Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 72 (HP)

Chandi Prasad v. State Of H. P.

2017-01-24

NARINDER CHAUHAN

body2017
ORDER Narinder Chauhan, I.A.S. - These revision petitions under section 17(4) of the H.P. Land Revenue Act, 1954 (hereinafter referred to as ''the act''), are based on the recommendations made by the Ld. Commissioner, Mandi Division, vide orders dated 5.7.2016, in Case No. 179/2015, 180/2015 and 181/2015. 2. Briefly stated, the facts of the case that on the basis of reports received from the field Patwari duly verified by the field Kanungo, the A.C. 1st Grade, Sadar, Mandi, initiated proceedings under section 163 of the Act, against the petitioner for un-authorized occupation over Government land comprised in khasra No. 55/1, measuring 0-11-11 bighas, khasra No. 750/409/1 measuring 0-15-11 bighas and khasra No. 500, measuring, 0-6-8- bighas, khasra No. 750/409/1 measuring 0-15-11 bighas and khasra No. 500, measuring 0-6-8 bighas, situated on Mauza Chadyara, Tehsil Sadar, Distt. Mandi. After providing an opportunity of being heard, the Id. A.C. 1st Grade, passed ejectment order dated 2.4.2014, against the present petitioner, in case Nos. 50/13,49/13 and 48/13, respectively. Feeling aggrieved with the above orders dated 2.4.2014, of the A.C.1st Grade, the present petitioner filed three separate appeals before the Ld. Sub-Divisional Collector, Sadar Mandi (registered as case No. 4/14, 5/14 and 3/14, respectively) on the grounds that the appellant is coming in continuous, peaceful, uninterrupted and hostile possession over the land on question for the last more than 40 years, and as such, he has acquired a little of ownership by way of adverse possession, that there have been previous proceeding against the appellant, relating to year 1981-82, initiated by PWD under H.P. Road Side Control Act, and thereafter by the revenue department during the year 1991, vide file No. 174/91, decided on 7.8.1991, which establishes the adverse possession. But denying the appellant an opportunity to produce evidence, the courts below have committed serious illegality and irregularity. After hearing the parties and on perusal of the record, the Id. Collector Sub-Division, Sadar Mandi, vide order dated 27.11.2004, dismissed all the appeals observing as follows:- "The appellant has used the same plea time and again and the facts have always gone against him. After hearing the parties and on perusal of the record, the Id. Collector Sub-Division, Sadar Mandi, vide order dated 27.11.2004, dismissed all the appeals observing as follows:- "The appellant has used the same plea time and again and the facts have always gone against him. In the instant case also, the appellant has himself admitted that proceedings were initiated under section of the Act during the year 1991 against the appellant and his two brothers namely Hira Singh and Biri Singh, who all had been ordered to be evicted from the land vide order dated 7.8.1991 in file No. 174/91. Therefore, the prosecution of the appellant as of now cannot be regarded as peaceful. 3. Dis-satisfied with the order of the Id. Collector, the present petitioner filed three revision petitions before the Commissioner, Mandi Division, on similar grounds as were taken before the Collector. After hearing the parties and on perusal of the records, the Id. Commissioner, vide orders dated 5.6.2016, passed in case Nos. 179/2015 and 181/2015, has recommended the matters to this court for setting aside the orders of the courts below and to remand the case to the A.C. 1st Grade, Sadar Mandi or to pass an appropriate order as may be deemed fit, observing as follows: "After perusal of the record of the court below it is revealed that the orders of the courts below are illegal land against the law. In these cases actually the action should have been taken under section 164(3) of the H.P. Land Revenue Act instead of under section 163(1) of the Act because there is an order of the Civil Court whereby the state has been restrained to interfere with the possession of the petitioner. But in due course of law, the Government is either to file suit for possession or proceeded under section 163(3) of the H.P. Land Revenue Act, 1954." 4. I have heard the Id. Counsel for the petitioner and Id. Distt. Attorney (Revenue), Mandi, appearing for the State/respondent. Ld. counsel for the petitioner while reiterating the grounds of the revision petition, argued that the petitioner has been condemned unheard as no opportunity has been provided to him to adduce evidence in support of his claim, which is against the principles of natural justice. Ld. Counsel for the petitioner and Id. Distt. Attorney (Revenue), Mandi, appearing for the State/respondent. Ld. counsel for the petitioner while reiterating the grounds of the revision petition, argued that the petitioner has been condemned unheard as no opportunity has been provided to him to adduce evidence in support of his claim, which is against the principles of natural justice. Ld. Counsel further argued that the petitioner is coming in continuous, peaceful, uninterrupted and hostile possession over the land in dispute for more than 40 years and as such he has acquired ownership by way of adverse possession. Ld. Counsel further averred that the eviction proceeding wee previously initiated against the petitioner during the year 1981-82, firstly by the PWD under the H.P. Road Side Control Act, and thereafter by the revenue department. Submitting a copy of judgment dated 30.8.2012, passed by the Ld. Distt. Court Judge, Mandi, the Ld. Counsel argued that the Civil Court has already granted an injunction in favour of the petitioner, restraining the State Government from dispossessing the petitioner from the land in question and thus he cannot be disposed or evicted from the land in question. Lastly, the Id. Counsel for the petitioner endorsed the recommendations of the Id. Commissioner, Mandi Division and urged to accept the same. 5. In reply, Id. Distt. Attorney, while objecting to the recommendations of the Id. Commissioner, argued that the Civil Court has in a way granted an injunction for not dispossessing the petitioner and that there is no legal bar to dispossessing petitioner by way of legal proceedings. Further, it has been averred that the Id. Collector has clearly observed that the petitioner has time and again encroached upon the same land as the petitioner and his brother were evicted from the same land in the year 1991. As such, the claim of adverse possession is not sustainable. Further, that the petitioner did not produce any documentary evidence before the A.C. 1st Grade, qua his long standing possession and as s such, the ejectment orders have been rightly passed against the petitioner which have been further upheld by the Id. Collector, as such, the recommendations made by the Id. Commissioner are not acceptable and the present revision petition is liable to be dismissed. 6. I have considered the arguments advanced by the Id. counsels for both the parties and have also gone the recommendations of the Ld. Collector, as such, the recommendations made by the Id. Commissioner are not acceptable and the present revision petition is liable to be dismissed. 6. I have considered the arguments advanced by the Id. counsels for both the parties and have also gone the recommendations of the Ld. Commissioner, Mandi Division as well as the record of the courts below. The main contention of the petitioner is that he has become the owner of the land in question by way of adverse possession. The Ld. Commissioner has also recommended the matter to this court on this plea of the petitioner and the judgment of the Ld. Civil Courts. From the bare perusal of the judgment dated 27.2.2012, passed by the Civil Judge (Jr. Div.) Court No. 3, Mandi, District Mandi in Civil Suit No. 10 of 2005/18 of 2011 titled Sh. Chandi Prasad v. Collector, D.C. Office Mandi and ors. , which has further been upheld by the Id. Addl. Distirct Court, Mandi, vide judgment dated 30.8.2012, delivered in Civil Appeal No. 56 of 2012-State of H.P. v. Sh. Chandi Prashad , it is clear that the Civil Courts have already adjudicated upon the issue of adverse possession. The Ld. Civil Judge (Jr. Div.) had framed a specific issue No. 2 qua this claim as follows:- "2. Whether the plaintiff has become the owner in possession of the suit land by way of adverse possession as prayed for ? The Ld. Civil judge in para 23 has decided this issue against the present petitioner and as such the plea of adverse possession automatically fails, in view of the Civil Court decision. Moreover, the Ld. Sub-Divisional Collector, has rightly pointed out that the present petitioner has already been evicted from the land in question along-with his brothers, in the year 1991, and he is encroaching upon the land in question time and again, and as such it cannot be construed or established that the petitioner is in peaceful, uninterrupted and hostile possession over the land. Furthermore the Civil Court has restrained the State Government from dispossessing the present petitioner without following the process of law. There is no bar from any court on eviction of the petitioner from the land in question by following the due process of law. Even the orders of Id. Furthermore the Civil Court has restrained the State Government from dispossessing the present petitioner without following the process of law. There is no bar from any court on eviction of the petitioner from the land in question by following the due process of law. Even the orders of Id. ADJ, dated 30.8.2012 in para 20, reveals that petitioner applied for regularization of encroachment as per 2002 policy, that the trial court denied the petitioner the relief of perfection of title by adverse possession and injunction granted was only to the effect of restraining the State from interfering over suit land except in due course of law. Accordingly the Ld. AC 1st Grade, Sadar Mandi, has passed the eviction orders against the petitioner after following the due process of law as envisaged in Section 163 of the Act. 7. In view of the above discussion, I am not in agreement with the recommendations of the Id. Commissioner, Mandi, Division, dated 5.7.2016, and as such the same are hereby declined. In fact been para 38 of the Id. AdJ., Mandi decision clearly states that the cannot be disposed from the suit land, otherwise than in due process of law. 8. However, it is clear from the record that the petitioner is trying to grab the government land on one pretext or to her and he is encroaching upon the same land repeatedly and in a brazen manner. It is also clearly proved from the record that the petitioner is deliberately trying to linger on the eviction proceedings so as to derive benefit from the Government land and as such he should be immediately evicted from the encroached land. In case, the petitioner endeavours to further prolong the eviction proceedings, the Assistant Collector, 1st Grade, should take recourse to sub-clause(C) of sub-section(l) of Section 163, of the Act which empowers a Revenue Officer to impose upon the encroacher a fine of 20,000/- or the prevalent market value of the land, whichever is higher, per bigha or part thereof, which shall be recoverable, as if it were an arrear of land revenue for causing loss and damage to the Govt. Property. Property. Besides, the Govt, of H.P, (Department of Revenue) vide its letter No.Rev.BE(3)-70/2012, dated 13.3.2013, which is based on the judgment passed by the Hon''ble High Court of H.P. in RSA No. 259 of 2002, dated 24.9.2012, has directed all the Revenue Officers in the State that they should also calculate the mesne profiles derived by the encroacher from the land under encroachment for the period of its illegal occupation which should be in addition to the fine calculated under section 163 mentioned above. The Assistant Collector, Sadar Mandi, is therefore directed to act accordingly. The present revision petitions are accordingly dismissed being devoid of merits. 9. Order be communicated to the parties. The record of the courts below be returned and the file of this court be consigned to the record room after due completion.