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2018 DIGILAW 1429 (HP)

Amar Chand v. Punjab State Electricity Board

2018-08-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present Regular Second Appeal is maintained by the appellant, who was defendant No.1 before the learned trial Court (hereinafter to be called as “defendant No. 1”), laying challenge to the judgment and decree, dated 7.12.2017, passed by the learned Additional District Judge-II, Mandi, District Mandi, H.P. (Jogindernagar Court), in Civil Appeal No. 1/14 of 2011, whereby the judgment and decree, dated 1.4.2011, passed by learned Civil Judge (Senior Division), Jogindernagar, District Mandi, in Civil Suit No.193 of 2005, was affirmed, wherein suit of the plaintiff was decreed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that respondents No.1- 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. plaintiff (hereinafter to be called as “the plaintiff”) maintained a suit for declaration and possession alleging that prior to the Independence of the country, the Mandi State was under the Sovereignty of Raja of Mandi and all the properties within the Mandi State were under the ownership of Raja of Mandi. It is averred that an agreement was entered into between Raja Darbar Mandi and State of India in council of the one part and the Lt. His Highness Raja Joginder Sen Bahadur Raja at Mandi on 3.3.1925. The agreement was signed at Lahore by A.R. Astbury Esquire, officiating Secretary to the Government of Punjab, Public Works Department building and road branch for and on behalf of Secretary of State for India in council and by order of the Governor of Punjab. By this agreement, the land in dispute along with other lands was transferred permanently for establishment of Hydel Project which were required for the purpose the said project in construction of benefit of grant of electricity to the Darbar. The land was given on lease to the Government free of charge. In lieu of the land, the Darbar was to be given electricity for the use or sale within the Mandi State free of charge subject to maximum limit of half of one percent of the peak load capacity of the power station situated in Mandi State. This agreement was executed for a period of 99 years and the same was agreed to be renewed on such terms, as may be agreed upon between the parties. This agreement was executed for a period of 99 years and the same was agreed to be renewed on such terms, as may be agreed upon between the parties. This project took about seven years for its completion and provided electricity to his Highness Raja Joginder Sen till he remained alive more especially in 1947 when partition took place. After the independence of the country, Ministry of Home Affairs, vide notification dated 8th March, 1956 in exercise of powers conferred upon it under sub clause (d) clause (8) of section 2 of the Indian Officials Secrets Act, 1923 declared the Shanan Power House, its head works at Barot and Haulgeway as prohibited place and in the said notification, the total area transferred to the Shanan Power house were distinctly described by area, as also by boundaries. In the year 1966, the Re-organization of State of Punjab, Haryana and Himachal Pradesh, took place as per the provisions contained in Punjab Re-organization Act, 1996. Under the Punjab Re-organization Act Shanan Power House though situated within the State of Himachal Pradesh was allocated and allotted to the Punjab State, as per the direction of the Central Government. The State of Punjab had also constructed another dam on its own expenses which was allotted by the Central Government of Himachal Pradesh. The Himachal Pradesh Government objected to the grant of Shanan Power house in favour of the State of Punjab and made a representation to the Central Government seeking a clarification from it and in the year 1972 clarification was given vide letter dated 2nd March, 1972, wherein the allotment of assets of the Shanan Power House in favour of the plaintiff. Right from the year 1925, the plaintiff has been in possession of the entire Shanan Power House. Plaintiff is owner of the land measuring 1-1-1 bighas, situated over Khasra No.251, situated in Mauza Shanan, Tehsil Jogindernagar, District Mandi, H.P. Defendant No.1 moved an application to the plaintiff for grant of license to run dhaba and the plaintiff allotted the land, measuring 8’x6’ at Shanan to run dhaba from 15.2.1996 on half yearly rental of Rs.125/- and defendant No.1 also asked to execute the license deed within 10 days of the receipt of letter, but defendant No.1 did not execute any lease deed within the stipulated date despite repeated reminders and notices sent to him. Defendant No.1 tendered rent upto 20.6.2002, thereafter, the plaintiff served several notices and asked defendant No.1 to vacate the premises immediately, but despite the said notices, defendant No.1 did not vacate the premises, rather, he maintained suit before the learned Court below and obtained interim order. The said dhaba being run by defendant No.1, is adjacent to the power house and from the security point of view, it is also unsafe particularly when the whole Shanan Power Project notified by the Central Government under the Official Secrets Act, as prohibited area. The number of unauthorized persons visited dhaba during odd hours and thereby increase the security threat to the power house. The plaintiff required the premises for its own use, therefore, requested the defendant No.1 to vacate the same, but the defendants taking undue advantage of the help rendered by the plaintiff is not vacating the premises in question. Defendant No.2 even without associating the plaintiff has got the mutation of ownership entered in its name. Defendant No.2 have no right, title and interest over the property, therefore, mutation of the ownership is wrong and not binding upon the right of the plaintiff. 3. Defendant No.1 resisted and contested the suit by filing written statement and raising preliminary objections qua maintainability. On merits, it is submitted that during the trial pending before the learned Court in another suit titled Sansar Chand vs. Union of India, on the application of defendant, the lease was granted of a piece of land in favour of the defendant to construct and start dhaba to provide food and other facility to the employees of the project. Defenant No.1 remained paying the rent upto 2004, but the plaintiff refused to take any rent and tried to eject the defendant unlawfully and after the lease, the defendant has raised two rooms and one small verandah over the granted land immediately by spending Rs.50,000/- out of his own pocket. Defendant No.2 filed separate written statement in which he has taken preliminary objections of maintainability, jurisdiction, cause of action, valuation. On merits, defendant No.2 denied all the avements made by the plaintiff and according to him, Himachal Pradesh Government is owner of the suit land and its possession was recorded in the name of electricity department PWD Punjab. No change in the revenue record has been made. 4. On merits, defendant No.2 denied all the avements made by the plaintiff and according to him, Himachal Pradesh Government is owner of the suit land and its possession was recorded in the name of electricity department PWD Punjab. No change in the revenue record has been made. 4. From the pleadings of parties, the learned trial Court framed following issues : “1. Whether the plaintiff is owner of the land comprised in Khasra No.251 land measuring 1-1-1 bighas, as alleged in the plaint ? OPP. 2. Whether the plaintiff is entitled to recover the use and occupation charges from the defendant at the rate, as claimed in the plaint ? OPP. 3. Whether the plaintiff is entitled to get the possession of this land back, as alleged ? OPP. 4. Whether this suit is not maintainable on account of filing of eviction petition before Sub Divisional Collector, Jogindernagar? OPD. 5. Whether the suit is liable to be stayed under Section 10 of CPC, as claimed in the written statement ? OPD. 6. Whether the defendant No.1 Sh. Amar Chand has raised disputed premises on the suit land by spending Rs.50,000/- with the consent of the plaintiff, if so its effect ? OPD. 7. Whether no reply and notice is served upon the defendant No.2 ? OPD. 8. Whether the plaintiff has no locus standi to file the present suit ? OPD. 9. Whether the plaintiff has no cause of action to file the present suit ? OPD-2. 10. Whether this Court has no jurisdiction to try and entertain the present suit ?OPD-2. 11. Relief.” 5. The learned trial Court after deciding Issues No.1 to 3 in affirmative, Issues No.4 to 10 in negative, decreed the suit. 6. Feeling aggrieved thereby defendant No.1 maintained first appeal before the learned Additional District Judge-II, Mandi, District Mandi, (Jogindernagar Court), assailing the findings of learned Trial Court being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court affirmed the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal. 7. Learned counsel appearing on behalf of the appellant has argued that the findings of learned Courts are below without appreciating the facts and evidence, which have come on record to its true perspective and the same are required to be set aside. Now, the appellant has maintained the present Regular Second Appeal. 7. Learned counsel appearing on behalf of the appellant has argued that the findings of learned Courts are below without appreciating the facts and evidence, which have come on record to its true perspective and the same are required to be set aside. On the other hand, learned counsel for the respondent No.1 (plaintiff) has argued that the plaintiff is owner-in-possession of the land and the defendant is an authorized possession and has no right to continue with the suit land. 8. Learned Additional Advocate General, has argued that the judgments and decrees passed by the learned Courts below are without appreciating the facts and documents, which have come on record to its true perspective and required to be interfered with. 9. In rebuttal, learned counsel appearing on behalf of the appellant has argued that even as per the case of plaintiff, defendant No.1 was allowed to run tea stall, in a small portion of land on lease basis. 10. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 11. After going through the record, it is clear that plaintiff is owner-in-possession of land comprised in Khasra No.251, land measuring 1-1-1 bighas. The plea of the appellant-defendant No.1 is that license was granted by the plaintiff for running dhaba and after the lease, he has spent about Rs.50,000/-, out of his own pocket and constructed two rooms and one small verandah. But, in the instant case, Amar Chand-defendant No.1 has come with a plea that lease was granted in his favour, but he has claimed the ownership, so he cannot take up two pleas at the same time. The presumption of truth is attached to the records of right, but it is rebut table only by cogent and reliable evidence. The plaintiff specifically pleaded that after the reorganization of the Punjab State in the year 1966, Ministry of Home Affairs, made the allocation of the assets and liabilities of Punjab, Haryana and Himachal Pradesh and thereafter, made notification, dated 1.5.1967, issued by the Government of India, Ministry of Irrigation and Power and Shanan Power Project was allotted to the Punjab Electricity Board. It also transpires that the Government of Himachal Pradesh, at that time objected it after due deliberation on 24.2.1972 and Government of India, issued clarification, vide notification, dated 22.3.1972, Ex.PW3/4, whereby reaffirmed and verified the allotment of assets of Shanan Power House in favour of the plaintiff. Therefore, it is clear on the record that the plaintiff became owner-in-possession of the property in question after allocation of the assets on the basis of the distribution of the assets amongst the State of Himachal Pradesh, under Reorganization Act, 1966. So, the learned Courts below have committed no illegality in coming to the conclusion that the appellant is in authorized possession of land bearing Khasra No.251. The presumption of truth is attached to the records of right and the only inference can be drawn that it is respondent No.1, who is owner-inpossession of the suit land. So, the judgments and decrees passed by the learned Courts below are based upon after appreciating the pleadings and documents, which have come on record to its true perspective. Therefore, it cannot be said that the judgments and decrees passed by the learned Courts below are illegal and perverse and contrary to the oral as well as documentary evidence available on record and the suit is rightly decreed. There is no substantial question of law, which requires to be answered in the present appeal. 12. In view of the above discussion, the appeal of the appellant is without merit, deserves dismissal and is accordingly dismissed. However, in the peculiar facts and circumstances of the case, this Court finds that, in case, the plaintiff makes any representation for lease to plaintiff (respondent No.1) may consider the same on its own basis. No order as to costs. Pending applications, if any, shall also stands disposed of.