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Himachal Pradesh High Court · body

2015 DIGILAW 1966 (HP)

AMAR SINGH v. STATE OF H. P.

2015-12-23

NARINDER CHAUHAN

body2015
ORDER : 1. The revision petition under section 17 of the H.R Land Revenue Act (in short referred as the Act), is based on the recommendations made by Ld. Commissioner, Mandi Division, in Case No. 251 of 2011, for alleging the present revision petition by way of setting aside the orders passed by A.C. IInd Grade and the Settlement Collector, Kangra, with a direction to the Sub-Divisional Collector, Hamirpur, to proceed under the relevant provisions of H.P. Village Common Lands (Vesting & Utilization) Act, 1974 (in short the Act of 1974) or pass appropriate orders as may be deemed fit. 2. Briefly stated, the facts of the case are that on the complaint of the residents of Mohal Ghanal Kalan, Mauza Bajuri, Tehsil & Distt. Hamirpur, the Patwari halqua, prepared an encroachment case against the petitioner Shri Amar Singh for unauthorized occupation over the Govt. land comprised in khasra nos. 1204/963/1 (3-13K), 1204/963/2(0-13K), 1219/994/2(0-19K), 1206/963/2 (1-3K) 1219/994/2(1-18K), kita-5, total area measuring 8-6 kanals, situated in Mohal Ghanal Kalan, Mauza Bajuri, Tehsil & Distt. Hamirpur, H.P. Consequently, the A.C. IInd Grade (Settlement) issued a show cause notice to the petitioner under section 163 of the Act for ejectment from the above land. The petitioner filed a detailed reply to the notice raising various objections regarding the said encroachment. The Assistant Collector, after affording adequate opportunity to the petitioner and after going through the entire record produced by the petitioner in support of his averments, turned down the objections and passed an ejectment order against the petitioner vide orders dated 16.08.2010, in case no. 16/2008. Feeling aggrieved with the above orders of the Assistant Collector, the petitioner filed an appeal before the Collector Settlement, Kangra division, who after hearing the parties and after perusal of the record, passed a detailed order, dismissing the appeal on 06.04.2011, in case no.37/10/S.O. by affirming the orders of the Assistant Collector. 3. Thereafter, the petitioner filed the present revision petition before the Commissioner, Mandi division, inter alia, on the grounds that he is in possession of the land in question from the time of his ancestors, and the land comprises a fruit bearing orchard, a house constructed thereon and the bamboo clusters etc. 3. Thereafter, the petitioner filed the present revision petition before the Commissioner, Mandi division, inter alia, on the grounds that he is in possession of the land in question from the time of his ancestors, and the land comprises a fruit bearing orchard, a house constructed thereon and the bamboo clusters etc. Further that the entries in the revenue record were changed wrongly and illegally firstly as Shamlat, then in the name of Gram Panchayat, and finally in the name of the State of H.P. without following the provisions of the Act of 1974; and lastly that in case the petitioner does not succeed in proving the said vestment to be wrong and illegal then in that event he is owner in possession over the same by way of adverse possession. 4. The Ld. Commissioner, after hearing the parties and on perusal of the records while recommending the case to this court has mainly relied on the judgment of the Honble High Court of H.P. delivered in RSA No. 349 and 358 of 1998, titled as State of H.P v. Milthan Singh (dead) through LRs. reported in Latest HLJ 2011 (HP) 693. The Ld. Commissioner, thus relying on the interpretation of law given by the Honble High Court has held that the ejectment order and the proceedings taken up under encroachment also do not hold good in the present case and he has, therefore, recommended the matter to this court. 5. I have heard the Ld. counsel for the petitioner and the Ld. ADA, Hamirpur, on behalf of the respondent/State. The Ld. counsel for the petitioner has reiterated the grounds taken in the revision petition, and has vehemently supported the recommendations made by the Ld. Commissioner and urged for acceptance of the revision petition. On the other hand, the Ld. ADA, has objected to the recommendations stating that if the petitioner had any grievance against the vestment of shamlat land in the State of H.P. then he could have agitated the matter before the Collector, under section 4 of the Act of 1974. 6. I have considered the arguments advanced on behalf of both sides and perused the record of the courts below. As stated above, the recommendations made by the Ld. Commissioner are mainly based upon the judgment of the Hon'ble High Court, mentioned in para 5 supra. 6. I have considered the arguments advanced on behalf of both sides and perused the record of the courts below. As stated above, the recommendations made by the Ld. Commissioner are mainly based upon the judgment of the Hon'ble High Court, mentioned in para 5 supra. However, on perusal of the judgment delivered by the High Court, it is borne out that the facts in the above RSAs. are quite different from the facts of the present revision petition. In the RSAs the land in dispute was recorded as 'Shamlat Deh Hasab Hissa Mai Guzari, which was possessed by Makbuja Bashindgan Chak, in the revenue records prior to its vestment in the Govt. of H.P under the Act of 1974, and the plaintiff was recorded in possession thereof as co-owner as per the Revenue records. It is in these circumstances that the Honble High Court has held: the Collector was required to have proceeded under the provision of sub section (5) and (6) of section 3 of 1974 Act to take the possession of the suit land. 7. Here, in the instant case, no such entry in favour of the petitioner or their predecessor-in-interest has been found recorded in the Revenue records. A detailed procedure has been laid down regarding vestment of shamlat lands in the name of State Govt. under the Act of 1974. Section 3 of the Act deals with vesting of rights in the State Govt. Clauses (a), (b) and (c) of sub section (1) of Section 3 mentions the various description of lands on which ail rights, title and interests including the contingent interests, if any, of the landowner in the lands in any estate shall stand extinguished and all such rights, title and interest shall vest in the State Govt. free from all encumberances. Further sub-section (2), clauses (a), (b) and (c) mentions the conditions to which the provisions of sub-sections (1) of this section shall not apply. Section 4 of the Act deals with Treatment of leases made by Panchayats where the Collector is required to examine the record of such leases and hold a detailed enquiry and thereafter pass a detailed order in each case based on such record. Further Section 5 deals with 'Treatment of encroachments on lands vested in the State Government. 8. Section 4 of the Act deals with Treatment of leases made by Panchayats where the Collector is required to examine the record of such leases and hold a detailed enquiry and thereafter pass a detailed order in each case based on such record. Further Section 5 deals with 'Treatment of encroachments on lands vested in the State Government. 8. Thus, from the above mentioned provisions of the Act it is clear that if the petitioner or their predecessor-in-interest were aggrieved with any proceedings undertaken qua the land under their possession, they should have raised the matter before the Collector under the relevant provisions of the Act of 1974. Here, prima facie, no such issue appears to have been raised before the Collector. Thus, at this stage when ejectment order has already been passed against the petitioner, it would be inconsistent with the provisions of the Act of 1974 to ask the Collector to take cognizance of the matter after a lapse of more than 30 years and direct him to proceed under the provisions of the Act. 9. Even, from the record of the trial court it is established that before the AC IInd Grade the petitioner has failed to prove that the shamlat land under their possession was wrongly vested in the name of the State Govt. Thus, the judgment of the Honble High Court referred to above is not applicable in the present revision petition. 10. 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 R. Hanumaiah & another v. Secy. to Govt. of Karnataka Revenue Dept. & others (2010) 5 SCC 203 , wherein it has been held: All lands which are not the property of any person or which are not vested in a local authority belong to the government. All unoccupied lands are property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. All unoccupied lands are property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government; Whether the plaintiff has produced title deeds tracing the title for a period of more than 30 years; or Whether the plaintiff has established his adverse possession to the knowledge of the Government for a period of more than 30 years, so as to convert his possession into title. In case D.N. Venkatarayappa v. State of Karnataka, (1997) 7 SCC, 567, the Apex Court has also 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 pure question of law but a blended one of the fact and law. Therefore, 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 continued. (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 Venkaiah & 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 perfected 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 immoveable property and give upper hand to the encroachers, unauthorized occupants or land grabbers." 11. In the instant case, the petitioner failed to establish any of the ingredients has laid down by the Honble Apex Court before the Assistant Collector during the course of preliminary inquiry qua encroachment proceedings conducted by him. In the instant case, the petitioner failed to establish any of the ingredients has laid 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 or adverse possession, does not make it incumbent upon the Revenue Officer to accept it as he has to ascertain and determine whether such a question is involved or not. 12. The A.C. IInd Grade (Settlement), Circle Hamirpur, has passed a detailed order dated 16-8-2010, of ejectment against the petitioner from the Govt. land after affording him ample opportunity of being heard. Further, in appeal the Settlement Collector has also passed an elaborate and exhaustive order discussing each issue raised by the petitioner before him. Thus, the orders passed by both the court below do not warrant any interference of this court and are, therefore, upheld. 13. In view of the facts stated above the recommendations made by the Ld. Commissioner are declined and the revision petition is accordingly dismissed 14. Order be communicated to the parties. Record of the courts below be returned and the file of this court be consigned to the record room after due completion.