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Himachal Pradesh High Court · body

2010 DIGILAW 926 (HP)

Hardei widow of Sh. Basant Ram v. State of H. P.

2010-07-06

P.MITRA

body2010
ORDER These two revision petitions under section 17 of the H.P. Land Revenue Act have been preferred against the order of the Commissioner, Shimla division dated 20.4.2009 passed in revision petitions no. 239/2005 and 240/2005 whereby both the revision petitions have been rejected. Since the facts of both the revision petitions are identical and similar in nature therefore both the revision petitions have been taken up together. 2. In short, facts of the cases are that on the basis of the report submitted by the halqua Patwari Dharampur that the petitioner Smt. Hardei has encroached upon Government land being bearing khasra nos. 45/3 measuring 4-4 bighas and Smt. Kamla Garg on 45/2 measuring 0-6 biswas in village Siharari Musalmana, Tehsil Kasauli, Distt. Solan, ejectment proceedings under section 163 of the Act were initiated by the Assistant Collector, 1st Grade Kasuali which ultimately culminated in the passing of ejectment orders against both the present petitioners vide order dated 6.4.2005 and 7.4.2005, respectively. Appeals were filed before the Collector, Solan sub-division which were dismissed by a single order on 31.8.2005 passed in case nos. 59/8 of 2005 and 60/8 of 2005. Still not satisfied, both the petitioners filed separate revision petitions no. 239/2005 and 240/2005 before the Commissioner, Shimla division who vide impugned orders dated 204.2009 rejected the same vide a single order. Thus, these are second revision petitions before this court. 3. Arguments on behalf of both the sides were heard. Learned counsel for the petitioners argued that proceedings under section 163 of the Land Revenue Act against the petitioners were initiated in both the cases. The land was allotted under nautor to Sh. Basant Ram husband of Smt. Hardei to the extent of 5-0 bighas. Therefore it was developed. After the death of Sh. Basant Ram he was succeeded by Smt. Hardei, the present petitioner. On 303.2005 when it was reported to the Assistant Collector that petitioners have encroached upon Government land, the required notice was issued and matter was fixed for 2.4.2005. On 2.4.2005 when petitioners put in appearance, opportunity of being heard was not given. In the interim order it is stated that matter will be taken up in the Patwarkhana. According to learned counsel, there was no need for this. On 2.4.2005 when petitioners put in appearance, opportunity of being heard was not given. In the interim order it is stated that matter will be taken up in the Patwarkhana. According to learned counsel, there was no need for this. In her statement Smt. Hardei petitioner stated that the land was given in nautor to her husband, then the Assistant Collector told the petitioner that her husband had been given some other land in 1979. According to the learned counsel, from 1979 till 2005, no authority had disturbed the possession of the petitioners. He further argued that the State Government has issued orders (instruction no. 13.36) that if there is difference in possession from the land granted in nautor, then possession will be treated as land given in nautor. Further that no opportunity to cross examine the Patwari and Kanungo was given by the Assistant Collector and thus the principles of natural justice has been violated. 4. In the case of the other petitioner Smt. Kamla Garg, the allegation is that she has raised construction on land which was not given to her in nautor. According to the learned counsel for the petitioner, Smt. Hardei made the construction and Smt. Kamla Garg is her tenant and Smt. Kamla Garg has unnecessarily been dragged in the litigation. Further stated that there is no proof that the construction was made by Smt. Kamla Garg. It was a case of tenancy with monthly rent. Lastly, learned counsel stated that the revision petitions may be accepted and the matter remanded to the Assistant Collector for fresh decision after giving proper opportunity of being heard to the parties. 5. In reply, the learned D.A. (Rev) for the State argued that pleas now being raised by the petitioners were never raised in the lower courts. The nautor land given had totally different khasra nos. and these lands are totally different. Further the petitioners have no legal rights and are merely trespassers. The land is recorded in the possession of Education Department. They never moved Revenue officers to change the entries. Lastly, it was stated that the petitioners should be evicted as no legal point is involved. 6. In rebuttal, the learned counsel for petitioners stated that as regards the point of taking a totally new plea, the principles of natural justice have been violated. Further that the Education Department has not come forward to claim possession. Lastly, it was stated that the petitioners should be evicted as no legal point is involved. 6. In rebuttal, the learned counsel for petitioners stated that as regards the point of taking a totally new plea, the principles of natural justice have been violated. Further that the Education Department has not come forward to claim possession. 7. I have given consideration to the arguments advanced by the learned counsels for both the parties and gone through the contents of the revision petitions and also perused the records. 8. The main contention of the petitioner Smt. Hardei in revision petition no. 101/2009 is that nautor land measuring 5-0 bighas was sanctioned in favour of her husband Sh. Basant Ram, and there was no challenge as regards to validity of that grant; The record of the, trial court shows that khasra no. 72/47/1 measuring 5-0 bighas situated at village Shiharari Musalmana was allotted to the husband of the petitioner Sh. Basant Ram under the landless scheme under mutation no. 99 Attested on 19.4.1980. This fact has also been admitted by the above petitioner in her statement recorded before the Assistant Collector on 2.4.2005. She has also admitted in her statement that she has constructed a two storeyed pacca house, on khasra no. 43/03 measuring 4-4 bighas and khasra no. 45/2 measuring 0-6 biswas at mauza Siharari Musalmana about 10-11 years ago. It is noteworthy that these khasra nos. are totally different from the land granted as nautor. Out of this, three rooms in the ground floor have been rented out to Smt. Kamla Garg. She also produced two witnesses, namely; Sh. Nika Ram and Sh. Dila Ram whose separate statements have also been recorded by the Assistant Collector on 2.4.2005. Sh. Nika Ram RW-1 in his statement has deposed that Smt. Hardei has occupied the land comprising khasra no. 45/3 measuring 4-4 bighas and khasra no. 45/2 measuring 0-6 biswas by cultivating the land and constructing a house and that the house has been constructed jointly by Smt. Hardei and Smt. Kamla Garg and both are living in this house with their families. The above witness has categorically stated that he did not know whether Smt. Hardei charged any rent from this house or not RW-2 Sh. Dila Ram in his statement has merely endorsed the statement of Sh. Nika Ram. The evidence of these witnesses however do not help the petitioners. The above witness has categorically stated that he did not know whether Smt. Hardei charged any rent from this house or not RW-2 Sh. Dila Ram in his statement has merely endorsed the statement of Sh. Nika Ram. The evidence of these witnesses however do not help the petitioners. On behalf of the State, the statements of Halqua Patwari Dharampur Sh. Ramesh Chand Chandel and Sh. Atma Ram Field Kanungo Kasauli have also been recorded by the Assistant Collector wherein they have corroborated the encroachment by the petitioners. 9. From the above record of the trial court and statements of the parties, it is manifestly clear that Smt. Hardei has encroached upon Government land and the encroached land is different from the land granted as nautor. 10. The next contention of the petitioner is that if there is different in the present land and the land allotted in nautor to her husband, then the present possession may be treated as land given in nautor for which a reference has been made to instruction no. 13.36 of the Hidayat Bandobast (Settlement Instructions). These instructions apply only to the area where settlement operations are underway. Since settlement operations in this area were not undertaken at the time the encroachment of the petitioner was detected, therefore this plea of the petitioner cannot be accepted. Secondly this provision has been misused enough and cannot be said to be a rule; it is only an enabling provision in certain situations. 11. As regards the contention of the petitioner that no opportunity to cross examine the State witnesses had been given to her and principles of natural justice has been violated, this plea of the petitioners is not tenable since the opportunity to cross examine the State witnesses has not been availed as is evident from the file of the trial court which show that opportunity was given. 12. Lastly, it has also been contended by the petitioners that ejectment proceedings have been initiated merely on the basis of the report made by the halqua Patwari without any proper demarcation which was required to be given by the competent Revenue Officer. The perusal of the records of the lower courts reveals that this plea has never been raised by the petitioner before the lower courts especially during the proceedings before the trial court and this plea at this stage appears to be an afterthought. The perusal of the records of the lower courts reveals that this plea has never been raised by the petitioner before the lower courts especially during the proceedings before the trial court and this plea at this stage appears to be an afterthought. From the record of the trial court, it is no where found that the land encroached by petitioner Smt. Hardei is abutting her private land; this plea could be considered only if the land of the petitioner was found adjoining the land encroached by her. Therefore, this contention of the petitioner is rejected. 13. So far as the facts of the other revision petition no. 100/2009 pertaining to petitioner Smt. Kamla Garg are concerned, she has also taken the same grounds as taken by Smt. Hardei in her revision petition. The record of the trial courts shows that encroachment proceedings in respect of land comprised in khasra no. 45/2 measuring 0-6 biswas has been initiated against her where she is alleged to have constructed a house. The Assistant Collector after processing the case has ordered her ejectment from this land and also imposed a fine of Rs. 2000/- besides ordering that the structure existing on khasra no. 45 I 2 will also vest in the State Government free from all encumbrances. In her statement before the Assistant Collector recorded on 2.4.2005, she has categorically admitted that neither she nor her family own nay land in Mohal Seharari Musalmana and that her father-in-law owns land in village Bharaench Kuftu, Tehsil Kandaghat. Distt. Solan. She has also deposed that she has not constructed the house over the land mentioned in the show cause notice issued to her and that Smt. Hardei has constructed this house and she has been living in this house as a tenant since 1996 and paying rent of Rs. 1000/- per month. She has further stated that if Smt. Hardei is ordered to be ejected from this land then she will vacate this house No. Witnesses have been produced by her in her support. On behalf of the State, the statements of halqua Patwari and Field Kanungo have been recorded who have admitted that the report regarding encroachment EX-A/3 and spot tatima EX-A/4 have been prepared/verified by them. On behalf of the State, the statements of halqua Patwari and Field Kanungo have been recorded who have admitted that the report regarding encroachment EX-A/3 and spot tatima EX-A/4 have been prepared/verified by them. Halqua Patwari Shri Ramesh Chand has categorically deposed in his statement that two storeyed pacca house has been constructed on the encroached land in which Smt. Kamla Garg is living and that Smt. Hardei is not in possession of this house nor her possession was intimated to him at the time of preparing encroachment report, Thus from the record of the trial court it is clear that Smt. Kamla Garg present petitioner has encroached upon Government land comprising Khasra no. 45/2 measuring 0-6 biswas whereupon a two storeyed pacca house has been constructed, and in this house Smt. Kamla Garg is presently residing with her family. The land is obviously not hers. The encroachment proceedings against the petitioner. Smt. Kamla Garg have been initiated on the basis of the fact that she has been found to be in unauthorized possession of the Government land and therefore her ejectment from this land has been rightly ordered by the Assistant Collector vide order dated 7.4.2005. 14. As regards the plea of the petitioner that proper demarcation has not been, carried out by competent Revenue Officer before initiating encroachment proceedings against her, this plea is not, acceptable in view of her own statement recorded before the Assistant Collector wherein she has admitted that neither she nor any of her family members owned any land in village Seharari Musalamana where the encroachment was found. Since the petitioner does not own any land in the said village where her encroachment was found, therefore the question of proper demarcation by the competent Revenue Officer does not at all arise. 15. Keeping in view the above, I find no illegally or irregularity in the orders passed by the courts below which call for any interference by this court. As such the orders of the courts below are upheld and both the revision petitions are dismissed. 16. Announced in the open court today the 6th July, 2010. 17. The records of the courts below be returned and this file be consigned to he record room after due completion.