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2016 DIGILAW 252 (HP)

Ram Parkash v. State of Himachal Pradesh

2016-03-15

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition has been instituted against Judgment dated 7.12.2011 rendered by learned Additional District Judge, Mandi, District Mandi, Himachal Pradesh in Civil Miscellaneous Appeal No. 17 of 2011. 2. ?Key facts" necessary for the adjudication of the present petition are that eviction proceedings were initiated against the petitioner for eviction of the government land under the HP Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (hereinafter referred to as 'Act' for convenience sake). Notice was issued to him under Sub-section (1) of Section 4 of the Act. It was found that the petitioner has encroached upon the suit land and was causing hindrance to the use of the road. Ext. PW-2/A is Aks Tatima in respect of Khasra Nos. 1088/304/1 and 1088/304/2. It was prepared by Patwari Halka Karsog and verified by Field Kanungo Karsog and rechecked by Assistant Collector 2nd Grade (Naib Tehsildar) Karsog. Sub Divisional Collector, Karsog, after hearing the parties, ordered eviction of the petitioner from Khasra No. 1088/304/1 and No. 1088/304/2 measuring 0-2-8 and 0-1-0 Bigha, respectively, situated in Mohal Karsog/416, Tehsil Karsog, District Mandi. Petitioner filed an appeal before the learned Divisional Commissioner against the eviction order dated 5.6.2006. He dismissed the appeal on 16.10.2008. 3. Thereafter, petitioner filed a suit for declaration and consequential relief of permanent prohibitory injunction in respect of Khata No. 278 Khatauni No. 400, Khasra No. 1388/1257 measuring 0-1-0 Bighas situated at Mohal Karsog/416. According to the plaintiff (petitioner) suit land was originally allotted to Bhimu under Nautor scheme. Thereafter, it went to Smt. Guddi Devi. She had constructed a shop over it and was holding the same as absolute owner. Plaintiff purchased this land vide sale deed No. 542 dated 29.10.2001 and mutation was attested in his favour on 23.11.2001. Thereafter, Sub Divisional Collector passed eviction order against the petitioner. According to the averments made in the plaint, Assistant Engineer was not competent to move the petition and Sub Divisional Collector was not authorised to adjudicate the same. No notice was issued by Sub Divisional Collector. Spot map proved before Sub Divisional Collector was wrong. Demarcation was conducted by Field Kanungo and adjoining land was not correctly measured. Appeal has also not been decided in accordance with law. 4. Suit was contested by the respondents-defendants (hereinafter referred to as 'defendants' for convenience sake). No notice was issued by Sub Divisional Collector. Spot map proved before Sub Divisional Collector was wrong. Demarcation was conducted by Field Kanungo and adjoining land was not correctly measured. Appeal has also not been decided in accordance with law. 4. Suit was contested by the respondents-defendants (hereinafter referred to as 'defendants' for convenience sake). According to the defendants, they have never preferred petition under the Act for vacation of suit land rather subject matter of the petition was land comprising in Khasra No. 1088/304/1 measuring 0-2-8 Bigha and Khasra No. 1088/304/2 measuring 0-1-0 Bigha. Assistant Engineer was competent to file the complaint. Sub Divisional Collector had the jurisdiction to adjudicate upon the same. Issues were framed by the Civil Judge (Senior Division), Karsog, District Mandi. He returned the plaint to the plaintiff on 21.6.2011. Petitioner filed an appeal before the learned Additional District Judge, Mandi. He dismissed the same on 7.12.2011. 5. Mr. G.D. Verma, learned Senior Advocate, has vehemently argued that the complaint filed by Assistant Engineer, could not be ordered to be transferred by the ADM to the Sub Divisional Collector, Karsog. However, fact of the matter, is that Sub Divisional Collector has necessary jurisdiction to decide the complaint filed under the HP Public Premises and Land (Eviction and Rent Recovery) Act, 1971. Petitioner had appeared before the Sub Divisional Collector and filed written statement. Petitioner has not led any evidence to establish that the house has been constructed by him on the suit land and not on the government land. Complaint before the Sub Divisional Collector pertained to Khasra Nos. 1088/304/1 and 1088/304/2 and not qua the suit land. Suit land as per the complaint is Khasra No. 1388/1257. 6. Mr. G.D. Verma, learned Senior Advocate also argued that the demarcation was not conducted in accordance with law. However, fact of the matter is that there is a detailed demarcation report. Demarcation was conducted by Field Kanungo and it was verified and checked by the Assistant Collector 2nd Grade (Naib Tehsildar), Karsog. In the demarcation report, encroachment on Khasra Nos. 1088/304/1 and 1088/304/2 was detected. Copy of the Tatima/spot map is Ext. PW-2/A. Order passed against the petitioner by the Sub Divisional Collector on 5.6.2006 and by the Divisional Commissioner dated 16.10.2008 are in conformity with law. These orders have attained finality. In the demarcation report, encroachment on Khasra Nos. 1088/304/1 and 1088/304/2 was detected. Copy of the Tatima/spot map is Ext. PW-2/A. Order passed against the petitioner by the Sub Divisional Collector on 5.6.2006 and by the Divisional Commissioner dated 16.10.2008 are in conformity with law. These orders have attained finality. The same could not be assailed before a Civil Court in view of specific bar under Section 15 of the Act. 7. Accordingly, there is no merit in the present petition and the same is dismissed, so also the pending applications, if any.