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2018 DIGILAW 273 (HP)

Court on its own motion v. State of H. P.

2018-03-08

SANDEEP SHARMA, SANJAY KAROL

body2018
JUDGMENT : Sandeep Sharma, J. Instant petition came to be registered as Public Interest Litigation on the basis of communication dated 8.4.2017 sent by local residents of village Kangoo, Tehsil Nadaun, District Hamirpur, H.P., who alleged that person namely; Kamal Kishor son of Shri Madan Singh, resident of village Malag, Post Office Kangoo, Tehsil Nadaun, District Hamirpur, after having encroached upon Government land, has illegally constructed shops at Kangoo Bus Stop. 2. Letter petitioner further alleged that apart from constructing shops on Government land, person, named hereinabove, has also encroached upon other Government land comprised in Khata No.288, Khatauni Nos.413, 416, 418, 422, Khasra Nos.666, 667, 458, 656, 657, 658, 660, 661, 665, 668, Kitta 10, area measuring 4-25-25 hectare, situate at Mahal Malag, Mauza Badohag, Tehsil Nadaun, District Hamirpur, H.P. and at present he is laying foundation for house. 3. Letter petitioner alleged that since Kamal Kishore is an influential person of the area, no action is being taken against him by the administration. Earlier also a complaint dated 27.2.2017 was made to the Deputy Commissioner, Hamirpur, H.P., who had recommended Sub Divisional Magistrate, Nadaun to take action, but despite that Kamal Kishore, respondent No.5, failed to stop the illegal construction, rather he managed to stall all actions proposed to be initiated against him by the Government machinery. Petitioner also placed on record news item published in daily newspapers “Dainik Jagran” and “Aap Ka Faisla” dated 30.3.2017. 4. Petitioner, by way of letter, which has been taken note above, prayed that necessary directions be issued to the concerned Department for resuming land, allegedly encroached by respondent No.5, so that no loss is caused to the public exchequer. 5. Taking note of serious allegation made in the letter petition, this Court directed learned Deputy Advocate General to have instructions in the matter and also called upon respondent No.5 to file his response. 6. During pendency of present proceedings, this Court also summoned letter petitioners; namely; S/Shri Ram Singh son of Shri Birbal, Desh Raj son of Shri Bardu, Rajesh Babu Gautam son of Shri Dharam Singh and Jeet Singh son of Shri Sant Ram, who reiterated their allegations as contained in the letter petition through amicus curiae Ms.Veena Sharma, Advocate. 7. 6. During pendency of present proceedings, this Court also summoned letter petitioners; namely; S/Shri Ram Singh son of Shri Birbal, Desh Raj son of Shri Bardu, Rajesh Babu Gautam son of Shri Dharam Singh and Jeet Singh son of Shri Sant Ram, who reiterated their allegations as contained in the letter petition through amicus curiae Ms.Veena Sharma, Advocate. 7. It may be noticed that during the pendency of present proceedings, four affidavits dated 30.6.2017, 14.9.2017, 21.11.2017 and 6.3.2018 came to be filed on behalf of respondents No.1 to 4 through Deputy Commissioner, Hamirpur, District Hamirpur, H.P. All the allegations of encroachment allegedly made against respondent No.5, have been virtually accepted by the Deputy Commissioner, Hamirpur in his affidavit detailed hereinabove. In all the affidavits, it has been categorically stated that respondent No.5 is an encroacher over the Government land and in this regard proceedings under Section 163 of the H.P. Land Revenue Act, 1954 (hereinafter referred to as the ‘Act’) stand already initiated. 8. In the latest affidavit dated 6.3.2018, Deputy Commissioner has categorically stated that Government of Himachal Pradesh is owner of the land in question and the question of title raised by respondent No.3 qua the same shall be decided by concerned Revenue Court in accordance with the provisions of law. 9. Respondent No.5 i.e. Kamal Kishore also filed affidavit in terms of directions issued by this Court, wherein he refuted all allegations of encroachment allegedly made by him on the Government land and contended that his grandfather; namely; Shri Ran Singh son of Shri Hira was recorded as “Gair Maurusi Tenant” in cultivating possession in respect of Khasra Nos.656, 657, 658, 660, 661, 668 from the year 1950-51 with Raja Rajinder Chand, Nadaun as the owner thereof. Respondent No.5 also placed on record copy of Jamabandi for the year 1950-51 in support of his claim. Aforesaid entries as contained in Jamabandi for the year 1950-51 continued to remain undisturbed and unchanged till the year 1996-97, when State Government ordered vestment of land in question in favour of State. Respondent No.5 also placed on record copy of Jamabandi for the year 1950-51 in support of his claim. Aforesaid entries as contained in Jamabandi for the year 1950-51 continued to remain undisturbed and unchanged till the year 1996-97, when State Government ordered vestment of land in question in favour of State. Respondent No.5 has admitted that for the first time the possession in the name of S/Shri Pritam Singh, Ashok Kumar, Kamal Kishore, respondent No.5 and their younger brother Shri Rajinder Singh all sons of late Shri Madan Singh son of late Shri Ran Singh, was illegally and arbitrarily changed from that of the long standing “Gair Maurusi” in column No.4 to “Kabazan” qua which appeal, having been filed by them, is already pending before learned ASO, Dharamshala (Annexure R-5/C). Respondent No.5 also stated in his affidavit that present Public Interest Litigation has been initiated at the instance of Ram Singh, Desh Raj, Rajesh Babu Gautam and Jeet Singh, who have approached this Court by suppressing material facts that they had filed a Civil Suit No.73/2017, which is still pending adjudication in the Court of Civil Judge (Jr.Division), Nadaun, District Hmairpur, H.P. and since no interim relief was granted by learned Civil Judge, they approached this Court by way of present letter petition levelling therein false allegations. 10. Taking note of averments contained in the affidavit of respondent No.5, this Court directed the Deputy Commissioner, Hamirpur as well as private respondent to file their response to the same. 11. Deputy Commissioner, Hamirpur again reiterated its stand taken in his first affidavit and alleged that revenue entry from non-occupancy tenants to ‘Kabzan’ of land in question was incorporated in compliance to order passed by AC Ist Grade, Settlement Nadaun in case No.471/96, dated 1.5.1997 and rapat to this effect was recorded vide Rapat No.253 dated 29.5.1997. Factum with regard pendency of appeal already came to be admitted as a matter of record. Deputy Commissioner has further stated that pursuant to aforesaid report submitted by AC Ist Grade, mutation came to be effected and attested in favour of respondents- State, but no appeal was ever laid against the same by respondent No.5 and as such the same has attained finality. 12. Deputy Commissioner has further stated that pursuant to aforesaid report submitted by AC Ist Grade, mutation came to be effected and attested in favour of respondents- State, but no appeal was ever laid against the same by respondent No.5 and as such the same has attained finality. 12. On the other hand, letter petitioners, by way of supplementary affidavit filed in terms of order passed by this Court, again reiterated the allegations with regard to encroachment made by respondent No.5, but have also admitted factum with regard to their having filed Civil Suit in the Court of learned Civil Judge (Jr.Division). 13. Letter petitioners have admitted that taking note of the fact that since no interim injunction was granted and respondent No.5 was helbent in carrying out construction over Government land, they approached this Court and there was no malafide intention behind this action of their. 14. After having gone through the material available on record, especially affidavit filed by Deputy Commissioner, there appears to be some truth in the allegation levelled by the letter petitioners, but this Court, taking note of allegations and counter allegations levelled by the letter petitioners and respondent No.5, sees no occasion to keep the present petition alive, especially when there are disputed questions of facts and law. Moreover, as is quiet apparent from the affidavit filed by Deputy Commissioner, proceedings qua alleged encroachment made by respondent No.5 stand already initiated against him and the same are pending before learned AC Ist Grade, Nadaun and as such, this Court is of the view that pendency of present petition before this Court may further delay the proceedings pending before the Revenue Authorities below and as such deems it proper to dispose of present petitioner with the following directions:- (i) Proceedings initiated under Section 163 of the Act against respondent No.5, pending before Revenue Authority, shall be decided expeditiously, preferably within a period of six months from the date of passing of this Order. Needless to say, Revenue Authority, while deciding proceedings as referred above, shall afford an opportunity of being heard to all the parties so that principle of natural justice is met. Needless to say, Revenue Authority, while deciding proceedings as referred above, shall afford an opportunity of being heard to all the parties so that principle of natural justice is met. (ii) As is quiet evident from the material available on record that respondent No.5, being aggrieved with the change of entry in revenue record, had approached ASO, Dharamshala (Annexure R-5/C) much prior to the initiation of eviction proceedings against him under Section 163 of the Act, this Court directs that the Revenue Authority concerned, before taking any action pursuant to proceedings initiated under Section 163 of the Act, shall decide appeal, if any, pending before ASO, Dharamshala because that may have bearing on the proceedings initiated under Section 163 of the Act. In case proceedings are pending before the ASO, Dharamshala, as has been claimed by respondent No.5, same shall be decided by the authority concerned on the top most priority, most preferably, within a period of two months from today so that further action in the matter is taken with the utmost promptitude. 15. With the aforesaid observations/directions, nothing survives in the present petition and the same is accordingly closed. Affidavit of compliance shall be filed by the Deputy Commissioner after expiry of period of six months as granted hereinabove. At this stage, this Court may take note of the fact that though allegation contained in the letter petition sent to this Court prima facie appears to be correct. But it is also fact, rather is clearly evident from the record that the letter petitioners suppressed material factum with regard to their having filed Civil Suit before the learned Civil Judge qua same subject matter and as such, we find considerable force in the arguments of Shri R.L. Sood, learned Senior Counsel representing respondent No.5, that letter petitioners, one of whom is a retired army official, have not approached this Court with clean hands and they, with a view to get the construction activity being carried out by respondent No.5 on the land allegedly encroached by him stopped, concealed material factum with regard to dismissal of their interim application in the Civil Suit having been filed by them before the Civil Court. Though, this Court, after having interacted with the letter petitioners is persuaded to agree with the contention of learned amicus curiae Ms.Veena Sharma that letter petitioners had no malafide intention but they all being educated and aware of legal consequences ought to have more careful and cautious while sending communication to this Court. 16. Taking note of aforesaid irresponsible act of letter petitioners, this Court would have proceeded to award exemplary costs, but taking note of the nature of issue, which is definitely of great public importance, raised by letter petitioners, this Court warn them to be more cautious and responsible in future while dealing with the Court matters. Since we are of prima facie view that attempt has been made by letter petitioners to hoodwink this Court by suppressing material facts, this Court deems it proper to impose token costs of Rs.1000/- which shall be deposited with the H.P. State Legal Services Authority. 17. We also wish to place on record appreciation qua the efforts put in by Ms.Veena Sharma, Advocate, Amicus Curiae, who, on the instructions of this Court, regularly contacted letter petitioners and obtained necessary feed back. 18. Copy of instant order shall be made available to Deputy Commissioner, Hamirpur and all other concerned parties for necessary compliance including Amicus Curiae, who in turn shall inform letter petitioners with regard to passing of the aforesaid judgment.