat land for an amount of Rs. 1500/- was a fraudulent document. It was dated 15 Phagun 1955 and if one went by the Vikrami calendar this document should be 107 years old which was not feasible. Even as per the Shaka Era, which is / presently running 1927-28 this again was not feasible. Moreover, the document in question mentioned that Rs. 1500/- had been paid by Shri Joagi Ram and an amount of Rs. 300/- would be paid later. From this it was evident that the alleged sale had never been completed. If at all Shri Jogi Ram had actually acquired the share of the shamlat from a co-owner he should have got his claim entered into the revenue record while he had failed to do. 300/- would be paid later. From this it was evident that the alleged sale had never been completed. If at all Shri Jogi Ram had actually acquired the share of the shamlat from a co-owner he should have got his claim entered into the revenue record while he had failed to do. Before the Assistant Collector, 1st Grade he had produced Shri Rapu Ram as a witness who was his own son aged 34 years and he could say little about the old history of the matter for the period when it was claimed by Shri Jogi Ram that the transaction of sale took place in this favour. In fact, one of the witnesses, Shri Roop Singh, had stated that the registered document had not been prepared regarding, the sale nor revenue was being paid on account of this area by Shri Jogi Ram, Possession of Shri Jogi Ram was stated to be since 1969 and it was also stated that his encroachment on the land had been removed 2-3 times. Even the villagers who appeared before the court stated that no shareholder in the shamlat had ever sold their share of shamlat to Shri Jogi Ram but the latter was trying to establish his possession over the area. The learned D.A. (Revenue) further stated that the learned Divisional Commissioner had given his detailed findings in the matter. The fine of Rs. 21,000/- imposed was not more than that admissible under the law. The orders passed in the revision by the lower courts were not in order as they had no jurisdiction to pass such orders but could only make such reference to Financial Commissioner. Article 299 as cited by the counsel for the petitioner was irrelevant to the matter as the property of the Government had been given to the Education Department for the use of the public at large. 6. In rebuttal, it was again stressed by the counsel for Shri Jogi Ram that there was no proof of the gift having been made in favour of the Education Department by the shamlat owners of the village. The Mutation No. 47 did not confer title on the Education Department. 6. In rebuttal, it was again stressed by the counsel for Shri Jogi Ram that there was no proof of the gift having been made in favour of the Education Department by the shamlat owners of the village. The Mutation No. 47 did not confer title on the Education Department. The evidence of Shri Roop Singh was being wrongly read by the State and the orders of the lower courts could not be -upset so many years after the event, through the order passed by the learned Divisional Commissioner dated 14.7.1007. 7. Perusal of the records shows that the Divisional Commissioner has passed a very detailed order on 14.7.1997 addressing all the aspects of the matter. These relate to adequate opportunity of having been heard having been accorded to Shri Jcgi Ram and Shri Jogi Ram intentionally avoiding service for appearance before the Assistant Collector, 1st Grade. The learned Divisional Commissioner has also concluded that since the land in question had been gifted to the Education Department in 1965 and Mutation No.47 had been attested in this regard, area was no longer shamlat or governed by the H.P. Village Common Land Vesting and Utilization Act, 1974. The learned Divisional Commissioner, Shimla has also rightly observed that the order of 12.4.1983 passed by the Divisional Commissioner, Shimla accepting the revision petition under Section 17 of the H.P. Land Revenue Act and remanding the case to the Sub Divisional Collector and the Collector accepting the revision petition on 10.8.1983 and again remanding the case to the Assistant Collector 1st Grade to proceed afresh were proceedings without jurisdiction since the Collector and Commissioner could only recommend the case, to the Financial Commissioner for exercise of revisional powers and they themselves did not have the powers to accept the revision petition. The learned Divisional Commissioner therefore held that all subsequent proceedings from 12.4.1983 became null and void and the orders of the Assistant Collector, 1st Grade dated 28.9.1978 had to be restored. The learned Divisional Commissioner has recommended that the following orders be set aside:- (1) Order of Commissioner dated 12.4.1983 in case No. 2/81. (2) Order of Collector, Rajgarh dated 10.8.1983 in case No. 2/10. (3) Order of Assistant Collector I Grade Pacchad dated 28.4.1989 in case No 26/78. (4) Order of Collector Rajgarh dated 8.1.1991 in case no. 15/10 Order of Assistant Collector I Grade Pachhad dated 28.12.1993 in case No. 26/78. (2) Order of Collector, Rajgarh dated 10.8.1983 in case No. 2/10. (3) Order of Assistant Collector I Grade Pacchad dated 28.4.1989 in case No 26/78. (4) Order of Collector Rajgarh dated 8.1.1991 in case no. 15/10 Order of Assistant Collector I Grade Pachhad dated 28.12.1993 in case No. 26/78. 8. He further recommended that directions may further be issued to the Assistant Collector, 1st Grade Pachhad to give effect to the order dated 28.9.1978 in Case No. 26/78 for demolishing the structures raised by the encroacher on the land in question. 9. The order of the learned Divisional Commissioner is adequately reasoned. It is clear from the record also that the claim of Shri Jogi Ram of having purchased a share in shamlat is not established as the document Exhibit PX is of doubtful provenance. Moreover, Mutation No. 47 through which the gift of land measuring 10 bighas in favour of the Education Department was entered into the revenue record has never been challenged by Shri Jogi Ram and hence has attained finality over the time. The area in question ceased to be shamlat land after this mutation was attested and the provisions of the H.P. Village Common Land Vesting and Utilization Act, 1974 do not apply to the same. The status of Shri Jogi Ram on this area is therefore undoubtedly that of an encroacher and the proceedings have been going on against him since the 70s. These should now be brought to a conclusion by evicting him from the land in question. The recommendation of the learned Divisional Commissipner setting aside the orders indicated at 1 to 5 above is accepted. Announced in the open court today the 4.10.2006. Record of the courts below be returned and the case file of this court be consigned to the record room after the due completion.