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2012 DIGILAW 9 (HP)

Man Singh v. Assistant Engineer, HP PWD

2012-01-03

RAJIV SHARMA

body2012
JUDGEMENT Rajiv Sharma, Judge (Oral): Material factsnecessary forthe adjudication of this petition are that a complaint was filed by the Assistant Engineer, HP PWD, Churag against the petitioner under the H.P. Public Premises and Land (Eviction & Rent Recovery) Act, 1971 (hereinafter referred to as “the Act” for convenience sake). According to the complaint, the petitioner has encroached upon PWD land comprised in Khasra No. 174/1, measuring 0-1-12 bighas, situated in Muhal Tattapani and has raised a wall (Danga) on this land. This land is situated at Shimla-Mandi road and State High Way No. 13. The notice was issued to the petitioner on 1st March 2005. He filed reply to the same on 4th April, 2005. The Sub Divisional Collector, Karsog, District Mandi, H.P. passed the order of eviction against the petitioner on 29.01.2007 after taking into consideration the copy of Jamabandi for the year 1999-2000 and the report of the Field Kanungo, Bagshar dated 25.01.2005. He also recorded the statements of PW-1 Shri Amar Nath Sharma, PW-II Shri Tek Chand Patwari, Tattapani, PW-III Shri Surinder Kumar, Field Kanungo Bagshar, RW-1 Smt. Radha Devi, RW-II Shri Biptu Ram. Learned Sub Divisional, Collector, Karsog, District Mandi (H.P.) also sought the report from the Tehsildar Karsog before passing the orders. The Tehsildar Karsog visited the spot on 25.09.2006 and conducted the demarcation. 2. Petitioner preferred an appeal before the learned Divisional Commissioner, Mandi Division, Mandi against the order dated 29.01.2007. He allowed the appeal and remanded the matter to the Collector, Sub Division, Karsog, District Mandi (HP) on 16.08.2010 by ordering that the demarcation be got carried out from the competent authority, within a period of 45 days in the presence of petitioner. Thereafter, the Naib Tehsildar visited the spot and submitted the report on 31.12.2010. The Collector, Sub-Division Karsog, District Mandi, H.P. passed the order of eviction against the petitioner on 28.02.2011. Petitioner preferred an appeal before the learned Divisional Commissioner, Mandi Division, Mandi (HP). He dismissed the same on 19.05.2011. 3. Mr. Romesh Verma, learned counsel for the petitioner has strenuously argued that the orders of eviction dated 28.02.2011 and 19.05.2011 are not sustainable in the eyes of law. According to him, the demarcation could only be conducted by the A.C. 1st Grade and not by the Naib Tehsildar. 4. Mr. He dismissed the same on 19.05.2011. 3. Mr. Romesh Verma, learned counsel for the petitioner has strenuously argued that the orders of eviction dated 28.02.2011 and 19.05.2011 are not sustainable in the eyes of law. According to him, the demarcation could only be conducted by the A.C. 1st Grade and not by the Naib Tehsildar. 4. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that initially the demarcation was carried out by the Field Kanungo on 25.01.2005. Thereafter, the demarcation was also carried out by the Tehsildar, Karsog on 25.09.2006. He finally contended that this Court has also directed the Chairman, Sub Divisional Legal Services Authority {Civil Judge (Junior Division), Karsog} to conduct local inspection, with notice to the petitioner and the HP PWD and submit a report in a sealed cover as to what is the width of the road available in the area as against the required and what is the extent of encroachment, if any, made by the petitioner and such other relevant information. He has referred to the report furnished by the Civil Judge (Junior Division), Karsog. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. What emerges from the facts placed on record by the parties is that earlier the order has been passed by the Sub Divisional Collector, Karsog, District Mandi (HP) on 29.01.2007 after taking into consideration the report of the Field Kanungo dated 25.01.2005and theTehsildar Karsog (Assistant Collector 1st Grade) dated 25.09.2006. He Has also recorded the statements of PW-1 Shri Amar Nath Sharma, PW-II Shri Tek Chand Patwari, Tattapani, PW-III Shri Surinder Kumar, Field Kanungo Bagshar, RW-1 Smt. Radha Devi, RW-II Shri Biptu Ram while passing the order dated 29.01.2007. Thereafter, the petitioner preferred an appeal before the Divisional Commissioner, Mandi. He allowed the appeal and remanded the matter to the Collector, Sub-Division, Karsog, District Mandi, H.P. with a direction to get the demarcation conducted by the competent authority. The report was furnished by the Naib Tehsildar after visiting the spot on 31.12.2010. Thereafter, the eviction orders were passed by the Sub Divisional Collector, Karsog, District Mandi on 28.02.2011. 7. The main contention of Mr. Romesh Verma, learned counsel for the petitioner is that since the private land adjoins the Government land, the only competent authority to demarcate the land is the Assistant Collector, 1st Grade. 8. Thereafter, the eviction orders were passed by the Sub Divisional Collector, Karsog, District Mandi on 28.02.2011. 7. The main contention of Mr. Romesh Verma, learned counsel for the petitioner is that since the private land adjoins the Government land, the only competent authority to demarcate the land is the Assistant Collector, 1st Grade. 8. I have gone through the report submitted by the Civil Judge (Junior Division), Karsog. A bare perusal of the same makes it abundantly clear that the petitioner has encroached upon 0-1-12 bighas of land comprised in Khasra No. 174 belonging to the State of Himachal Pradesh and possessed by HP PWD. As per this report, the petitioner has constructed a temporary shed on the same. The demarcation has been carried out by the Assistant Collector, 1st Grade, Karsog strictly as per the instructions issued by the Financial Commissioner and by this Court. The pucca points were identified to the parties and they have agreed that the pucca points have been rightly fixed. The parties have accepted the demarcation report dated 12.08.2011 and no objections have been raised to the same. The Assistant Collector 1st Grade has also taken into account the Aks Musabi and prepared the Nakal Aks. He has also recorded the statement of Shri Devender Kapur, Assistant Engineer with regard to fixing of pucca points. He has also recorded the statement of petitioner. It is clear from the statement of petitioner Man Singh that he has not raised any objection and has accepted the report. 9. It is conclusively proved from the report furnished by the Field Kanungo dated 25.01.2005, Naib Tehsildar dated 25.09.2006 and the latest report of the Assistant Collector dated 12.08.2011 that the petitioner has encroached upon the Government land. There is no infirmity and illegality in the orders passed by both the competent authorities below. The orders passed by both the authorities below are speaking and they have also taken into consideration all the relevant material while passing the orders. 10. Mr. Vikas Rathore, learned Deputy Advocate General has also submitted that as per notification dated 24th April, 1997, the earlier instructions dated 09.11.1989 have been withdrawn and now Naib Tehsildar may also conduct the demarcation of private lands and where the lands to be demarcated touches or overlaps the boundaries of another estate or boundaries between one estate and the other. Vikas Rathore, learned Deputy Advocate General has also submitted that as per notification dated 24th April, 1997, the earlier instructions dated 09.11.1989 have been withdrawn and now Naib Tehsildar may also conduct the demarcation of private lands and where the lands to be demarcated touches or overlaps the boundaries of another estate or boundaries between one estate and the other. However, it has been clarified that in case the question of title or plea of adverse possession has been raised under Section 163 of the Himachal Pradesh Land Revenue Act, in that eventuality, the Naib Tehsildar shall refer such encroachment cases to the Tehsildar, exercising the powers of Assistant Collector Grade-1. 11. 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.