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Pola Ram vs State Of H.P. And Anr. on 21 March, 2006

Himachal Pradesh High Court
Pola Ram vs State Of H.P. And Anr. on 21 March, 2006
Equivalent citations: 2006 (2) ShimLC 65
Author: K Sood
Bench: K Sood


JUDGMENT

K.C. Sood, J.

1. Heard.

2. Admit on the following substantial question of law:

Whether the impugned judgment and decree of the learned Additional District Judge, Solan, Camp at Nalagarh, dated 6th October, 2005 is against the provisions of Section 163 of the H.P. Land Revenue Act?

3. Heard Mr. Gautam, learned Senior Counsel for the appellant and Mr. Chaudhary, learned Additional Advocate General, for the respondents.

4. It appears eviction proceedings against the appellant were initiated by the Assistant Collector 1st Grade, Nalagarh, District Solan, from the land in dispute, which measures 1-19 bighas. The Assistant Collector 1st Grade vide his impugned orders dated 31st March, 2002 directed eviction of the appellant from the land in question. The Assistant Collector 1st Grade decided this case as Civil Suit in terms of Sub-section (3) of Section 163 of the H.P. Land Revenue Act, hereinafter referred to as the “Act”, as the plaintiff had raised question of title and adverse possession over the land in dispute.

The Assistant Collector vide his impugned judgment held that the appellant was an encroacher and has not been able to prove his adverse possession over the suit land.

5. Dis-satisfied, the appellant laid an appeal before the learned District Judge, Solan, which came to be decided by the learned Additional District Judge, Solan, camp at Nalagarh.

6. Mr. Gautam, learned Senior Counsel for the appellant contends that the learned Appellate Court erred in law in holding that the order passed by the Assistant Collector could not be challenged before the learned District Judge by filing an appeal and the appeal was not maintainable. Section 163 of the Act reads :

163. Prevention of encroachment on lands.(I) Where Government land or land which has been reserved for the site of a village or for the common purposes of the co-sharers therein has been encroached upon by any co-sharer or other person for any purpose including construction of a building or other structure therein, then

(a) the Revenue Officer may of his own motion or on the application of any other co-sharer eject the encroaching person (hereinafter in this Section referred to as the encroacher) from such land and by order, proclaimed in the manner, mentioned in Section 23, prohibit repetition of the encroachment therein :

Provided that no encroacher shall be ejected under this clause unless he has been given a reasonable opportunity of showing cause against the ejectment.

(b) the Revenue Officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damage on account of such encroachment and may, by order, require the encroacher to pay the damages within such period and in such installments as may be specified in the order;

(c) if the encroacher has erected only building or other structure or has grown crops or planted trees on the encroached land it shall be competent for the Revenue Officer, while ordering his ejectment, to dismantle such building or other structure and confiscate any produce or other material on such land and put the same in public auction and deposit the sale proceeds thereof into the Government Treasury; and

(d) the Revenue Officer may impose upon the encroacher a fine up to (one thousand rupees per bigha or part thereof in the case of first encroachment) and, where the encroachments repeated, a fine up to (two thousand rupees per bigha or part thereof for each such subsequent encroachment).

(2) Any amount payable as damages under Clause (b) of Sub-section (1) or as fine under Clause (d) of that Sub-section may be recovered in the same manner or arrears of land revenue.

(3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this Section, the Revenue Officer, not below the rank of an Assistant Collector of the first Grade, shall proceed to determine the question, also if he were a Civil Court and shall exercise all such powers as are exercisable by a civil Court.

(4) For the determination of the question under Sub-section (3) the Revenue Officer shall follow the same procedure as is applicable to the trial of an original suit by a civil Court, and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908 to be .specified therein.

(5) An appeal from the decree of the Revenue Officer made under Sub-section (4) shall lie to the District Judge as if that decree were a decree of a subordinate Judge in an original suit.

(6) A further appeal from the appellate decree of a District Judge upon an appeal under Sub-section (5), shall lie to the High Court only if the High Court is satisfied that a substantial question of law is involved, and

(7) No suit or other legal proceeding shall lie against the Revenue Officer or any person acting under this Section in respect of anything in good faith done or purported to have been done under the provisions thereof or the rules made thereunder.

7. A bare perusal of Sub-section (4) shows that if an encroacher claims adverse possession in the Government land then such question is to be decided by the Revenue Officer, after following the same procedure as applicable to the trial of a suit by a Civil Court and he shall record the judgment and decree containing the particulars as required under the Code of Civil Procedure. Sub-section (5) provides for an appeal from the decree of the Revenue Officer made under Sub-section (4) to the District Judge. Second appeal is provided under Sub-section (6) to the High Court though limited to substantial question(s) of law. Sub-section (7) bars any suit or legal proceedings against the Revenue Officer or any person acting under this Section in respect of anything done in good faith under these provisions.

8. In the present case, as noticed above, the learned Additional District Judge in terms of the provisions of Sub-section (5) of Section 163 of the Act should have decided the appeal in accordance with law as if it was a decree of a subordinate judge in an original suit. Evidently, the jurisdiction to hear appeal against the orders of eviction in such cases, would only lie with the District Judge and not with any revenue authority. Apparently, the learned first Appellate Court erred in law in holding that he had no jurisdiction to decide the appeal.

9. For the reasons recorded above, the appeal is allowed. The judgment and decree of the learned first Appellate Court is set aside. The case is remanded back to the learned Additional District Judge, Solan, with the directions to rehear the parties and decide the appeal expeditiously preferably within three months from today. The parties are directed to appear before the learned first Appellate Court on 30th March, 2006. The records of the case be sent back forthwith.

CMP No. 53 of 2006

10. Dismissed in view of the disposal of the main appeal. Interim order dated 23rd January, 2006 is vacated. The application is disposed of.

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