Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1964 (HP)

Dharam Chand v. State Of Himachal Pradesh

2015-12-23

NARINDER CHAUHAN

body2015
JUDGMENT : Narinder Chauhan, I.A.S. - This revision petitioner has been preferred under Section 17 of the H.R Land Revenue Act, 1954 (hereinafter referred to as the Act), against the order dated 10-05-2011, passed by the Id. Commissioner, Kangra Division, in case no. 127/2008, whereby he has dismissed the appeal of the present petitioner by upholding the order dated 18-03-2008, passed by the Collector, Sub-division, Dharamshala, in case No. 37/2006, thereby affirming the ejectment order dated 28.2.2006, passed by the A.C. IInd Grade, against the petitioner under section 163 of the Act for unauthorized possession over the Govt. land. 2. Brief facts of the case are that on the report of filed revenue agencies, the A.C.IInd Grade, Dharamshala initiated encroachment proceedings under section 163 of the Act, against the petitioner for encroachment over Government land bearing khasra no. 1923/1424/1, area measuring 0-02-63 hectares, situated in mohal Sidhpur, Mauza Ghaniara, Tehsil Dharamshala, Distt. Kangra by constructing thereon a shop and residential house. In reply to the show cause notice, the petitioner refused his encroachment stating that the land in question is in his possession since the time of his ancestors. He also urged that the land in question be exchanged with khasra no. 1424/2, measuring 0-01-26 hect. which was allowed to be entered in his possession as hasab rasad malguzari hisadar by the A.C.IInd Grade, vide order dated 2.5.1994, on the filing of an application of correction of revenue entries. The Id. A.C.IInd Grade, after considering the reply field by him and by affording due opportunity of being heard, passed ejectment order against the petitioner on 28.2.2006, in case no. 5/NT/94. 3. Feeling aggrieved with the above order dated 28.2.2006, of the A.C.IInd Grade, the present petitioner Shri Dharam Chand, filed an appeal before the Collector, Sub-Division, Dharamshala refusing his possession over the land in question on the ground that the A.C.IInd Grade while decided his application for correction vide order dated 2.5.1994, wherein khasra no. 1424/2 area measuring 0-01-26 hectares has been described to be corrected but the revenue agency has given possession of wrong khasra no. The Id. Collector, after framing issues, dismissed the same vide order dated 18.3.2008, passed in case no. 37/2006, upholding the ejectment order dated 28.2.2006, passed by the A.C.IInd Grade, Dharamshala. 4. 1424/2 area measuring 0-01-26 hectares has been described to be corrected but the revenue agency has given possession of wrong khasra no. The Id. Collector, after framing issues, dismissed the same vide order dated 18.3.2008, passed in case no. 37/2006, upholding the ejectment order dated 28.2.2006, passed by the A.C.IInd Grade, Dharamshala. 4. Still aggrieved, Shri Dharam Chand (present petitioner) filed a revision petition before the Commissioner, Kangra division, who after hearing and examining the record dismissed the same, vide the impugned order dated 10.5 2011, upholding the order of the Collector, Dharamshala. Hence, this second revision petition. 5. I have heard the Id. counsel for the petitioner while none appeared for the State/respondent. Ld. counsel for the petitioner has reiterated the grounds of the revision petition wherein the petitioner has contended that the Id. Commissioner, has not appreciated the legal plea that the petitioner has become owner of the suit land by adverse possession, in such, circumstances, the A.C.IInd Grade, had no jurisdiction to deal with the matter and only A.C. 1st Grade, was competent to decide the dispute by trying the same as a civil court. That the petitioner being proprietor in the Shamlat has every right in the suit land and was never dispossessed from the same at any point of time and no inquiry was conducted and no notice was issued to the right holders as per H.P. village Common Lands(Vesting & Utilization) Rules, 1975 and therefore it cannot be said that the said land ever vested in the State of H.P.; that the same has been wrongly vested in Panchayat, and the proceedings under section 163 of the Act cannot be initiated by passing ejectment order against him, unless/unlit question of vestment is first decided. Lastly, it has been averred that neither any opportunity of being heard was provided to the petitioner to prove his case nor the demarcation was conducted in his presence, therefore, the orders passed by the courts below are liable to be set aside. 6. On perusal of the case file of the A.C.IInd Grade, it is clear that the notice was issued to the petitioner for 1.7.2004, which was received by his son, and on 1.7.2004, the petitioner along with his counsel Shri M.G. Sharma, Advocate, was present, who continuously attended the court in subsequent dates and also filed reply to the notice on 30.9.2004, which has been duly considered. Therefore, this plea of the petitioner is incorrect. 7. From the above pleadings a question arises, as to whether the land in dispute attracts the provisions of Section 163 of the H.P. Land Revenue Act, 1954 being 'shamlat' land which have been recorded in the ownership column as Shamlat Deh Hasab rasad Mai Guzari and in the column of possession as 'Kabza Swayam Bartan Bartandaran. 8. On perusal of copy of jamabandi for the year 1998-99 of the land in dispute available at page 19 of the trial court file, the land bearing khasra no. 1923/1424, measuring 0-04-64 hectares, is recorded in the ownership of "Shamlat Deh Hasab Rasad Mai Guzari" and in the column of possession as Kabza Swayam Bartan Bartandaran and is classified as charand bila drakhtan. This shows that the land in question is village common land and as per provisions of section-5 of the H.P. Village Common Lands(Vesting & Utilization) Act, 1974 attracts the provisions of section 163 of the H.P. Land Revenue Act, 1954, if encroached upon by any person. The provisions of Section 5 the H.P. Village Common Lands(Vesting & Utilization) Act, 1974 are as follows:- Section 5: "Treatment of enforcements on shamlat land or the lands vested in the State Government-Where the land vested in the State Government or the shamlat land by whatever term it is recorded in the revenue records, which has not vested in the State Government, has been encroached upon by any person or co-sharer before or after the commencement of this Act the Revenue Officer may of his own motion or on the report of the Patwari of the circle duly verified by the Kanungo of the circle or on the application of any estate right holder or co-sharer, eject such person in accordance with the provisions of section 163 of the H.P. Land Revenue Act, 1954". Hence from the above discussion, it is clear that the land in question attracts the provisions of section 163 of the H.P. Land Revenue Act, 1954, and the A.C.IInd Grade, has rightly proceeded against the petitioner under the said section and passed the eviction order on 28.2.2006, which has further been upheld in appeal by the Id. Collector and then by the Id. Commissioner in first revision petition. Collector and then by the Id. Commissioner in first revision petition. Rest of the issues raised by the petitioner have already been discussed in detail by the Collector, Sub-Division in appeal and decided rightly in accordance with the provisions of law. 9. So far as the claim of the petitioner qua land bearing khasra no. 1924/1424, measuring 0-01-26 hectares, obtained through correction of revenue entries vide order dated 2.5.1994, of the A.C.IInd Grade is concerned, the same does not appear in accordance with law as the A.C.IInd Grade, was/is not competent to make such correction in the column of possession of revenue record as per the provisions of both the enactments referred to above. Hence, the question of giving wrong possession and further proposal for exchange of such land, does not arise. Hence, no illegality or irregularity has been found; to have been committed by the courts below which warrant any interference of this court: in the present form by filing the second revision petition are liable to be upheld and the; revision petition which has no merits, is accordingly dismissed. 10. Order be communicated. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.