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Himachal Pradesh High Court · body

2012 DIGILAW 868 (HP)

Satya Chauhan v. Tulsi Ram

2012-11-22

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. Petitioner has purchased land situated in Khasra No. 347/1/71, measuring 0.4 biswas from one Shri Udai Ram vide sale deed, Annexure-PA. The proceedings under Section 163 of the Himachal Pradesh Land Revenue Act, 1954 were initiated against the petitioner by the learned Assistant Collector, 1st Grade, Settlement, Shimla. The ejectment order was passed on 16.06.1999. Petitioner preferred an appeal before the Collector (Settlement) against the order, dated 16.06.1999. He allowed the appeal on 31.03.2000 and set aside the order of the Assistant Collector, 1st Grade, Settlement, dated 16.06.1999. Petitioner moved an application before the Land Settlement Collector, Shimla Division for correction of entry of the land in Khasra No. 347/2/1, measuring 0-8 biswa, Mauza Chhakrail, Tehsil Shimla Rural, District Shimla, H.P. on 24.11.2003. The Collector, Settlement, Shimla Division, Shimla allowed the application and ordered correction of revenue record vide order, dated 22.01.2004. The private respondents preferred an appeal against the order, dated 22.01.2004 before the Divisional Commissioner on 04.03.2004. The Divisional Commissioner, Shimla Division, Shimla-2 dismissed the appeal on 07.06.2004. The private respondents filed a revision petition before the Financial Commissioner (Appeals), H.P. He allowed the same on 18.07.2005. The Financial Commissioner set aside the order, dated 22.01.2004, passed by the Collector, Settlement and order, dated 07.06.2004, passed by the Divisional Commissioner, Shimla Division. 2. Mr. Aman Sood, learned counsel for the petitioner has supported the order, dated 22.01.2004, passed by the Collector, Settlement and order, dated 07.06.2004, passed by the Divisional Commissioner, Shimla Division. According to him, learned Financial Commissioner (Appeals) Himachal Pradesh, Shimla-2 has erred in law while setting aside these orders. According to him, his client has not encroached upon the Government land. 3. Mr. Ramesh Thakur, learned Assistant Advocate General and Mr. Romesh Verma, learned counsel for respondents No. 1 to 11 have supported the order passed by the learned Financial Commissioner on 18.07.2005. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It is not in dispute that the ejectment proceedings have been initiated against the petitioner and ejectment order was passed by the competent authority on 16.06.1999, though it was set aside on 31.03.2000 by the Collector, Settlement. Thereafter, an application has been preferred by the petitioner, as noticed above, for correction of the revenue record. The necessary corrections were ordered to be made by the Collector, Settlement on 22.01.2004. Thereafter, an application has been preferred by the petitioner, as noticed above, for correction of the revenue record. The necessary corrections were ordered to be made by the Collector, Settlement on 22.01.2004. According to the report of the Naib Tehsildar, Settlement, dated 14.08.2003, as noticed by the learned Financial Commissioner in his order, dated 18.07.2005, the petitioner has constructed two storeyed house on old Khasra No. 592/348 as per the pre-settlement record. According to the jamabandi for the year 1996-97, old Khasra No. 592/348 was recorded in the ownership of the State. Even, the newly carved out Khasra No. 1062 from old Khasra No. 592/348 in the new settlement was recorded in the ownership of the State. However, this position was altered by the order passed by the Collector, Settlement on 22.01.2004. Learned Financial Commissioner (Appeals), Himachal Pradesh, Shimla in his order, dated 18.07.2005 has observed that the Assistant Settlement Officer in case File No. 232/2003 has noted that the proposal of correction as submitted by the Naib Tehsildar (Settlement) seems to be in contravention of the position as reflected in the pre-settlement record. However, the Tehsildar, Settlement, in his report, dated 20.10.2003 mentioned that since most of the area of this estate is uncultivated (Gair Mazrua), the possibility of error remains when measurements are undertaken on the basis of old record, which led to order, dated 22.01.2004. Learned Financial Commissioner has come to the right conclusion that the ownership and rights as recorded in the record of rights preceding settlement has to be kept in view while preparing the new record. Once it was found categorically that the petitioner has encroached upon part of old Khasra No. 592/348 (new Khasra No. 1062), the corrections could not be ordered to be made in the revenue record by entering the ownership of the petitioner. The Collector, Settlement has further erred in law by ordering the exchange of the land of the State Government, over which rights of the estate right holders were recorded with the land of the petitioner. Khasra No. 592/348 was recorded in the ownership of the State of Himachal Pradesh with the estate right holders being in possession of the same as per jamabandi for the year 1996-97 existing before the Settlement operations and the entries were shown as “Bartan Bashindgan Deh”. Khasra No. 592/348 was recorded in the ownership of the State of Himachal Pradesh with the estate right holders being in possession of the same as per jamabandi for the year 1996-97 existing before the Settlement operations and the entries were shown as “Bartan Bashindgan Deh”. Again, as noticed above, Khasra No. 1062, carved from old Khasra No. 592/348, was reflected in the ownership of the State of Himachal Pradesh and estate right holders were shown in possession of the same as per the statement of rights “Naksha Bartan” and the entries were shown as “Kabza Swayam Tabe Hukook Mutabik Naksha Bartan”. 6. There is no merit in the contention of Mr. Aman Sood, learned counsel for the petitioner that the private parties have no locus standi to assail the order, dated 07.06.2004, passed by the Divisional Commissioner, Shimla before the Financial Commissioner. The private respondents were estate right holders being in possession as per “Naksha Bartan”. Thus, they have the locus standi to assail the order, dated 22.01.2004, passed by the Collector, Settlement and order, dated 07.06.2004, passed by the Divisional Commissioner. 7. This Court has passed the following order on 02.05.2012: “In order to resolve the issue whether the petitioner has encroached upon Khasra No. 392/348 (new Khasra No. 1062/1), the Settlement Officer is directed to undertake the exercise to check the measurement of the petitioner’s land vis-à-vis government land, as has been undertaken in case No. 151 of 2006, titled “Raj Kumar Versus State of H.P.” by his predecessor vide order dated 25.3.2010, within a period of 8 weeks from today. He shall submit the report in a sealed cover on the next date of hearing. List on 3.7.2012.” 8. The competent authority was directed to carry out the measurement afresh in order to ascertain whether the petitioner, in fact, has encroached upon the Government land or not. In sequel thereto, the spot was inspected on 07.08.2012, 08.08.2012 and 09.08.2012. The report of the Settlement Officer, Shimla Division, Shimla, dated 21.08.2012, was received by this Court and the copies of the same were supplied to the learned Advocates appearing on behalf of the parties. In sequel thereto, the spot was inspected on 07.08.2012, 08.08.2012 and 09.08.2012. The report of the Settlement Officer, Shimla Division, Shimla, dated 21.08.2012, was received by this Court and the copies of the same were supplied to the learned Advocates appearing on behalf of the parties. The operative portion of the report reads thus: “Accordingly, the land in question is shown in the new and old revenue record enclosed herewith in red ink, the verticles of which are shown as point No. “H”, “I”, “K” and “J” with its length and width as 16x9 Mtrs. total area 144 sq. Mtrs. I have checked and demarcated the land in question vis-à-vis the Government land. As has been mentioned above, the disputed site has been checked from all the sides. The land in question is not in the corner of Government land i.e. Khasra No. 592/552/348/2. In fact it is in the mid of Government land. So, it can be safely concluded that the disputed site falls in Khasra No. 592/552/348/2 (1062 new) which is a Government land and has been encroached upon by the petitioner. The total area of disputed structure marked in the map is 0-01-44 Hects. This structure falls in new Khasra No. 1062 which is a Government land and abutting to the disputed structure, road passes through Khasra No. 1132 new which is also a Government land. Khaka Dashti which shows how the measurement has been done in old and new records is attached as Annexures-“A” and “B” and the copy of old and new mussavi are arrached as Annexures-“C” and “D”. Thus. it is evident from the report, dated 21.08.2012 that the petitioner has encroached upon the Government land. The report, dated 21.08.2012, is strictly in accordance with law and the measurement has been undertaken strictly as per the norms prescribed. The report is accepted by the Court. In the present case, the petitioner has also moved an application, seeking regularization of the land encroached by her. It also establishes that the petitioner, in fact, has encroached upon the Government land. 10. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs.