Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1633 (HP)

Mohar Singh v. State of Himachal Pradesh

2016-08-08

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the orders passed by the authorities constituted under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (for short ‘Act’), whereby the petitioner has been ordered to be evicted, the petitioner has approached this Court by filing the writ petition praying therein the following substantive relief:- “(1) That the Petitioner in the facts and circumstances prays that the annexure P/1 and P/2 may kindly be set aside and quashed and in the alternative Petition may kindly be remanded back to ACF Rampur for adducing evidence by the petitioner which opportunity was denied to the petitioner.” 2. The facts necessitating the filing of this petition are that eviction proceedings were initiated against the petitioner by respondent No.3 qua illegal encroaching of forest land DPF Bhorja Khasra No. 3/7, measuring 0-00-25 hectare whereupon the petitioner was alleged to have constructed Dhara/House. 3. On 26.05.2012, Naib Tehsildar, Nankhari, demarcated the land, thereafter encroachment challan was prepared and submitted by the Range Officer, Nankhari Range before respondent No.3 on 15.02.2013 and the case was accordingly instituted on 18.02.2013. Respondent No.3 issued notice to the petitioner, who appeared on 13.03.2013 and gave statement that he was ready to vacate the encroached land. Respondent No.3 on the basis of the undertaking given by the petitioner as also keeping in view the statements of the witnesses of the department examined during the course of the proceedings ordered eviction of the petitioner. However, the order passed by respondent No.3 came to be assailed in appeal before respondent No.2, who vide his order dated 02.11.2015 dismissed the appeal constraining the petitioner to file the instant petition on the various grounds taken in the petition. 4. The respondents have filed the reply wherein it has been submitted that though nothing survived for adjudication in view of the undertaking given by the petitioner, yet both the authorities took pain to decide the case on merits being totally uninfluenced by the undertaking given by the petitioner. We have heard the learned counsel for the parties and gone through the records of the case. 5. It would be noticed that not only respondent No.3, but even respondent No.2 had categorically held the petitioner to be bound by his undertaking as given on 13.03.2013 whereby he agreed to vacate the land in question. We have heard the learned counsel for the parties and gone through the records of the case. 5. It would be noticed that not only respondent No.3, but even respondent No.2 had categorically held the petitioner to be bound by his undertaking as given on 13.03.2013 whereby he agreed to vacate the land in question. But strangely enough the petitioner took no steps for recalling such undertaking and only contention now put forth by him is that the Collector, Forest, in a dramatic way had obtained his signatures on blank papers while he was mentally disturbed and undergoing treatment at PHC, Nankhari and IGMC, Shimla. 6. The defence put forth by the petitioner is clearly an afterthought because as observed earlier the petitioner over these years has not taken any steps for questioning the undertaking and is, therefore, bound by the same. There is no gainsaying that in case the petitioner had infact not given the undertaking as reflected in the order, then the only course open to him was to have called the attention of that very authority, who had made the record and have the same corrected. If no such steps were taken, the matter must necessarily end there. It is not open to a party to contend before the higher authority/Court to the contrary. This Court cannot launch into an inquiry as to what transpired before the authority. It is simply not done. Public policy and judicial decorum do not permit it. These matters are unquestionable. 7. In taking such view, we are fortified by the observations made by the Hon’ble Supreme Court in Central Bank of India versus Vrajlal Kapurchand Gandhi and another (2003) 6 SCC 573 wherein it was held as under:- “12. The only course open to a party taking the stand that an order does not reflect actual position is to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463 . In recent decisions i.e. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111 and Roop Kumar v. Mohan Thedani (2003) 3 Scale 611 the view in the said case was reiterated. In recent decisions i.e. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111 and Roop Kumar v. Mohan Thedani (2003) 3 Scale 611 the view in the said case was reiterated. Statements of fact as to what transpired at the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by an affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to a party to contend before this Court to the contrary. This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moved it contending that the order has not correctly reflected happenings in court.” 8. The petitioner would, however, contend that he was not afforded any opportunity to defend his case. To say the least, this claim to his knowledge is false. It is clearly evident from the records that respondent No.3 had conducted the proceedings on 13.03.2013, 09.04.2013, 04.06.2013, 05.07.2013, 13.07.2013 and it was the petitioner himself who on 13.03.2013 undertook to vacate the premises and, therefore, cannot be heard to complain that no opportunity had been afforded to him to defend the case. 9. Learned counsel for the petitioner would then argue that the petitioner had become owner by way of adverse possession of the disputed land and structure standing thereupon as the same had been in his possession for the last 45 years and even electricity meter and telephone connection had been installed in his house. 10. This plea is equally without force as admittedly the petitioner not only did choose to contest the case and rather gave an undertaking to vacate the premises (land and building) of his own volition. 10. This plea is equally without force as admittedly the petitioner not only did choose to contest the case and rather gave an undertaking to vacate the premises (land and building) of his own volition. Therefore, in such circumstances, the plea of adverse possession, as sought to be raised, at this stage, is clearly an afterthought and is otherwise not tenable or even available to the petitioner. 11. As regards the installation of electricity and telephone connections, the same is of no avail as the installation of these connections in no manner can legalize the encroachment made by the petitioner. 12. The petitioner is a rank encroacher and, therefore, any laxity in evicting the petitioner may result in destruction of right/title of the State to immovable property and give upper hand to such encroachers, unauthorized occupants and land grabbers. 13. Having said so, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending applications, if any, also stand disposed of.