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Himachal Pradesh High Court · body

2014 DIGILAW 637 (HP)

Labho Devi v. State of HP

2014-05-24

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Sureshwar Thakur, J. The petitioner avers that the Collector-cum-DFO, Nahan, on the report of R.O. Nahan, initiated eviction proceedings against the petitioner in respect of land comprised in Khasra No.636/523/84/1 measuring 0-7 Bighas, situated in village Dingarwala, being land owned by the respondents and allegedly encroached upon by the petitioner. She avers that she was not formally served with the notice comprised, in, Annexure P-3 nor she was given an adequate opportunity of being heard, in, as much, as, preceding the order for eviction comprised, in, Annexure P-1 and affirmed by the order of the appellate Authority comprised, in, Annexure P-2, she had signed blank statement comprised, in, Annexure R-1, hence, she having not been formally served with eviction notice Annexure P-3 nor having participated in the proceedings, renders the entire proceedings to be vitiated. She further avers that the orders comprised, in, Annexures P-1 and P-2, both, are illegal. She prays for quashing and setting-aside of the same, by this Court, while exercising its writ jurisdiction. Furthermore, she contended that the encroachment on the land in dispute was detected by a demarcation comprised, in, Annexure P-4, which demarcation carries no legal force, it having been carried out by the Field Kanungo and respondent No.3, whereas she owning land in contiguity thereto, as such, for rendering validity to the demarcation, it necessitated its being carried out by the Assistant Collector. Moreover, she has continued to contend that the classification Column of the Jamabandi of the land reflects it to be a barren land, hence, the factum of the notice, detailing, her constructing a house thereon, as well, as, the orders comprised in Annexures P-1 and P-2 ordering her eviction from the house constructed on the land, in, dispute are legally unwarranted. Lastly, she has put forth the contention that the house, on the land in dispute, was in existence, some 30-40 years ago, hence, she has acquired title to it by prescription ensuing from efflux of more than 30 years preceding the commencement of the launching of proceedings against her. Lastly, she has put forth the contention that the house, on the land in dispute, was in existence, some 30-40 years ago, hence, she has acquired title to it by prescription ensuing from efflux of more than 30 years preceding the commencement of the launching of proceedings against her. Consequently, when she had acquired title to it by prescription in the manner aforesaid, or had become its owner by way of adverse possession, the dispute involved a serious question of title and the bar envisaged under Section 15 of the H.P. Public Premises and Land (Eviction & Rent Recovery) Act, 1971 (herein-after referred to as ‘HP Public Premises Act’) ousting the jurisdiction of Civil Courts, to, decide the controversies or subject matter falling within the ambit of the Act, would not be erosive, of the jurisdiction vested in a Civil Court under Section 9 of the Code of Civil Procedure for trying suits of a civil nature. 2. Furthermore it is contended, that, though the excepting clause 9 of the Code of Civil Procedure ousts the jurisdiction of Civil Courts, where their jurisdiction is expressly or impliedly barred. Consequently, yet even if, the jurisdiction of a Civil Court is expressly barred by the provisions enshrined in Section 15 of the H.P. Public Premises Act, yet a declaratory suit on the part of the petitioner for declaring her to become owner by way of adverse possession of the disputed land, is, maintainable. The said fact being entertainable as well as adjudicatable alone by a Civil Court and till the Civil Court had not settled the title of the respondent till, then the instant proceedings were not maintainable. Therefore, she contends that copious prejudice as well as substantial miscarriage of justice has accrued to her. 3. On notice of the writ petition, being given to the respondents, a detailed reply on behalf of the respondents was filed to the writ petition, wherein it was contended with force, that the petitioner was validly detected to have encroached upon the forest land and a valid and proper notice of eviction was served upon the petitioner comprised, in, Annexure-P-3. In the reply, furnished by the respondents, they have contended that the demarcation/measurement for detecting encroachment by the petitioner upon the land owned and possessed by the respondents was validly conducted by the Field Kanungo. In the reply, furnished by the respondents, they have contended that the demarcation/measurement for detecting encroachment by the petitioner upon the land owned and possessed by the respondents was validly conducted by the Field Kanungo. In their reply, the respondents have continued to vehemently contend that the petitioner had admitted her encroachment on the forest land and had also submitted/furnished an affidavit before the respondents comprised, in, Annexure R-2 portraying her acquiescence, to abdicate the land in favour of the respondents. Given her statement on oath, comprised, in, Annexure R-1, as also, given her statement comprised in Annexure R-2, both of which comprise her admissions qua the fact of, her having encroached forest land owned and possessed by the respondents, hence, she is contended to be not entitled to claim any relief from this Court. Therefore, it is submitted that the writ petition is without merit and is liable to be dismissed. 4. A show cause notice under Section 4(1) of the H.P. Public Premises Act, comprised, in Annexure P-3 enunciates the fact of the petitioner having by way of constructing a Pucca house on the land in dispute encroached upon the land comprised, in Khasra No.636/523/84/1 measuring 0-7 Bighas. Under Annexure P-3 she was called upon to show cause as to why an order of eviction from the land in dispute, be not rendered against her. Show cause notice comprised in Annexure P-3 emanated from the office of the Forest Department on 22.11.2008 wherein she was directed to project her stand on 16.07.2011 before the authority who rendered Annexure P-1. The petitioner has urged before this Court that the said notice never came to be formally served upon her. Moreover, she also canvasses the fact of her statement comprised in Annexure R-1 conveying the fact of her father-in-law having raised a house on the land in dispute 30-40 years ago being of, no avail to the respondents, as her signatures existed on Annexure R-1, when its contents were not scribed. Assuming that some iota of truth is to be imputed to her contention, hence, conceding, that she was beguiled by the respondents to signature it, on the pretext other than theirs preparing/scribing a statement other than the one comprised in Annexure R-1. Assuming that some iota of truth is to be imputed to her contention, hence, conceding, that she was beguiled by the respondents to signature it, on the pretext other than theirs preparing/scribing a statement other than the one comprised in Annexure R-1. Nonetheless, given the fact that Annexure R-II, undisputedly, is an affidavit sworn by her, besides, when it is tendered and produced by her before the respondents subsequent to the issuance of show cause notice comprised in Annexure P-3, firmly ousts her from contending either, the fact of hers not being formally served with notice as also, bulks her from espousing before this Court, that she remained condemned unheard in the proceedings, comprised, in, Annexure P-1 and subsequently, Annexure P-2. As an aftermath, this Court concludes that there, is, no tenacity in her contention of hers remained unserved with the notice or hers having remained condemned unheard. Nor her contention of both Annexures P-1 and P-2 suffering from vice of vitiation for non-observance of principles of natural justice, is, to be countenanced. 5. While proceeding to adjudicate, the contention of the learned counsel for the petitioner, that, the detection by the respondents of hers having encroached upon the land in dispute, to the extent of 7 biswas, is, ingrained with a legal error, in as much, as the detection was in pursuance to, a, demarcation carried out by a Field Kanungo, whereas, when she was owner of the land adjoining to the land, in, dispute it was, rather legally entailed upon the respondents, to get the demarcation of the land, in, dispute, in, purported contiguity of the land of the petitioner, by the Assistant Collector. Hence, it is argued that a tenable detection, in pursuance, thereof, of the petitioner having encroached upon the land owned by the respondents to the extent of 7 biswas, would have been reliable. However, for transgression, it is of no legal value. The said contention staggers and falls apart, in the face of it having been undisputedly established by the Jamabandi placed by them on record and its conveying the fact of the respondents being owner in possession of the land in dispute. However, for transgression, it is of no legal value. The said contention staggers and falls apart, in the face of it having been undisputedly established by the Jamabandi placed by them on record and its conveying the fact of the respondents being owner in possession of the land in dispute. However, when the petitioner omitted to file any Jamabandi displaying hers to be the owner of the land contiguous to the land in dispute, spurs an inference of the demarcation/measurement of the land in dispute, carried out by the Field Kanungo, preceding notice, comprised in Annexure P-3, to be not legally flawed. In other words, the non-substantiation by the petitioner of the fact of her being owner of the land contiguous to the land in dispute foists/fastens the demarcation/measurement of the land in dispute, preceding notice comprised in Annexure P-3, to be legally tenable. Even otherwise, in the face of her non-substantiating the fact of hers, being owner of land contiguous, to the land in dispute, any exercise of the Field Kanungo to determine the extent of or for ear-marking and delineating, the dimensions of the land unauthorizedly occupied by the petitioner, by merely measuring the same, would not constitute any act of demarcation, by him, of the boundaries of estate of the respondents when not abutting the purported contiguous land of the petitioner. In other words, rather, when the land of the petitioner was not contiguous nor abutted the land in dispute owned by the respondents, the Field Kanungo merely measured the land of the respondents, for detecting the dimensions of the encroached area at the instance of the petitioner. Also it did not necessitate either participation of the petitioner nor was obedience, if any, as enjoined in the H.P. Land Records Manual, upon the Field Kanungo, who prepared Annexure P-4, to, carry out the measurement of the land of the respondents, solely for the purpose of detecting whether the extent of the area owned by the respondents was illegally and unauthorisedly occupied by the petitioner. The Mandate enjoined in the H.P. Land Records Manual necessitates obedience on the part of the Field Kanungo only in the event of the land in dispute being contiguous to the land owned by any person/entity. However, now, it is not open to the petitioner to contend that any infraction of the provisions of H.P. Land Records Manual has been occasioned. However, now, it is not open to the petitioner to contend that any infraction of the provisions of H.P. Land Records Manual has been occasioned. More so, when for reasons advanced aforesaid, a, conclusive view has been formed that there was no demarcation, rather, only measurement of the entire land of the respondents for detecting the extent of encroachment upon the land of the respondents, at the instance of the petitioner. 6. Dehors the above, the statement of the petitioner comprised, in, Annexure R-1, as also, her statement contained, in, Annexure R-2 both vigorously conveying her acquiescence as well as her admission, of hers being, in, illegal as well as unauthorized occupation of the land in dispute, it, also squarely benumbs her contention, of the measurement preceding the issuance of a show cause notice comprised, in, Annexure P-3, suffering from any vice of untenability. Her acquiescences clinch the fact of hers being in unauthorized and illegal possession of the land, in, dispute owned and possessed by the respondents. The said acquiesence's and admissions, also throttle her contention of the classification of the Jamabandi qua the land in dispute while showing the classification of the land in dispute to be a barren land, hence, portraying the fact of there being no house in existence, thereupon, hence, rendering the fact of a Pucca house, unauthorisedly raised by the petitioner on the land in dispute untruthful. Rather, a firm and clinching conclusion, which is to be marshaled, is that, the respondents have squarely and categorically substantiated the fact of the petitioner being in unauthorised occupation of the land in dispute. As a sequel thereto, the orders of eviction of the petitioner from the land in dispute comprised in Khasra No.636/523/84/1 measuring 0-7 Bighas do not warrant any interference nor do they necessitate theirs being quashed. 7. The counsel for the petitioner has lastly contended that the petitioner has acquired title by adverse possession or she has perfected title to the land in dispute by prescription ensuing from efflux of the statutorily mandated period. The respondents had unauthorisedly initiated proceedings for her eviction from the suit property, even when she had, a, remedy to institute a suit for declaration before a Civil Court qua hers having acquired title to it, by adverse possession. The said remedy has been contended to be now available, to, the petitioner. The respondents had unauthorisedly initiated proceedings for her eviction from the suit property, even when she had, a, remedy to institute a suit for declaration before a Civil Court qua hers having acquired title to it, by adverse possession. The said remedy has been contended to be now available, to, the petitioner. In face thereof the statutory bar enshrined, in, Section 15 of the H.P. Public Premises Act, against the Civil Court entertaining any suit or proceeding, in, respect of a person who is facing proceeding before the competent authority under the provisions of the H.P. Public Premises Act, is, not attractable to her. In other words, it is contended that till the decision by a Civil Court of competent jurisdiction on the core issue of hers having acquired title to the suit property by adverse possession, the proceedings at the instance of the respondents qua the land in dispute are lacking in legal force. True it is, that prior to the institution of the proceedings for eviction of the petitioner from the land in dispute, she had a right to institute a suit for declaration before the Civil Court qua hers being declared to be owner in possession of the land in dispute by way of adverse possession. During the pendency of such suit, she may have subject to all just exceptions tenably sought protection from the appropriate Court against the initiation of proceedings against her qua the land in dispute under the provisions of the H.P. Public Premises Act. However, she omitted to do so. In the face of non institution by her of a suit for declaration qua hers having acquired title to the land in dispute by way of adverse possession prior to the institution of instant proceedings, she, cannot, on completion of, as well, as, finalization of the adjudicatory process, envisaged under the provisions of the H.P. Public Premises Act, contend that, even, in the face of hers having undeterminedly acquired title to the suit property by way of adverse possession, she had a subsisting and vesting right to seek a declaration of hers having acquired title to the land, in, dispute in the manner aforesaid. If her contention is given leverage it would set at naught the entire proceeding initiated and concluded. Moreover, her claim to hers having acquired title to the land in dispute, hence, appears to be an afterthought and concoction. If her contention is given leverage it would set at naught the entire proceeding initiated and concluded. Moreover, her claim to hers having acquired title to the land in dispute, hence, appears to be an afterthought and concoction. It would be both unjust and legally insagacious to concede to her contention of hers having acquired title to the suit property even when she does not possess a declaratory decree to the said effect, constitute it to be an agitatable issue, even at this consummate stage, and then permit her, in, that garb to stall the entire proceedings. Adopting such a course would cause incalculable miscarriage of justice. 8. In view of the above discussion, we find no merit n the writ petition, which is accordingly dismissed, along with all the pending application(s), if any. No costs.