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2015 DIGILAW 1722 (HP)

JESONS IMPEX PRIVATE LTD. NAHAUN v. STATE OF H. P

2015-11-26

NARINDER CHAUHAN

body2015
ORDER : 1. Order his revision petition under section 17 of the H.P. Land Revenue Act, 1954, has been preferred against the order dated 26.09.2014, passed by the Ld. Commissioner, Shimla Division in revision petition No. 193 of 2013 vide which the order dated 30.08.2012, passed by the Collector, Sub-Division, Solan in appeal No.2/8 of 2012 and order 30.12.2011, passed by the Ld. A.C. 2nd Grade, Kasauli, in case No. 12/XIII-A of 2010, have been upheld. 2. Briefly stated, the facts of the case based on the report of field revenue agency, the AC 2nd Grade, Kasauli, initiated proceedings under section 163 of the H.P. Land Revenue Act, 1954 against the petitioner for encroachment on Government land comprised in khasra No. 103/1, area measuring 0-0-04 bighas (kam-aj-biswa), situated in Mauza Nahaun, Pargana Pasal, Tehsil Kasauli, DIstrict Solan, by raising concrete wall on general path and passed the eviction orders against the petitioner on 30.12.2011, in case No. 12/XIII-A of 2010. 3. Feeling aggrieved, the present petitioner preferred an appeal No.2/8 of 2012 before the Collector, Sub-Division, Solan mainly on the ground that the there is no evidence, much less legal evidence or record on behalf of the State/Respondent to prove alleged encroachment over the Government land in dispute; that neither the Village Revenue Officer who is alleged to have prepared the illegal encroachment report dated 3.11.2010 nor the Field Kanungo concerned who is alleged to have verified the illegal tatima have been examined on oath before the Ld. Trial Court nor they have stepped into the witness box to prove the alleged report and tatima. That even the alleged report and tatima have not been exhibited on record; that no tatima can be prepared without demarcation and the Patwari and Kanungo were not competent to conduct demarcation of the land in question. That the conduct of the Ld. Trial Court is totally biased against the appellants which is clear from the hastiness, eagerness and quickness on its part and also evident from the fact that the Ld. Court even did not wait for the appeal period of 30 days from the date of passing the impugned order and it has been mentioned in the impugned order that a warrant of ejectment be issued accordingly and sent to the Naib Tehsildar Settlement Jabli at Koti for its execution within 15 days. Court even did not wait for the appeal period of 30 days from the date of passing the impugned order and it has been mentioned in the impugned order that a warrant of ejectment be issued accordingly and sent to the Naib Tehsildar Settlement Jabli at Koti for its execution within 15 days. That the SPA was not allowed and proper opportunity of being heard has not been provided. The Ld. Collector, Sub-Division, Solan dismissed the appeal vide his order dated 30.08.2012 observing as follows:- "I have carefully gone through the-record placed on the case file ana given due consideration to the arguments put forth by the Ld. Counsel for both the parties. The perusal of the record reveals that the Assistant collector, IInd grade Kasauli has issued the order after following proper procedure and I do not find any defect in the order. Hence, the order passed by the lower Court is upheld and the Appeal is dismissed." 4. The petitioner, agitated the aforesaid order of the Collector, Sub-Division, Solan, by filing further revision petition No. 193/13, before the Ld. Commissioner, Shimla who after hearing the parties and going through the record, dismissed the same. Hence, the present revision petition. 5. Both the parties filed written arguments which were taken on record. The Ld. Counsel for the petitioner has stressed the grounds raised in the petition (almost similar as were before the first appellate authority below) and stated that the Ld. AC IInd Grade, Kasauli, proceeded without providing an opportunity to defend the case and in violation of the principle of natural justice, fair hearing and the procedure prescribed under the Act. It has further been argued that the impugned order passed by the Ld. Commissioner, Shimla Division are bad in law, based upon surmises and conjectures, non-appreciation of the provisions of Act, principle of natural justice and fair hearing as he has uphold the order of Ld. AC 2nd Grade, which has been passed hastily and arbitrarily without, following the proper procedure of law, taking any evidence, much less legal evidence on record and is against the principle of natural justice. AC 2nd Grade, which has been passed hastily and arbitrarily without, following the proper procedure of law, taking any evidence, much less legal evidence on record and is against the principle of natural justice. It has been argued that the present petitioners are the owners in possession of the land, which is situated just adjacent to the land owned by the State Government and in the said circumstances the case of encroachment on any piece of land can only be proved by conducting a legal, valid and complete demarcation, but no such demarcation was ever carried out at the spot at any point of time nor the same had been placed on the case file and the petitioners have been dragged into litigation simply on the report of Village Revenue Officer. Further that tatima could only be prepared after proper demarcation land in dispute at spot that too in accordance with the instructions issued by the Financial Commissioner from time to time, which have not been followed in the present case. It has further been contented that the demarcation was required to be given by competent authority as the Patwari and Kanungo were not competent to demarcate land in dispute. He has cited AIR 2000 HP 130 in support of his contention, it has also been submitted that after receipt of the notice the petitioners had appointed Shri Chander Gopal Puri to look after their property as per details given in the Special Power of Attorney, but the Ld. Assistant Collector, 2nd Grade did not accept the said SPA without assigning any legal, valid and proper reason and on as per para No.3 of the impugned order he did not accept the presence of SPA and on the other hand in para No.4 of the order, it has been mentioned that neither the petitioners nor their SPA appeared having full knowledge of the date of hearing, whereas the SPA holder was present before him on the said date of hearing. Lastly, it has been prayed that the present petition may be allowed and the impugned order dated 26.09.2014 passed in Petition No. 193 of 2013 by the Ld. Commissioner, Shimla Division be quashed and set aside in totality. 6. In reply the Ld. Dy. Lastly, it has been prayed that the present petition may be allowed and the impugned order dated 26.09.2014 passed in Petition No. 193 of 2013 by the Ld. Commissioner, Shimla Division be quashed and set aside in totality. 6. In reply the Ld. Dy. DIstrict Attorney (Revenue) appearing on behalf of respondent State has submitted in its written arguments that the AC 2nd Grade, Kasauli has rightly initiated the proceeding under section 163 of the H.P. Land Revenue Act, 1954, against the petitioners for encroaching upon the Government land in question. He has argued that petitioner did not appear in person or through attorney even after issuance of repeated notices that on 30.12.2011 vide letter dated 30.12.2011 presented before AC 2nd Grade a special power of Attorney along with Xerox copy was produced before the AC 2nd Grade in which C.G. Puri has prayed for adjournment of the hearing and the AC 2nd Grade has not accepted the plea for the reasons that he has been appointed as SPA to look after manage and control landed property of the original owners which is situated at village Slevla P.O. Jabli, Tehsil Kasauli DIstrict Solan, not to appear in the present case of encroachment upon Government land situated at village Nahaun, Tehsil Kasauli Distt. Solan. It has further been submitted that since the date of case was well within the knowledge of the petitioners or their so called SPA but none of them appeared deliberately despite knowledge as such the AC 2nd Grade, Kasauli has rightly proceeded ex-parte against them and decided the case on merit on 30.12.2011. Hence, the assertion of the petitioner that they were not afforded any opportunity is against the facts and law. It has been further submitted that the respondents preferred an appeal before the court of Sub-Divisional Collector, Solan against the said order of the AC 2nd Grade the Ld. Collector vide his order dated 30.8.2012 has dismissed the same after hearing on merit and thereafter the petitioners went to the Commissioner, Shimla Division in revision petition and Ld. Commissioner vide his order dated 26.9.2014 has dismissed the revision petition after providing reasonable opportunity of being heard. Hence, the contention of the petitioner that the orders of the Ld. Commissioner, Shimla Division are bad in law is also against law and fact. Lastly, it has been submitted that the Ld. Commissioner vide his order dated 26.9.2014 has dismissed the revision petition after providing reasonable opportunity of being heard. Hence, the contention of the petitioner that the orders of the Ld. Commissioner, Shimla Division are bad in law is also against law and fact. Lastly, it has been submitted that the Ld. AC 2nd Grade has rightly passed the ejectment orders against, the petitioner who has encroached upon the Government land by raising concrete wall on a general path and the Ld. Courts below has rightly upheld the eviction orders so passed by the trial court, hence the present revision petition deserves to be dismissed in the interest of justice and fair play. 7. I have considered the arguments submitted by the Ld. Counsels for both the parties and carefully gone through the contents of revision petition and record of courts below. From the perusal of the report of the Patwari and Kanungo concerned (available at page 3-4 of the file of AC 2nd Grade), on the basis of which encroachment proceedings have been initiated against the petitioner it is not clear as whether encroachment has been done by Shri Lalit Seth son Sh. Inder Narayan Seth, Smt. Praveen Sethi wife of Sh. Lalit Seth, Rishi Seth son of Sh. Lalit Seth, Gautam Seth son of Sh. Lalit Seth, Smt. Pooja Sethi wife of Sh. Rishi Seth and Smt. Vani Seth wife of Gautam Seth in their capacity as individuals or by the petitioner company, because the land in question falls between the land owned by both the parties (i.e. petitioner and individual holders). Further, perusal of the record reveals that the petitioner deserved one more opportunity at tine level of AC 2nd Grade when written request was made for adjournment of the case. Moreover, it appears that the land in question is contiguous to the land owned by the petitioners and in such cases, as has also been held by the Hon'ble High Court of H.P. in Manna v. State of H.P., 2007 (2) Cur. L.J.(H.P.), until demarcation is not made by following the procedure prescribed under Section 107 of the H.P. Land Revenue Act, 1954, appellant cannot be evicted from the land in dispute. L.J.(H.P.), until demarcation is not made by following the procedure prescribed under Section 107 of the H.P. Land Revenue Act, 1954, appellant cannot be evicted from the land in dispute. Hence, in such cases where encroachments are alleged to be made on the Government land adjacent to owned land of individual a proper demarcation should be done in the presence of all the interested parties, strictly in accordance with the instructions issued by the Financial Commissioner from time to time, to avoid unnecessary prolong litigation. Where area under encroachment is very small, like in the instant case where it is 0-00-04 Bighas, the Revenue Officer concerned i.e. Tehsildar/Naib Tehsildar, as the case may be, should visit the spot to get the land demarcated in his presence so that general public is not dragged unnecessarily in litigation. However, it is also made clear here that no leniency should be provided to the encroachers which would encourage general public to encroach upon the Government land contiguous to their own land. In the instant case, it appears that proper demarcation has not been done in the presence of all the interested parties. 8. Keeping in view of the foregoing observations, the order dated 26.09.2014, passed by the Ld. Commissioner, Shimla Division in revision petition No.193 of 2013; the order dated 30.08.2012, passed by the Collector, Sub-Division, Solan in appeal No.2/8 of 2012 and order 30.12.2011, passed by the Ld. A.C. 2nd Grade, Kasauli, in case No.12/XIII-A of 2010 are set aside and the matter is remanded to the Ld. AC 2nd Grade, Kasauli for fresh decision in accordance with the law with the direction to demarcate the land in question in the presence of all the parties interested and afford reasonable opportunity of being heard. Further, considering the encroachment is of 0-00-04 bigha, it should be further examined if such shortfall or obstruction to path can be made good from other land owned by company or individuals. This of course would depend upon the encroachment being established on a re-demarcation. 9. Orders be communicated to the parties. The records of the courts below be returned and file of this court be consigned to the record room after due completion.