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2016 DIGILAW 1045 (HP)

Deen Chand v. State of H. P.

2016-06-14

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Mansoor Ahmad Mir, J. The petitioner, by the medium of instant writ petition, has prayed for the following reliefs: “(i) That this Hon’ble Court may be pleased to call for the records of the case and after examining the legality and proprietary of the notice Annexure P-1 and the impugned orders Annexure P-6 and Annexure P-9, this Hon’ble Court may be pleased to quash the impugned Notice Annexure P-1, impugned orders Annexure P6 and Annexure P-9 and direct that the petitioner be given due opportunity and the matter be heard afresh. (ii) To quash the impugned orders Annexure P-6 and P-9 and direct the respondents to associate the petitioner in fresh demarcation in accordance the law for establishing whether the land and property of the petitioner comes within the portion of the UPF 3rd class or whether it falls within the abadi area of the village Telang Kothi Choparsa.” 2. Brief facts, as are emerging from the pleadings of the parties, are that during the demarcation conducted by the revenue authorities, the petitioner was found to have made encroachment over the forest land. On noticing the encroachment, the Patwari of the concerned Circle submitted a Tatima, duly verified by the Kanungo concerned, to the Forest Department, where after, challan was sent by respondent No.1 i.e. Range Officer, Bhuthi, District Kullu to respondent No.2, Divisional Forest Officer, Kullu Forest Division, exercising the powers of Collector under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971, for initiating proceedings against the petitioner for eviction. The Collector issued a show cause notice, dated 12th February, 1998, (Annexure P-1), to the petitioner in terms of Section 4(i) of the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971, (for short, the Act), whereby the petitioner was asked to show cause why action be not drawn against him in accordance with law, for his being in unauthorized occupation of the forest land. 3. The petitioner, vide Annexure P-2, filed reply to the said show cause notice. During the pendency of the proceedings, on the request of the petitioner, the Collector ordered fresh demarcation of the property in dispute by the Tehsildar. The Tehsildar deputed the Field Kanungo along with Patwari Halqua to demarcate the same. The said Field Agency, after issuing notice to all concerned, demarcated the land in dispute. During the pendency of the proceedings, on the request of the petitioner, the Collector ordered fresh demarcation of the property in dispute by the Tehsildar. The Tehsildar deputed the Field Kanungo along with Patwari Halqua to demarcate the same. The said Field Agency, after issuing notice to all concerned, demarcated the land in dispute. The petitioner did not remain present, but his son, namely, Dile Ram was present on the spot during the demarcation. The Field Kanungo found the petitioner to be in unauthorized possession, prepared the report and submitted the same to the Tehsildar, who, in turn, forwarded the same to the Collector. 4. The petitioner chose to contest the proceedings before the Collector on the plea that he was not in unauthorized possession. It was also pleaded that the demarcation conducted was not as per law. In the alternative, it was also pleaded that his continued adverse possession has ripened into ownership. 5. The Collector, on the basis of the reports submitted by the Patwari and the Field Kanungo, referred to above, and the material placed on record, ordered the eviction of the petitioner from the land in question being in unauthorized possession. 6. The petitioner, feeling aggrieved, challenged the said order passed by the Collector before the Divisional Commissioner, by way of filing appeal, which was also dismissed. While dismissing the appeal, the Divisional Commissioner observed that the Field Kanungo had properly conducted the demarcation and that the Collector had afforded sufficient opportunity to the petitioner to adduce evidence, in which the petitioner had failed. It is apt to reproduce the relevant paragraph of the order passed by the Divisional Commissioner (Annexure P-9), hereunder: “I have considered the arguments put forth by the present parties, gone through the record of the lower court and law. It transpires from the record that the proper demarcation of the disputed land has been carried out by the Field Kanungo on 21.04.2006 which has been submitted by him through Tehsildar Kullu to the Collector, Forest Division, Kullu. Secondly, it is also on the record that the lower court has provided an opportunity to the appellant to adduce his evidence by issuance of summons on 31.07.2002, 02.09.2002, 05.12.2002, 21.03.2003, 10.03.2003, 17.04.2003 and 04.12.2003 which were received by him but he did not produce any evidence before the lower court and the lower court was forced to close his evidence under such situations. Hence, the contentions of the appellant that he has not been provided any opportunity to adduce his evidence and also that the demarcation of the disputed land has not been carried out by any revenue authority, are not tenable. Therefore, there is no force in the present appeal.” 7. The petitioner has impugned both the orders of the Collector and of the Divisional Commissioner by the medium of this writ petition. 8. Respondents No.1 and 2, along with the reply filed to the writ petition, have annexed Annexure R-4, copy of order passed by the Collector for re-demarcation of the land in dispute, wherein it has been categorically recorded that in case, on re-demarcation, any encroachment is found to have been made by the petitioner, he was willing to vacate the same in favour of the Forest Department. In rejoinder, the petitioner has neither denied the contents of Annexure R-4 nor has challenged the same. 9. What transpires from the above discussion is that the petitioner, while praying for the re-demarcation of the land, had shown willingness to surrender the possession of the land in question, in case, on re-demarcation, he was found in unauthorized possession. The Collector, during the pendency of proceedings before him, acceded to the request of the petitioner and ordered the Tehsildar to re-demarcate the land in dispute. The Tehsildar further ordered the Field Kanungo and the Patwari Halqua, who demarcated the land in question after issuing notice. During the course of demarcation, the petitioner chose not come to the spot, but his son Dile Ram remained present. In addition, official from the Forest Department and the Ward Panch were also present on the spot. After demarcation, the report was submitted by the Field Kanungo in which it was clearly mentioned that the petitioner was in unauthorized possession of the land in question. The petitioner has not questioned the said demarcation report, which was conducted by the Field Kanungo and the Halqua Patwari, duly authorized in that behalf by the Tehsildar concerned. Therefore, it does not lie in the mouth of the petitioner to argue at this stage that the said demarcation was not conducted in accordance with law or was conducted by an official who was not competent to do so. 10. Therefore, it does not lie in the mouth of the petitioner to argue at this stage that the said demarcation was not conducted in accordance with law or was conducted by an official who was not competent to do so. 10. The Collector, while coming to the conclusion that the petitioner was in unauthorized occupation, has referred to the evidence and the demarcation reports made by the Kanungo and the Patwari Halqua. The Appellate Authority i.e. the Divisional Commissioner also recorded that the petitioner was provided many opportunities by the Collector to adduce evidence, but he has failed to produce any witness, is suggestive of the fact that the petitioner was in unauthorized possession. It was for the petitioner to carve out a prima facie case that the Collector and the Appellate Authority have passed the orders without competence or jurisdiction or the orders so passed are not legally correct, in which also the petitioner has failed. Moreover, the writ petition, as discussed hereinabove, involves disputed question of fact, which cannot be gone into by the writ Court. 11. Apart from the above, there is another aspect of the case. The conduct of the petitioner is not reliable, since he has taken contradictory pleas. In one breath, the petitioner has claimed that his possession was not unauthorized and in the second breath, it has been claimed that the possession of the petitioner was adverse and has ripened into ownership. Therefore, it can also be inferred that the petitioner knew that he was in possession of the parcel of land of which he was not the owner. 12. It appears that the petitioner invoked the jurisdiction of this Court on the basis of equity. It is well settled principle of law that a person who seeks equity must do equity. In the instant case, the petitioner has not approached this Court with clean hands, therefore, cannot claim relief on the basis of equity. 13. The proceedings were initiated against the petitioner by the Collector in the year 1998 and the instant writ petition is on the docket of this Court for the last more than seven years, despite willingness given before the Collector, referred to hereinabove, has not surrendered the unauthorized possession, is suggestive of the fact that the petitioner has misused the process of Revenue Courts and of this Court also. 14. 14. Having glance of the above discussion, there is no merit in the writ petition filed by the petitioner and the same is dismissed with costs to the tune of Rs.50,000/-, payable by the petitioner to the H.P. State Legal Services Authority, Shimla. 15. Pending CMPs, if any, also stand disposed of.