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2015 DIGILAW 1016 (HP)

SHIV RAM v. STATE OF H. P

2015-08-04

NARINDER CHAUHAN

body2015
ORDER : 1. The revision petition under Section 17 of the H.P. Land Revenue Act, 1954 (hereinafter referred as the Act'), has been preferred against the orders dated 25-02-2010, passed by the Commissioner, Shimla Division, in revision petition No. 25/2008, whereby the revision petition of the present petitioner has been dismissed and the orders of ejectment passed by the courts below have been upheld. 2. The case has a chequered hIstory, having its genesis in the year 1969, when based on the report of patwari Halqua, Sandhu, Tehsil Theog, encroachment proceedings under section 163 of the Act, against Shri Kansia son of Sadh, the predecessor-in-interest of the present petitioner, in respect of land comprised in khasra no. 49/1, measuring 3-13 bigh is, situated in Chak Kathal, Tehsil Theog, Distt. Shimla, were initiated and an ejectment order was passed by the A.C. Ist Grade, Theog, vide order dated 6.12.1969. In appeal before the Collector, Mahasu, Shri Kansia did not succeed but however the Ld. Collector directed vide his order dated 25.8.1970, that the case of the appellant may be considered for grant of the land on market price, to be worked by the Tehsildar, in view of his long standing possession over the land. The appellant was directed to deposit the market price within three months. However, instead of availing the above offer, Sh. Kansia chose to file a civil suit in the court of Sub-Judge, Shimla, where he failed and in appeal before the Addl. Distt. Judge, Shimla, he also did not succeed. 3. A warrant of ejectment was issued by the A.C 1st Grade, Theog, against Sh. Shiv Ram, petitioner on 18.9.1989, who was found to be in possession over the encroached land after the death of Shri Kansia, being his son and successor. In compliance with the above warrant, the Field Kanungo on 20.1.1993, handed over the possession of the encroached land to the Pradhan, Gram Panchyat, Sandhu. 4. Thereafter a series of appeals were filed by Shri Shiv Ram, petitioner, before the Collector, Sub-Division, Theog, and three times the case was remanded back to the A.C. Ist Grade, who repeatedly passed ejectment orders against the petitioner. 4. Thereafter a series of appeals were filed by Shri Shiv Ram, petitioner, before the Collector, Sub-Division, Theog, and three times the case was remanded back to the A.C. Ist Grade, who repeatedly passed ejectment orders against the petitioner. Once the petitioner was even given proprietory rights qua the encroached land by the A.C. Ist grade vide his order dated 20.8.1998, which order was, however, set aside by his successor vide order dated 28.12.2001, after taking necessary review permission from the Collector. This order of the Assistant Collector was however again set aside in appeal by the Collector, who remanded the matter back to him vide his order dated 19.6.2003, for conducting a thorough inquiry after affording due opportunity to the parties concerned. However, the Assistant Collector again upheld his order of ejectment vide his order dated 18.2.2006. 5. The petitioner apparently filed another appeal before the Collector, Sub-Division, Theog, who for the first time upheld the above order of the A.C. Ist Grade, vide his order dated 18.12.2006, in case no. 6-VIII-2006, and dismissed the appeal. Even then, the petitioner filed a review application before the Collector, who dismissed the same vide order dated 6.12.2007, passed in case no. 2-VIII-2007, holding that there is no error apparent on the face of the record and neither is there any clerical mistake which is proposed to be corrected by way of review. 6. Finally, aggrieved with the orders passed by the Collector, dated 18.12.2006, the petitioner has assailed the same before the Commissioner, Shimla division, who vide the impugned order dated 25.2.2010, has upheld the ejectment order passed by both the courts below. 7. Hence, this is a second revision petition filed before this court. During the arguments none was present on behalf of the petitioner on 16.6.2015, when the case came up for arguments, despite service of summons through his counsel Shri Virender Kanwar, Advocate, and through the daughter of the petitioner. However, instead of dismissing the revision in default, it was considered appropriate not to delay the matter further and also in the interest of justice and equity, to decide the case on merits after taking into consideration the grounds of the revision petition, which have been duly considered. 8. However, instead of dismissing the revision in default, it was considered appropriate not to delay the matter further and also in the interest of justice and equity, to decide the case on merits after taking into consideration the grounds of the revision petition, which have been duly considered. 8. The averments of the petitioner are based on his contention that the courts below have overlooked the proposition that the A.C. Ist Grade, while passing the order dated 18.2.2006, failed to comply with the direction of the Sub-Divisional, Collector, dated 19.6.2003, and he instead of conducting a fresh trial, has relied upon the order of his predecessor, which order had already been set aside by the Collector, Theog. The petitioner has, therefore, urged that the orders of the A.C. Ist Grade, dated 28.12.2001, and 18.2.2006, and the orders of the Collector, Sub-division, dated 28.12.2006 and 6.12.2007 as well as the order of the Commissioner dated 25.2.2010 be set aside and the order passed by the A.C. Ist Grade, Theog, be upheld. It has been finally prayed that proceedings under section 163 of the HP. Land Revenue Act, be quashed as the ownership rights have been conferred on the petitioner and the revenue courts has no jurisdiction over the matter. 9. During the arguments, Ld. Dy. D.A. (Rev.) has based his arguments on para no. 6 and 7 of the order of the Commissioner viz-a-viz, that the petitioner has lost his case in the Civil Courts also, and the order dated 20.8.1998, passed by the A.C. Ist Grade, giving proprietary rights to the petitioner has not been passed as a Civil Court and its a stray order which was subsequently set aside by his successor after seeking review permission from his superior. Further, that the petitioner had already been ejected from the encroached Land and possession was handed over to the Fradhan, Gram Panchayat, Sandhii' in the year 1993, which land has been subsequently re-encroached by the petitioner. The Land belongs to the Govt. and the petitioner has no locus standi to encroach the Govt. land from which he has already been ejected. 10. The Land belongs to the Govt. and the petitioner has no locus standi to encroach the Govt. land from which he has already been ejected. 10. On appreciation of the averments made by the petitioner and on perusal of the records, it is found that the contention of the petitioner that the order passed by the Assistant Collector, Theog, in capacity of Civil Court be upheld since the order passed by the Collector, Sub-division, Theog, dated 19.6.2003 has not been complied with and therefore the subsequent order passed in consequence therefore by the Assistant Collector, dated 18.2.2006 may be quashed, is found to be untenable and unjustified. Needless to say that the above order dated 20.8.1998, was passed by the A C. Ist Grade, without following the procedure as laid down in section 163(3) of the Act which clearly mandates: when there is question as to title or to the adverse possession "wherein the possession as claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made under this section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade may proceed to determine the question, as if he were a civil court and shall exercise all such powers as are exercisable by a civil court." 11. It is clearly evident from the record that the Assistant Collector, while passing the above order has not followed the procedure to be adopted while functioning as a Civil Court as prescribed under the law. No issues with regard to long standing possession of the petitioner as claimed by him, had been framed by the A.C. Ist Grade, nor any findings thereon, had been given by him. Moreover, when the predecessor-in-interest of the petitioner had already lost his case regarding adverse possession in the Civil Courts, there was no reason for the Assistant Collector to have adjudicated on the same matter again. Hence this contention of the petitioner is unsustainable in law and rejected. 12. Apart from the above, apparently, both the orders of the Collector, Sub-Division, Theog, dated 9.6.1993 and 31.3.1997, were contrary to the facts proved on the file of the A.C. Ist Grade since the predecessor-in-interest of petitioner Shri Kanshia could not prove his claim of adverse possession in the Civil Courts. 12. Apart from the above, apparently, both the orders of the Collector, Sub-Division, Theog, dated 9.6.1993 and 31.3.1997, were contrary to the facts proved on the file of the A.C. Ist Grade since the predecessor-in-interest of petitioner Shri Kanshia could not prove his claim of adverse possession in the Civil Courts. Therefore, there was no reason for the Collector to have directed the A.C. Ist Grade, to conduct an inquiry regarding long and continuous possession of the petitioner over the land in question and further to decide his application for regularisation in accordance with settled policy of the Govt., as directed by him vide his order dated 9.6.1993. 13. Similarly, the subsequent order of the Collector dated 31.3.1997, holding that the proceedings under section 163 of the Act were to be taken against the person who had actually encroached upon the suit land after the death of Shri Kanshia, was also not sustainable, because of the fact that the Halqua Palwari, Sandhu, in his report dated 28.3.1989, duly endorsed by the Field Kanungo, available at page 51/52 of the file of the A.C. Ist Grade, clearly made a mention of the fact that Shri Kanshia had expired about 4-5 years back and that his son Shri Shiv Ram, was found to be in possession of the encroached land where apple plants were grown. 14. The Ld. Commissioner, in revision petition, has also minutely gone into the details of the case and the various issues raised before her which have been further reiterated in second revision petition before this court. The Ld. Commissioner, after having gone into the details of the case has rightly observed that this case is a clear case of violation of laws with impunity wherein despite ejectment having been effected once, the petitioner has re-encroached the Govt. land and such lawlessness needs to be curbed. 15. Thus, from the above sequence of events, it is clearly evident that the petitioner's intention from the very beginning has been to linger on the ejectment proceedings by mis-using the process of law. As a matter of fact, the petitioner has no locus standi to grab the Govt. land when he has already lost his case in the Civil Court and also he has failed to take advantage of the option given to his predecessor to get the land on market value. 16. As a matter of fact, the petitioner has no locus standi to grab the Govt. land when he has already lost his case in the Civil Court and also he has failed to take advantage of the option given to his predecessor to get the land on market value. 16. In order to curb and to prevent encroachment on the Govt. land, sub-section (c) of Section 163 of the Act, has been enacted which empowers a Revenue Officer to impose upon the encroacher a fine upto Rs. 20,000/- per bighas or part thereof, which shall be recoverable as if it were an arrear of land Revenue. Further, sub-section (2) of Section 163 of the Act, lays down: "If a person who has been evicted from any land under this section again occupy the land without authority for such occupation, he shall be punished with imprisionment for a term which may extend to one year, or with fine which may extend to Rs. 40,000/- or with both: Provided that no court shall take cognizance under this sub- section of an offence unless a report in writing is made by a Revenue Officer not below the rank of Assistant Collector, First Grade." 17. Given the fact that the petitioner has already been evicted from the Govt. land in the year 1993, when possession of the encroached land was handed over to the Pradhan, G.R Sandhu, the A.C. Ist Grade, is directed to take recourse to sub-section (2) of Section 163 of the Act quoted above, and make a report in writing to the competent court so that the petitioner could be penalised as per law. 18. In view of the above stated reasons, there is no substance in the present revision petition, which is accordingly, dismissed. 19. Announced in open court today the 4th August, 2015. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.