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2015 DIGILAW 1127 (HP)

Mahar Chand v. State Of Himachal Pradesh

2015-08-18

NARINDER CHAUHAN

body2015
ORDER : The revision petition under section 17 of the H.P. Land Revenue Act, 1984 (in short the Act), is directed 'against the order dated 27.10.2001 passed by the (ADC), exercising the powers of Commissioner, Mandi District, at that relevant time, in case no.40/2000, whereby he has dismissed the revision petition filed before him by the present petitioner. 2. Briefly stated the facts of the case are that on the report of patwari halqua Dabrot, Tehsil Karsog, District Mandi, proceedings under section 163 of the Act, were initiated against the petitioner before the A.C. 1st Grade, Karsog, fore unauthorised occupation over Government land, adjacent to DPF Kulridhar, comprised in khasra nos.337/160//1 and 331/323/1 and 171, kita-3 area measuring 6-19-5 bighas situated in Mauza Chaman Tehsil Karsog. The Assistant Collector passed ex parte order of ejectment against the petitioner vide order dated 5.4.1991. The above order was set aside by the Collector, Sub-Division, Karsog in appeal vide order dated 8.10.1991, who remanded the case back to the Assistant Collector for a fresh hearing. 3. After remand, the matter was again processed by the A.C. 1st Grade, Karsog. The Assistant Collector, after giving adequate opportunity of being heard to the petitioner and considering his reply/averments, came to the conclusion that the petitioner failed to prove his long standing claim of adverse possession and, therefore, he again passed an ejectment order against the petitioner qua the aforementioned land and also imposed a fine of Rs. 6950/-, vide order dated 30.9.1997. Against this order, the petitioner again filed an appeal before the Collector, Sub-Division, Karsog, who vide order dated 21.9.1999, passed in case no. 9/99, upheld the order of the Assistant Collector and dismissed the appeal. Still dis-satisfied, the petitioner further filed a revision petition before the Commissioner, Mandi Division. The revision petition was transferred to the ADC, Mandi, who was vested with the powers of the Commissioner, Mandi Distt. He also dismissed the revision petition vide the impugned order dated 27.10.2001, by upholding the orders passed by the courts below. 4. Hence, this second revision petition haws been filed before this court on 4.8.2015, when the case was taken up for arguments. Ms Sneh Lata, Advocate appearing vice Shri Piyush Verma, Advocate, counsel for the petitioner, failed to argue the case. 4. Hence, this second revision petition haws been filed before this court on 4.8.2015, when the case was taken up for arguments. Ms Sneh Lata, Advocate appearing vice Shri Piyush Verma, Advocate, counsel for the petitioner, failed to argue the case. Therefore, she was directed to intimate the original counsel to file written arguments within one week, failing which the case would be decided on the basis of the record of the case and the grounds taken in the revision petition, But till to date, no written arguments have been received on behalf of the petitioner. 5. On the other hand, ld. Dy. D.A. (Rev) appearing on behalf of the State, iced that the respondent is continuously encroaching upon the Govt, land which is adjacent to the DPF. That the trial court has given adequate opportunity to the petitioner to prove his claim of adverse possession and having failed to do the Assistant Collector, has passed an ejectment order against him in accordance with the provisions of law on adverse possession, the ld. Dy A(Rev.) has cited (1997) SCC 567, (2010)2 SCC-461), and the judgment of our own High Court reported in [1997 STPL (111), (98(H.P), Prabhu Ram v. State of H.P.]. The ld. Dy.D.A. in view of the above cited authorities, has argued at both the appellate and the revisional authorities below have also rightly upheld the ejectment order of the Assistant Collector. 6. The main thrust of the averments made by the petitioner in his grounds Revision petition are that no evidence was led by the respondent/State in support of the allegations made and neither the petitioner nor his witnesses were cross-examined. That there was unrebutted and unchallenged evidence on record hat there was an apple and almond orchard on the land in dispute age whereof was more than 30 years and therefore with the passage of time, it had ripened into ownership. Further that the evidence in support of the defence led by the petitioner which was cogent reliable and trustworthy has been left out of consideration for no valid reasons, which has prejudiced the case of the petitioner. It has been therefore, prayed that the impugned order is against the principle of natural justice equity and fair play and suffers from material illegality and infirmity and deserves to be quashed and set aside. 7. I have considered the arguments advanced by the ld. Dy. It has been therefore, prayed that the impugned order is against the principle of natural justice equity and fair play and suffers from material illegality and infirmity and deserves to be quashed and set aside. 7. I have considered the arguments advanced by the ld. Dy. D.A.(Rev) for the State and taken into consideration the grounds of revision petition and have also gone through the record of the case on perusal of the case file of the trial court, it is clearly evident that after remand of the matter by the Collector, Karsog vide his order dated 8.10.1991, a fresh show cause notice to the petitioner was issued by the A.C. 1st Grade. In his written reply to the show cause notice, the petitioner had claimed adverse possession on the above encroached land and he was accordingly given opportunity to substantiate his claim of adverse possession. In support of his claim, the petitioner apart from himself, produced so other oral witnesses before the Assistant Collector. The oral evidence produced by the petitioner was not considered adequate to substantiate his claim lot adverse possession by the Assistant Collector who, therefore, vide order dated 30.9.1997, ordered his ejectment from the said Govt, land, apart from imposing a fine of Rs. 6950/- under section 163(12)(d) of the Act. 8. So far as the plea of adverse possession raised by the petitioner is concerned, it is deemed proper to discuss this issue in detail in view of law laid down by the Honble Supreme Court in its various judgments. The ingredients of adverse possession have been elaborately discussed by the Honble Apex Court in case D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC, 567, the Honble Supreme Court has held: Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a person who claims adverse possession should show: (a) On what date he came into possession, (b) What was the nature of his possession, (c) Whether the factum of possession was known to the other party, (d) How long his possession has contained, and (e) His possession was open and undisturbed, "A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." Further in case [Mandal Revenue Officer v. Goundhla Venkaaiah another (2010) 2 SCC, 461], the Apex Court has held: "...It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has preferred title by adverse possession, the court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to unauthorized occupants or land grabbers". 9. In the instant case, the petitioner failed to establish any of the ingredients as land down by the Honble Apex Court before the Assistant Collector during the course of preliminary inquiry qua encroachment proceedings conducted by him. As such, apparently, there was no occasion/reason before the Assistant Collector to consider and adjudicate upon the plea of adverse possession raised by the petitioner. It is a settled law that "mere raising of question of title of adverse possession, does not make it incumbent upon the Revenue Officer to accept it as he has to ascertain and determine whether such it question is involved or not. 10. In appeal before the Collector, Sub-Division, Karsog the ld. Collector has also rightly observed that settlement operations were completed in early seven times in Karsog, but no such possession of the petitioner has been found in the revenue record. As such the authority produced by the ld Dy. D A. (Rev.) i.e. "1997 STPL (111), 98(HP), in Prabhu Ram v. State of H P. " is quite relevant in this case wherein the Hon'ble High Court of H.P. has held: "Adverse possession-encroachment on Govt, land pleaded case that plaintiff in possession of the suit land for 40 years. No mention in the settlement records as settlement had taken place after the date of alleged possession-Oral evidence not worthy of credence for establishing the case of the plaintiff-findings of facts by Courts below on the basis of evidence on record against the plaintiff-second appeal liable to be dismissed". 11. Further, in revision petition before the Commissioner (ADC), Mandi the ld. Commissioner, has rightly, dismissed the revision petition having found no illegality or material irregularity committed by the courts below. 12. 11. Further, in revision petition before the Commissioner (ADC), Mandi the ld. Commissioner, has rightly, dismissed the revision petition having found no illegality or material irregularity committed by the courts below. 12. Besides, the petitioner has come up in second revision petition before this court against the impugned order of the Commissioner dated 27.10.2001 after a period of more than 9 years. It is also noteworthy that the original counsel for the petitioner Sh Piyush Verma Advocate, has never put in his appearance in this court, who was always represented through one or other vice counsel, and who repeatedly sought adjournments on his behalf. This attitude clearly proves the malafide intention and the dilatory tactics of the petitioner to linger on the ejectment proceedings pending against him. Since, it is clearly proved from the record that the petitioner is in unauthorized and illegal possession of the Govt, land and he is deliberately trying to linger on the eviction proceedings so as to derive benefit from the Govt. land, he should be immediately evicted from the encroached land. In case the petitioner endeavours to further prolong the eviction proceedings pending against him, the Assistant Collector should take recourse to sub clause(c) of sub-section (1) of Section 163 of the Act which empowers a Revenue Officer to impose upon the encroacher a fine upto Rs. 20,000/- per bigha or part thereof which shall be recoverable as an arrear of land revenue for causing loss and damage to the Govt, property. Apart from above the Govt, of H.P, (Department of Revenue) vide its letter No. Rev. BE(3)-70/2012 dated 13.32.2013, which is based on the judgment passed by the Honble High of H P in RSA No.259 of 2002, dated 24-9-2012, has directed all the Revenue . Officer in the State that they should also calculate the mesne profits derived by the encroacher from the land under encroachment for the period of the illegal occupation which should be in addition to the fine calculated under section 163 mentioned above. The Assistant Collector, Karsog, is therefore directed to act accordingly. 13. In the light of above discussion, I find no force in the present second revision petition and the same is dismissed. 14. Announced in the open court today the 18th August, 2015. The Assistant Collector, Karsog, is therefore directed to act accordingly. 13. In the light of above discussion, I find no force in the present second revision petition and the same is dismissed. 14. Announced in the open court today the 18th 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.