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2013 DIGILAW 332 (HP)

Dalip Singh v. State of Himachal Pradesh

2013-04-22

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. Petitioner, by way of this petition, has challenged the order passed by the Divisional Commissioner, Mandi on 14.12.2011 in Appeal Nos. 412/2010 and 413/2010 decided on 14.12.2011. 2. “Key facts” necessary for the adjudication of this petition are that the Range Officer, Baldwara during July, 2007 filed encroachment case against respondent No.5 in the court of Collector-cum-Divisional Forest Officer, Suket Forest Division regarding illegal encroachment in Government forest land situated in Muhal Barswan, Khasra No. 433 measuring 2-1-11 bighas. Notice was issued to respondent No.5 on 1.1.2008, under sub-section (1) of section 4 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (hereinafter referred to as the “Act” for brevity sake). Respondent No.5 filed reply to the same on 10.4.2008. The Collector-cum-Divisional Forest Officer passed the eviction order against respondent No.5 on 11.6.2010. 3. Similarly, the Range Officer, Baldwara during May 2009 filed encroachment case against respondent No.5 in the court of Collector-cum-Divisional Forest Officer, Suket Forest Division regarding illegal encroachment in Government forest land situated in Muhal Barswan/147, Khasra No. 490/1, 490/2 and 490/3 measuring 1-3-11 bighas. Notice was issued to respondent No.5 on 29.5.2009 under sub-section (1) of section 4 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, to which he filed reply on 31.7.2009. The Collector-cum-Divisional Forest Officer passed the eviction order against respondent No.5 on 28.8.2010. Respondent No.5 filed appeal Nos. 412/2010 and 413/2010 against the orders passed by the Collector-cum-Divisional Forest Officer, Suket Forest Division, District Mandi on 11.6.2010 and 28.8.2010. The Divisional Commissioner, Mandi allowed the appeals on 14.12.2011. Hence, this petition. 4. Mr. R.K. Gautam, learned Senior Advocate has vehemently argued that respondent No.5 has encroached upon Khasra No. 433 measuring 2-1-11 bighas and Khasra Nos. 490/1, 490/2 and 490/3 measuring 1-3-11 bighas. He then contended that the Collector-cum-Divisional Forest Officer has passed reasoned order taking into consideration the entire evidence led by the parties. According to him, the order passed by the Divisional Commissioner, Mandi dated 14.12.2011 is against the law and facts. 5. Mr. Pramod Thakur, learned Additional Advocate General has strenuously argued that in sequel to orders passed by the Collector-cum-Divisional Forest Officer dated 11.6.2010 and 28.8.2010, the possession has been taken over from respondent No.5. Mr. According to him, the order passed by the Divisional Commissioner, Mandi dated 14.12.2011 is against the law and facts. 5. Mr. Pramod Thakur, learned Additional Advocate General has strenuously argued that in sequel to orders passed by the Collector-cum-Divisional Forest Officer dated 11.6.2010 and 28.8.2010, the possession has been taken over from respondent No.5. Mr. Bimal Gupta, learned counsel appearing on behalf of respondent No.5 has argued that the present petition is not maintainable. He then contended that the petitioner has filed an election petition against his client and he wanted to create evidence against his client to be used in election petition. He further contended that respondent No.5 has not encroached upon the forest land. He finally contended that petitioner himself has encroached upon the Government land. 6. I have heard the learned counsel for the parties and have perused the pleadings carefully. 7. The Range Officer, Baldwara, as noticed above, has filed encroachment case against respondent No.5 on 1.1.2008 regarding illegal encroachment on Khasra No.433 measuring 2-1-11 bighas situated in Muhal Barswan. Notice was issued to respondent No.5 as per sub-section (1) of section 4 of the Act. He has filed reply to the same. 8. The prosecution has examined five witnesses to prove this case. PW-1 Sanjay Kumar has testified that respondent No.5 has encroached upon Khasra No. 433 measuring 2-1-11 bighas situated in Muhal Barswan. He has constructed kitchen, cow-shed and raised crops. 9. PW-2 Budhi Ram has also testified that he alongwith Patwari investigated the case and found encroachment on the spot done by respondent No.5. He forwarded the file for further action. According to him, proper verification has been made on the spot on 4.6.2007. 10. PW-3 Kushal Singh, Patwari has deposed that he carried out the investigation of encroachment after receipt of encroachment case from the District Officer. He has further deposed that respondent No.5 has encroached upon the land. 11. PW-4 Dalip Singh and PW-5 Bhubneshwar have supported the version of PW-1 to PW-3. According to them, respondent No.5 has encroached upon the Government land by raising ginger crop and constructing cow-shed and kitchen. The same was verified by the Kanungo and Patwari in their presence. According to them, respondent No.5 was also present on the spot but he refused to sign the documents. 12. According to them, respondent No.5 has encroached upon the Government land by raising ginger crop and constructing cow-shed and kitchen. The same was verified by the Kanungo and Patwari in their presence. According to them, respondent No.5 was also present on the spot but he refused to sign the documents. 12. The Collector-cum-Divisional Forest Officer has also taken into consideration the revenue record whereby State Government has been shown as the owner and the status of the land has been shown is Charagah Billa Drakhtan in Khasra No. 433. Respondent No.5 has not led any evidence. Learned counsel appearing on behalf of respondent No.5 has only relied upon report dated 12.8.2009 furnished by the Naib Tehsildar to Sub Divisional Magistrate, Sadar. According to this report, only grass alongwith 3-4 fruit trees were growing on the land. The Collector-cum-Divisional Forest Officer after considering the entire evidence oral as well as documentary has rightly come to the conclusion that respondent No.5 has encroached upon the Government/forest land in Khasra No.433 measuring 2-1-11 bighas. No credence can be given to the report of the Naib Tehsildar dated 12.8.2009 for the simple reason that respondent No.5 has himself moved an application for regularization of encroachment of land including Khasra No.433. It was the best evidence against respondent No.5. The Collector-cum-Divisional Forest Officer has rightly ordered the eviction of respondent No.5. 13. Now, the Court will advert to the encroachment by respondent No.5 on Khasra Nos. 490/1, 490/2 and 490/3 measuring 1-3-11 bighas situated in Muhal Barswan/147, Tehsil Sadar, District Mandi. In this case also, case was filed by the Range Officer, Baldwara. A show cause notice, under subsection (1) of section 4 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, was issued to respondent No.5 on 29.5.2009, to which he filed reply on 31.7.2009. 14. PW-1 Budhi Ram, Field Kanungo has testified that respondent No.5 has encroached upon Government forest land in Khasra No. 490/1, 490/2 and 490/3 measuring 1-3-11 bighas by way of cultivation and raising orchard. 15. PW-2 Prakash Singh, Patwari has testified that on receiving the orders from higher authority, he investigated the case and found encroachment on the spot by respondent No.5. He was accompanied by Naib Tehsildar to spot on 8.12.2009. 16. 15. PW-2 Prakash Singh, Patwari has testified that on receiving the orders from higher authority, he investigated the case and found encroachment on the spot by respondent No.5. He was accompanied by Naib Tehsildar to spot on 8.12.2009. 16. PW-3 Sanjay Kumar has deposed that after the investigation of the encroachment, it was found on the spot that respondent No.5 has encroached upon the land. It was verified by the Patwari on 15.5.2009. PW-4 has fully supported the version of PW-3. 17. In the revenue record, the Government of Himachal Pradesh is the owner of the land, which is shown as Charagah Billa Drakhtan. 18. Respondent No.5 Prem Sagar has appeared as a witness as RW-3. According to him, complaint has been filed at the instance of petitioner, who has lost the election of Gram Panchayat. According to him, the averments contained in the complaint were false. 19. RW-1 Puran Chand has deposed that no demarcation of Khsra Nos. 490/1, 490/2 and 490/3 was carried out by the revenue authorities on 9.3.2009 and respondent No.5 has not encroached upon the Government land. 20. RW-2 Narotam Ram has supported the version of RW-1. In the demarcation report there is reference that respondent No.5 has moved an application for regularization of the land. The Collector-cum-Divisional Forest Officer, after going through the oral as well as documentary evidence has rightly come to the conclusion that respondent No.5 has encroached upon the Government land, which led to passing of order on 28.8.2010. However, the Divisional Commissioner in a very slipshod manner has accepted the appeals preferred by respondent No.5 against the orders passed by the Collector-cum-Divisional Forest Officer on 11.6.2010 and 28.8.2010. He has not taken into consideration the statements made by the witnesses produced by the Department. He has also over looked very vital aspect of the matter that respondent No.5 has himself admitted the encroachment when he has filed an application for regularization of the encroachment. 21. Now, as far as demarcation report dated 12.9.2009 is concerned, to which reference has been made in case pertaining to encroachment of Khasra No.433, the same cannot be given credence. Respondent No.5 himself has admitted that he has encroached upon the Government land. According to the revenue record, State Government is owner of the land and the nature of the land has been shown as Charagah Billa Drakhtan. Respondent No.5 himself has admitted that he has encroached upon the Government land. According to the revenue record, State Government is owner of the land and the nature of the land has been shown as Charagah Billa Drakhtan. The observations made by the Divisional Commissioner that the lower court has passed the impugned order that the demarcation of the land has not been done by the competent authority as the land belongs to the Himachal Pradesh State Government is contrary to record. The Collector-cum-Divisional Forest Officer has not made any such observations in his orders dated 11.6.2010 and 28.8.2010. The witnesses produced by the prosecution have specifically averred that respondent No.5 has encroached upon the Government land. The Divisional Commissioner has also erred by coming to the conclusion that the Collector-cum-Divisional Forest Officer has not ascertained the specific portion of the Government land upon which respondent No.5 is in unauthorized occupation. In both the orders dated 11.6.2010 and 28.8.2010, the findings recorded by the Collector-cum-Divisional Forest Officer are that respondent No.5 has encroached upon Khasra Nos. 433, 490/1, 490/2 and 490/3. 22. In view of the observations and analysis made hereinabove, there was neither any illegality nor any infirmity in the orders passed by Collector-cum-Divisional Forest Officer dated 11.6.2010 and 28.8.2010. To the contrary order dated 14.12.2011 passed by the Divisional Commissioner, besides, being laconic is against the facts. 23. Mr. Bimal Gupta has vehemently argued that the complaints have been filed at the behest of the petitioner since he has lost the election. According to him, petitioner has not disclosed this fact. However, it is clear from the pleadings that he has filed election petition against respondent No.5. Respondent No.5 has absolutely no business to occupy the Government land measuring 2-1-11 bighas and 1-3-11 bighas. He is the Pradhan of Gram Panchayat, Basawan. The present petition is maintainable since the question of vital public importance has been raised the manner in which respondent No.5 has encroached upon the Government/Forest land. 24. Mr. Bimal Gupta has also argued that the petitioner has also encroached upon the Government land. Petitioner has filed rejoinder to the reply filed by respondent No.5. Petitioner has admitted that he had encroached upon the Government land. It is clear from Annexure PA affidavit dated 11.1.2007 that petitioner has encroached upon the Government land situated in Khasra No. 575/145/1/1 and 575/145/2/4 measuring 0-12-4 bighas. Petitioner has filed rejoinder to the reply filed by respondent No.5. Petitioner has admitted that he had encroached upon the Government land. It is clear from Annexure PA affidavit dated 11.1.2007 that petitioner has encroached upon the Government land situated in Khasra No. 575/145/1/1 and 575/145/2/4 measuring 0-12-4 bighas. The file was also prepared. Petitioner had submitted an application before the Assistant Collector, 2nd Grade, Tehsil Sadar, District Mandi for vacating the Government land encroached upon by him. The spot was visited and the petitioner was evicted. The matter was re-examined on 4.6.2010 and it was found that the petitioner has vacated the Government land. This exercise has been undertaken by the petitioner only to avoid disqualification imposed under section 122 (c) of the Himachal Pradesh Panchayati Raj Act, 1994. The petitioner has also incurred disqualification by encroaching upon the Government land, though later on he has vacated the same. The purpose of inserting section 122 (c) in the Himachal Pradesh Panchayati Raj Act, 1994 is that the persons do not encroach upon the Government land and if they do so, they are disqualified to hold the public office. The persons, who have encroached upon the Government land, would still incur disqualification even if they have vacated the same. Otherwise they would keep on encroaching/occupying the Government land and at the verge of election, would vacate the same. This would be against the letter and spirit of section 122 (c) of the Himachal Pradesh Panchayati Raj Act, 1994. 25. The Court in order to ensure that respondent No.5 is evicted from the Government/forest land has passed various orders. Now, it has come in the affidavit filed by the Conservator of Forests, Mandi that possession of Khasra No. 433 measuring 2-1-11 bighas has been taken over by the Department on 7.7.2010. Similarly, possession of Khasra Nos. 490/1, 490/2 and 490/3 measuring 1-3-11 bighas has been taken over from respondent No.5 on 4.9.2010. 26. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed with costs, which are quantified at 5,000/-. The order dated 14.12.2011 passed by the Divisional Commissioner in appeal Nos. 412/2010 and 413/2010 is quashed and set aside. Pending application(s), if any, also stands disposed of. No costs.