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2014 DIGILAW 600 (HP)

Kashmir Singh v. State of H. P.

2014-05-20

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Sureshwar Thakur, J. The petitioner avers that he is owner in possession of land bearing Khewat No. 66, Khatauni No. 79, Khasra Number 675/143, measuring 0-14-4 bighas, situated in Muhal Katipari/536, Tehsil Padhar, District Mandi, H.P. The Jamabandi qua the aforesaid land comprised, in, Annexure P-1, too, divulges so. The land aforesaid, adjoins the land owned by the State of Himachal Pradesh and recorded in the possession of the IPH Department, and is comprised in Khewat No. 157 min, Khatuauni No. 197 min, Khasra Numbers 505/144 and 506/144. The land aforesaid, is, purportedly encroached upon by the petitioner to the extent of 0-3-8 Bigha. The encroachment to the above extent, on the land recorded in the possession of the IPH department, stands communicated, in, Annexure P-3 prepared in pursuance to the demarcation of the land carried out by the Naib Tehsildar, Paddhar. In consequence thereto the Assistant Engineer, IPH Sub Division Paddhar, District Mandi instituted a complaint for eviction of the petitioner therefrom, under the apposite provisions of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 in the Court of the Sub Divisional Collector, Jogindernagar, District Mandi. The Sub Divisional Collector while exercising powers under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971, on, consideration of the material laid before him allowed the complaint and ordered the eviction of the petitioner from an area measuring 0-3-8 Bigha comprised in Khata Khatuni No. 157 min/197 min, Khasra Numbers 505/144/1 and 506/144/1 situated in Mohal Katipari of Tehsil Paddhar, District Mandi, H.P. An appeal was instituted by the aggrieved against the order of the Sub Divisional Collector comprised, in, Annexure P-5, before the learned Divisional Commissioner, Mandi, who in his order comprised, in, Annexure P-6 dismissed the appeal preferred against the impugned order comprised, in, Annexure P-5. Hence, he affirmed the order of eviction of the petitioner from the disputed/ encroached land as previously ordered by the Sub Divisional Officer, in, order comprised in Annexure P-5. The petitioner is aggrieved by the demarcation report comprised, in, Annexure P-3 which led to the passing of orders comprised, in, Annexures P-5 and P-6. Hence, has instituted the instant writ petition praying for quashing of Annexures P-4, P-5 and P-6. The petitioner is aggrieved by the demarcation report comprised, in, Annexure P-3 which led to the passing of orders comprised, in, Annexures P-5 and P-6. Hence, has instituted the instant writ petition praying for quashing of Annexures P-4, P-5 and P-6. Besides, he, prays for a direction to the respondents that they be directed to redemarcate the land of the petitioner and the contiguous land of the respondents in accordance with the procedure prescribed, in, the HP Land Records Manual. 2. Notice of the writ petition was waived by the learned Additional Advocate General appearing on behalf of the respondents. When the writ petition came up for admission on 11.4.2014, reply on behalf of respondents was directed to be filed within four weeks. 3. When the writ petition was taken up before this Court on 14.5.2014, no reply was filed on behalf of respondents, yet this Court for reasons to be recorded hereinafter, is, constrained to conclude that the writ petition, is, not maintainable before this Court. Hence, this Court, in the absence of a reply on behalf of the respondents, proceeds to dismiss the writ petition. The reasons as projected before this Court by the counsel for the petitioner for rendering Annexure P-3 to be ingrained with illegality, are:- (a) The demarcation of the land of the petitioner and the adjoining land owned by the State of Himachal Pradesh and recorded in the possession of the IPH Department, not having been carried out by the competent authority, in as much, as, it, having been carried out by the Naib Tehsildar, whereas the Tehsildar or the Assistant Collector 1st Grade was the officer competent and authorized to carry out the demarcation. Hence, demarcation having been carried out by an unauthorized Officer, it renders Annexure P-3 to be void or nonest. Consequently, findings as recorded in Annexure P-5 and P-6, too, are legally infirm. (b) The findings recorded in Annexure P-3 of the petitioner, having encroached upon the land recorded in the possession of IPH Department, to, the extent of 0-3-8 Bigha, cannot, be concluded to be fastened with any truth so as, to, foist any tenability to it, in as much, as, the said finding is recorded in the concluding portion of the report in a different ink, hence, it appears to be an afterthought, to which no conclusiveness is to be fastened. (c) The demarcation having been carried out by the demarcating officer, is, in contravention of the procedure prescribed under the HP Land Records manual, in as much as, when it is enjoined, therein that the demarcating officer before commencing demarcation, shall fix three points, wherefrom he is to proceed to demarcate the land/boundaries of contiguous estates, the said obligation has come to be infringed, in as much, as, the demarcating officer before proceeding to commence demarcation of contiguous estates has omitted to determine or fix three points, hence, leaving the demarcation of the boundaries of contiguous estates to be legally flawed. Consequently, also, then demarcation report comprised, in, Annexure P-3, is, contended to acquire no legal force. 4. For determining the legality of the aforesaid averments addressed before this Court by the learned counsel for the petitioner, more so, qua the contention raised at (a), it is necessary to advert to the fact as manifest from a reading, of instructions as comprised in letter of 13th September, 2012 addressed by the Additional Chief Secretary, Revenue to the all the Revenue Officers, concerned, wherein it has been mandated that:- “when a Revenue Officer is in receipt of an application for demarcation, complete in all respects, the Revenue Officer concerned inclusive of the Assistant Collector, 2nd Grade, can, permissibly direct the Field Kanungo and consultant, to carry out the land demarcation, in, the presence of all the necessary parties, in accordance with the procedure prescribed in HP Land Records Manual. However, the Field Kanungo, is, enjoined to submit his report to the Revenue Officer concerned, who then would pass a final order thereon, after considering the report and objections raised by the interested parties. It is further more, mandated, that in case the Revenue Officer concerned is not satisfied with the report and, is, of the view that any/some of the objections are required to be redressed in the field, he may himself visit the spot and get the demarcation conducted in presence of interested parties. However, it has been made clear, therein, that demarcation proceedings, will be construed to be only final, only after the final order, is, rendered by the Revenue Officer being also an Assistant Collector of 2nd Grade, in quasi-judicial capacity. It has been clarified in the above communication that the previous instructions comprised in letter of the Government in a memorandum bearing number Rev. It has been clarified in the above communication that the previous instructions comprised in letter of the Government in a memorandum bearing number Rev. D.(A) 2-1/97 dated 24th April, 1997, whereby only, a, Revenue Officer of the level of 2nd grade and above was empowered to visit the spot and demarcate private land touching government lands is no longer in operation. It has been made manifestly and obviously clear that henceforth, even, a Revenue Officer may be directed to proceed to demarcate the boundaries of private lands, touching/adjoining government lands as in the case of private lands abutting other private lands.” 5. Succinctly put the communication encapsulated hereinabove crystallizes the fact of extantly, even a Field Kanungo, on, being directed by even the Assistant Collector, 2nd Grade, to carry out demarcation of private land adjoining or contiguous to government land, can carry out demarcation thereof and submit his report to the Revenue Officer. However, the jurisdiction continues to remain vested in the Revenue Officer, who, can also be the Assistant Collector of 2nd Grade, to, after considering objections, if any, as may come be raised, to, the report, render final orders thereon. Further more, even in the face of the Revenue Officer, of, either grade not being satisfied with the report of the Field Kanungo, as, directed by the latter, to, proceed to carry out demarcation has been empowered to visit the spot and get the demarcation conducted, in the presence of the interested parties. In other words, hence, in the face of the aforesaid communication, empowering the Assistant Collector of either grade to receive applications for demarcation of government land touching private land and to direct the Field Kanungo, to, proceed to carry out demarcation finalize his report and on being dissatisfied with the report submitted to him by the Field Kanungo being empowered, to, personally carry out the demarcation of the boundaries of private land adjoining government land, takes the wind out of the contention of the learned counsel for the petitioner, that, Annexure P-3 while recording the factum of demarcation of the petitioner’s land with the contiguous land recorded in the possession of IPH Department, having been carried out by the Assistant Collector 2nd Grade, is legally infirm, it, recording the factum of demarcation by an unauthorized and legally incompetent Revenue Officer. Besides, the contention of a purportedly, hence, legally untenable demarcation rendering reliance, if any, upon Annexure P-3, by the Officers, who rendered Annexures P-5 and P-6, to be impeachable, is, too hence to be discountenanced. Further more, considering that the fact as raised above before this Court by the learned counsel for the petitioner, has been ousted by this Court. It is also necessary to advert to the factum as recorded in Annexure P-5 of the land of the petitioner and the adjoining land of the respondent having come to be re-demarcated by the Tehsildar, who, reaffirmed the correctness of the Tatima as previously prepared. The said fact, therefore, fortifies a conclusion qua the legality, as well, as the correctness and authenticity of the demarcation previously carried out by the Assistant Collector, 2nd Grade. Hence, it, gives no ground at all to the learned counsel for the, petitioner to contend before this Court, that the demarcation of the boundaries of the land of the petitioner adjoining the land of the respondents, is, to be construable to be not enjoying any legal force, it, having not been carried out assuming so, by an officer not competent to do so. 6. Be that as it may, it is also necessary to advert to the fact, as, projected by the learned counsel for the petitioner, that, the Officer who prepared Annexure P-3, having, in the concluding part, in a different ink recorded the fact of petitioner having encroached on the land of the respondent, to, the extent of 0-3-8 Bigha. Therefore, the recording of such a fact in the concluding part, of the report comprises an afterthought and, is, hence unreliable. Primarily, such a contention would have force, in, case the recording of the fact aforesaid in a different ink, in, the concluding part of the report Annexure P-3, was contended to be not, in, the hands of Assistant Collector 2nd Grade who prepared Annexure P-3. However, the above argument, is, neither canvassed before this Court nor, hence, it is required to be dealt with. However, the above argument, is, neither canvassed before this Court nor, hence, it is required to be dealt with. As a corollary, for omission on the part of the learned counsel for the petitioner, to, contend that the concluding part of Annexure P-3, is, not recorded in the hands of the author of Annexure P-3, hence, the said fact, as such, is tampered, leaves no legal sanctity to be fastened to the contention aforesaid of the learned counsel for the petitioner. Moreover, it too, renders rudderless the contention of the learned counsel for the petitioner that Annexure P-3 omits, to, record the fact of the petitioner having encroached to the extent of 0-3-8 Bigha over a piece of land owned and possessed by the respondents, rather the said portion forms a part of the report and is to be concluded to be so conveying. Even otherwise, assuming that such an argument was raised, then, too it comprises a disputed question of fact, which this Court be interdicted to embark upon or adjudicate. Besides, the re-demarcation of the disputed portion by the Tehsildar, who, as apparent from a reading of Annexure P-5 fastened the previously recorded findings of the Naib Tehsildar comprised in Annexure P-3 with conclusiveness, smother the effect, if any, of the contention aforesaid. An apt conclusion which, is, to be formed, is, of Annexure P-3 having concluded the fact of the petitioner having encroached on the land of the respondents, to, the extent of 0-3-8 Biswas. Moreover, it has to be concomitantly concluded that Annexure P-3 enjoys legal sanctity and, is, neither inadmissible nor irrelevant to decide the controversy over which the parties are engaged. 7. Further more the learned counsel for the petitioner, also, canvassed before this Court that the findings recorded in Annexure P-3 are infirm, in as much, as, they are in contravention of mandate of the H.P Land Records Manual, enjoining, the, officer demarcating the boundaries of private land/adjoining government lands, to, before the commencement of the said exercise, determine fixed points, which he omitted to do so, hence, imbues Annexure P-3, with a hue of illegality. However a perusal of Annexure P-3 discloses, the fact of the Officer, who conducted the demarcation of the boundaries of the land of the petitioner adjoining the government lands owned by the respondent, having, before proceeding to conduct demarcation thereof, having determined three fixed points wherefrom, he, proceeded to carry out the entire exercise and on conclusion, whereof he detected, the fact of the petitioner, having encroached, upon the land of the government, to, the extent of 0-3-8 Bigha. Even the fact of the petitioner being present at the time contemporaneous, to the Officer, having conducted the demarcation of boundaries of the land of the petitioner adjoining to the government land alongwith the contesting parties, is, a loudly pronounced fact therein. Even the petitioner does not dispute the fact incorporated in Annexure P-3, of, his being present at the time when demarcation proceedings were commenced, or when the demarcating Officer had determined the fixed points, wherefrom he commenced and concluded the demarcation of the land of the petitioner adjoining the government land. 8. His omission to dispute his recorded presence at the earliest, especially, before the Tehsildar who subsequently re-demarcated the land and affirmed the previous findings, portrays the fact of his having acquiesced to the determination of three fixed points, in his presence, wherefrom, the Revenue Officer proceeded to carry out demarcation, hence, estops him from contesting the legality of the findings in Annexure P-3. In consequences thereto, at, this stage, he for reiteration, is firmly embargoed, from contesting the fact of the legality of Annexure P-3, in as much, as, its conclusion, being anchored on a demarcation, commenced and concluded by a competent officer, in the legally enjoined manner, as, depicted in Annexure P-3. A fatal blow, is lent to the contention of the learned counsel for the petitioner, while concerting, to, rob Annexure P-3 of its legal sanctity, on, the facets canvassed and discountenanced hereinabove, on the strength, of, Annexure P-5, the order of eviction of the petitioner from the land in dispute, bespeaking the fact of boundaries of the land of the petitioner adjoining the land of the respondent, having come to be re-demarcated, by, the Tehsildar on 17.2.2004 which sequelled the lodging of Annexure P-4, which, ultimately sequelled Annexures P-5 and P-6. The fact, too, as recorded in Annexure P-5 of the Tehsildar having redemarcated the boundaries of the land of the petitioner adjoining the government land and on his doing so his having, reaffirmed the correctness of the Tatima, previously prepared, has been omitted to be averred in the writ petition. Rather, it was a pertinent fact which was required to be agitated. Its being not averred in the writ petition constitutes, a, blatant and open attempt to, hide a pivotal fact from this Court which would have ultimately, rested the entire controversy and would have benumbed the contention of the learned counsel for the petitioner of any purported illegality, ingraining Annexure P-3. In face, thereof, rather a firm conclusiveness, is, lent to the fact recorded in Annexure P-5 and Annexure P-6 of the petitioner having encroached upon the government land, to, the extent as comprised in above. 9. An accentuated and conclusive fatal blow is delivered to the petitioner by the fact as recorded in Annexure P-5 of the petitioner during the course of arguments before the authority, who, pronounced Annexure P-5 having conceded to the fact of his no longer possessing the land in dispute and the respondents being free to take its possession, in as much, as, it pronounces the fact of his being previously in possession of the land, as also, his hence having encroached it. In sequel he is estoped from contesting the fact the legality of the demarcation report and consequently also the legality of findings recorded in Annexures P-5 and P-6, both anvilled and built upon demarcation report Annexure P-3. 10. It is necessary to mention that a concerted effort to erode the demarcation report of its conclusiveness, ought to be made, at the earliest. However, there is no such immediate and prompt protest emanating at the instance of the petitioner, rather it transpires from the above discussion, that, there is a loudly communicated manifest acquiescence of the petitioner, to the demarcation proceedings, as carried out. His effort to de-finalise the effect of Annexures P-3, P-5 and P-6 is highly belated. Besides, he is estopped from contesting their legality. His effort to de-finalise the effect of Annexures P-3, P-5 and P-6 is highly belated. Besides, he is estopped from contesting their legality. Therefore, when there was loudly communicated manifest acquiescence of the petitioner to the demarcation proceedings as carried out and there is no demonstrateable material on record to oust the veracity of Annexure P-3, hence, at this belated stage it is not open to the petitioner to reagitate the conclusive findings recorded by the Naib Tehsildar in Annexure P-3 and reaffirmed by the Tehsildar qua the fact of petitioner having encroached upon the land as divulged by Annexure P-3. 11. As a corollary then obviously writ of mandamus is not grantable, rather at the outset itself the CWP, is, to be construed to be not maintainable before this Court and deserves dismissal at this stage without eliciting any reply on behalf of respondents. Miscellaneous application, if any, too, stand dismissed.