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2016 DIGILAW 1352 (HP)

RAJESH KUMAR v. STATE OF HIMACHAL PRADESH

2016-07-12

NARINDER CHAUHAN

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ORDER : 1. The revision petition preferred under Section 17 of the H.P. Land Revenue Act, 1954 (hereinafter referred to as 'the Act'), is directed against the order dated 16.12.2010, passed by the Id Divisional Commissioner, Shimla Division, in Revision No.292/2010, whereby the ejectment orders passed by all the Courts below have been upheld. 2. Briefly stated, the facts of the case are that on a report dated 16.6.2004 of Patwari Chopal, duly verified by the Field Kanungos on 21 9.2016. The A C.1st Grade, Chopal initiated proceedings under section 163, against the present petitioner Shri Rajesh Kumar for encroaching upon the Government land comprised in khasra no.79/2,area measuring 0-14 bighas, situated in Mauza Bodhana, Pargna Chanju, Tehsil Chopal, Distt Shimla, by planting 15 apple plants. During the course of pendency of the case, the area came under settlement operation, therefore a report was also called for from the settlement field agencies, who reported that Shri Rajesh Kumar, present petitioner has encroached upon land bearing old khasra no.79/2, as well as some part of khasra no.80,which have been denoted as new khasra no.739,measuring 0-14-82 hect. After affording an opportunity of being heard to Shri Rajesh Kumar, the A C.1st Grade Chopal vide order dated 11.6.2009, in case no. 16/04 ordered ejectment of the present petitioner under section 163 of the Act, from the land comprised in khasra no.739, measuring 0-14-82 hect. situated in Up-Mahal, Jaigarh, Mauza Bodhanna, Tehsil Chopal. 3. Feeling aggrieved with the ejectment order of the A C. 1st grade, Chopal, the present petitioner filed an appeal before the Collector, Sub-Division, Chopal on the grounds that proper procedure was not adopted and that the appellant is in peaceful and hostile possession over the suit land, that the impugned orders are not based on any evidence such as demarcation report etc. and the appellant has been condemned unheard. After affording an opportunity of being, heard and on perusal of the record, the Id. Collector vide order dated 06.03.2010, passed incase no. 02/10,dismissed the appeal upholding the ejectment order dated 11.6.2009,passed by the A C 1st Grade. 4. and the appellant has been condemned unheard. After affording an opportunity of being, heard and on perusal of the record, the Id. Collector vide order dated 06.03.2010, passed incase no. 02/10,dismissed the appeal upholding the ejectment order dated 11.6.2009,passed by the A C 1st Grade. 4. Therefore, the present petitioner filed a revision petition before the Commissioner, Shimla Division, on the grounds that both the courts below have referred to different khasra nos That the show cause notice was with respect to khasra no.79/2 while ejectment order is with respect to khasra no.80, that the petitioner is owner in possession of khasra no.81 and keeping in view the provision i of Chapter 10.10 of the H P Land Record Manual, demarcation should have been done by the Revenue Officer of not less than the rank of A.C.Ist Grade; that while the alleged encroachment was shown initially at 0-14 biswas, the eviction order has been passed of 0-14-82 hect., which is more than 2 bighas of land. The Id. Commissioner, after hearing the parties and on going through the records, rejected the revision petition no 292/2010, vive the impugned order dated 16.12.2010. 5. Hence, the second revision petition on grounds similar as were taken before the courts below. 6. I have heard the Id Counsel for both the parties. Ld. Counsel for the petitioner while reiterating the grounds of the revision petition, has laid emphasis on the issue that no demarcation was conducted in the presence of the petitioner, by the competent authority as the land owned by the petitioner bearing khasra no.81 is adjacent to the land purported to have been of the State of H.P. Further, that the possession of the petitioner over the suit land is very old and thus a question of title is involved in the matter which has not been decided by the A C. 1st Grade in a capacity of Civil Court, as per mandate of section 163(3) of the Act, hence, the orders passed by the trial court as well as the appellate and revisional authorities are illegal and without jurisdiction and thus liable to be set aside, by allowing the present revision petition. 7. Ld. Distt. 7. Ld. Distt. Attorney(Revenue appearing for the State has objected all the issues raised by the Id counsel from the petitioner and argued that the demarcation was conducted by the Assistant Collector (Settlement) while preparing the record during ,the settlement, for which he was fully competent to do so. It has been argued that the petitioner has admitted the factum of encroachment over the suit land He rejected the contention of the Id. Counsel for the petitioner that the possession of the petitioner over the suit land is very old and averred that it is clearly proved from the perusal of the report of the Patwari concerned dated 16.6.2004, reported that the petitioner has fenced the area and started digging pits for plantain. Lastly, it has been stated that there is no force in ; the arguments of the Id Counsel for the petitioner, therefore, the present revision is liable to be dismissed. 8. I have considered the agreements advanced on behalf of both the parties and have also gone through the records of the courts below. From the perusal of the case file of A C. 1st Grade, it is clear that the Field Kanungo has given a demarcation of the suit land in the presence of petitioner firstly on 21 04.2006 (report available at page-11/12) and thereafter the Field Kanungo (Settlement) has also demarcated the land in question on 21.06.2007 (report) available at page 31/32 and the petitioner in his statement dated 21.6.2006 and 13.1.2007 (available at page 27/28 and 23/24 of said file respectively) refused to accept the demarcation, but simultaneously, he admitted his encroachment over some part of Government land bearing khasra no.70/2, and refused to vacate the same. It is clear from the reports that the petitioner has encroached upon the Government land and during settlement operations the encroachment has been found on 0-14-82 hectares Government land which has been assigned a new khasra no. 739 during the settlement operations, in support of his claim of adverse possession, the petitioner has failed to produce any documentary evidence before the A.C. 1st Grade. Moreover, 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. Moreover, 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. In this regard, the Flon'ble (Justice Rajive Sharma) High Court of H P. in case Bishan Dass vs. State of H.P. 2011 (2) HLR 829 , has held that "if the Revenue Officer is satisfied that yes this question arises, only in those case, he has to determine this question as if he were a Civil Court". In the case in hand, the petitioner could not produce any substantial documentary evidence before the A.C 1st Grade, to establish his claim of adverse possession. Thus, the A.C.1st passed a well reasoned and detailed order on 11.6.2009, after affording the petitioner adequate opportunity of being heard, which has been further rightly upheld by the Id. Collector, Chopal in appeal by the Id. Commissioner, Shimla, in revision. Further, perusal of the file reflects that warrant of ejectment has also been issued twice but the same could not have been executed due to stay from the higher authorities. Moreover, earlier also encroachment proceedings against the petitioner had been conducted by the A.C.1st Grade vide order dated 23.3.1998 and 28.8.1898 passed in case no.33/95 in respect of Government land bearing khasra no.870/805/1, 870/805/2, 79/1, 80/1, measuring 3-7 bighas by executing warrant of ejectment on 27.6.2000. This discloses that the petitioner is habitual of grabbing Government land again and again and deserves to be dealt with in accordance with the provisions of section 163 of the Act strictly. 9. In view of the above, I do not find any illegality or irregularity having been committed by the courts below which warrant any interference from this court. The encroachers cannot be allowed to grab Government land in such a manner for which the Hon'ble High has also taken a serious view. Hence, the evictions orders passed by the A.C. 1st Grade on 11.6.2009 and further confirmed by the Id. Collector, Sub-Division, Chopal and by the Id. Commissioner, Shimla Division vide orders dated 6.3.2010 and 16.12.2010, respectively, are upheld. The revision petition is accordingly dismissed being, devoid of any merits. However, there will be a direction to the A.C. 1st Grade, Chopal to ensure eviction of the petitioner from the land in question immediately. 10. Collector, Sub-Division, Chopal and by the Id. Commissioner, Shimla Division vide orders dated 6.3.2010 and 16.12.2010, respectively, are upheld. The revision petition is accordingly dismissed being, devoid of any merits. However, there will be a direction to the A.C. 1st Grade, Chopal to ensure eviction of the petitioner from the land in question immediately. 10. Announced in the open court today the 12th July, 2016.The record of the courts below be returned and the file of this court be consigned to the record room after due completion.