MANGAL CHAND Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The Honble High Court of Himachal Pradesh vide their judgment dated 5 -11 -1986 delivered in Civil Writ Petition No. 84 of 1981, have remanded the case to this Court.

(2.) In order to appreciate the case properly, i t is necessary to trace the history of the case. The Revenue Assistant, Rampur, vide his order dated 17 -5 -972 made a grant of an area of 9 -8 bighas of land comprised in Khasra No 1/1, situated in village Kungal Munder, Tehsil Rampur, in favour of one Shri Naku Ram as nautor land for horticulture purposes. Shri Bhag Chand, father of the present petitioner, Shri Mangal Chand, filed an appeal against the aforesaid order of the Revenue Assistant, Rampur before the Deputy Commissioner, who dismissed the same vide his order dated 2i -3 -1974 Shri Bhag Chand then preferred a further appeal against the order dated 21 -3 -1974 of the Deputy Commissioner, which was heard and dismissed by the Divisional Commissioner on 1M -1975. A revision filed against the order of the Divisional Commissioner was also dismissed on 11 -3 -j97? by the Financial Commissioner. Shri Bhag Chand filed yet another petition for review of the order of the Financial Commissioner, which was also dismissed on 1 -12 -1977. Thus the original order of grant of nautor land in favour of Shri Naku Ram passed by the Revenue Assistant on 17 -5 -1972 was maintained throughout. Patta was also issued on 27 -4 -1973 but the actual possession of nautor land was referred on account of filing of various appeals/revisions etc by Shri Bhag Chand. Ultimately the physical possession of nautor land was delivered to the successors -in -interest of Shri Naku Ram on 18 -2 -1979. At that time the snccessors -in -interest of Shri Naku Ram were not given actual possession of a portion of that land measuring 20 x 20f, which was then in unauthorised possession of Shri Mangal Cband, petitioner, who had raised a small structure measuring approximately 15 x 18 thereon. Since Shri Mangal Chand had unlawfully encroached upon the Government land, proceedings under section 163 of the Himachal Pradesh Land Revenue Act were initiated against him by the Assistant Collector, II Grade, Rampur, who vide his order dated 12 -2 -1974 ordered the ejectment of Shri Mangal Chand from the Government land measuring 3 -10 bighas, comprised in Khasra No. 1/1, situated in village Kungal Mundar. The Assistant Collector, II Grade also imposed a fine of Rs. 30 on Shri Mangal Chand. An appeal filed by Shri Mangal Chand was dismissed by the Deputy Commissioner on 1 -7 -1974. The revision filed against the order dated 1 -7 -1974 of the Deputy Commissioner, was also dismissed by the Divisional Commissioner vide his order dated 30 -12 -1978. Feeling dis -satisfied with the orders of the Revenue Officers below, Shri Mangal Chand preferred a revision petition before the Financial Commissioner, which was listed as Revenue Revision No. 1/79. On their application, S/Shri Shawnoo Ram, Jabi Ram, Thami Ram, sons, Smt Dehchu Devi, Smt. Fedi Devi, daughters and Smt. Tupli Devi, widow of Shri Naku Ram were impleaded as parties in the revision filed before the Financial Commissioner. The Financial Commissioner ultimately disposed of the revision petition filed by Shri Mangal Chand vide his order dated 20 -1 -1981. The operative part of this order, which reads as under: - "The total area of Khasra No, 1/1 is 13 -7 bighas, out of which 9 -8 bighas has been sanctioned to S/Shri Shawnoo etc on 17 -5 -1972, leaving 3 -19 bighas A part of the land granted and handed over to S/Shri Shawnoo etc. is reported to be under the occupation of the petitioner. The petitioner is sanctioned 2 -10 bighas from Khasra No 1/1, including the land underneath his house. It should be ensured that while preparing tatima for this grant, however, there should be minimum dislocation in the respective possessions of the parties. Nazrana should be assessed and charged from the petitioner accordingly. Orders to be communicated through the Deputy Commissioner, Shimla."

(3.) Shri Shawnoo Ram and others, who are L Rs. of Shri Naku Ram deceased, filed Civil Writ Petition No 84/1981 before the Honble High Court of Himachal Pradesh under Article 226 of the Constitution of India praying for issue of appropriate writ, direction or order quashing the order of the Financial Commissioner. In this Civil Writ Financial Commissioner and Mangal Chand were impleaded as respondents beside State of Himachal Pradesh The Honble High Court of Himachal Pradesh observed that the order of Financial Commissioner was not only based on misconception of the actual position existing on the spot but was also totally vague inasmuch as it did not specify the identity of the area granted as nautor in favour of Shri Mangal Chand. Accordingly, the Honble High Court quashed the order and directed that revision No. 1/79 filed by Shri Mangal Chand be decided afresh after affording the parties an opportunity of being heard and after ascertaining the correct position obtaining on the spot. It is in accordance with the directions given by the Honble High Court of Himachal Pradesh that the revision No 1/79 was heard again after giving an opportunity of being heard to the parties affected thereby. 4 During the pendency of the revision petition, one of the respondents, Shri Thami Ram expired and his L Rs. were brought on record. It was on 31 -5 -1988 that our learned predecessor, after hearing the parties, ordered the Sub -Divisional Officer (Civil), Rampur to verify the spot position in the light of the Honble High Courts order and prepare a detailed report in this case. The Sub -Divisional Officer (Civil), Rampur was also given directions to hear the concerned parties at the time of spot inspection and take the assistance of the Revenue Officers The Sub -Divisional Officer (Civil), Rampur has sent his report vide his letter No 2142 dated 24 -12 -1988. 5 We have carefully gone through the record of the case including the report of the Sub -Divisional Officer (Civil), Rampur and have also given due consideration to the arguments adduced by Shri M. L. Chauhan, Advocate, learned Counsel for the petitioner and Shri R L. Sharma, District Attorney (Revenue), who appeared on behalf of the State and also Shri Harsh Khanna, Advocate, learned Counsel for the respondents. The report sent by the Sub -Divisional Officer (Civil), Rampur, is a pragmatic report We have decided to rely upon the same It has been observed by the Sub -Divisional Officer (Civil), in his report that Shri Naku Ram bad applied for 13 -7 bighas of land comprised in Khasra No. 1/1 Later on while sanctioning the grant, area was reduced to 9 -8 bighas. However, it appears that neither the original tatima nor the modified tatima was prepared on the spot. Shri Mangal Chand encroached upon only 0 -5 bighas of land, which includes his house and path leading to it has been mentioned that Shri Shawanu Ram and others are in fact in possession of 7 10 bighas of land only The remaining 1 -18 bighas of the area is under occupation of Shri Mangal Chand, (including 0 -5 bighas, which is under his house and path leading to it), PWD road (10 bigha) and Banjar (0 -13 bighas). The Sub -Divisional Officer (Civil). Rampur has clearly mentioned that the remaining area measuring 3 -19 bighas as mentioned in the order dated 20 -1 -1981 of the Financial Commissioner, is not available for allotment as there is heavy growth of trees. This area can neither be given to Shri Mangal Chand nor to Shri Shawanu Ram and others Shri Shawanu Ram was also found to have encroached upon the Government land measuring 1 -2 bighas, which is adjacent to his land and on which he has already raised an orchard. The Sub -Divisional Officer (Civil), Rampur has recommended that Shri Mangal Chand be allotted 0 -5 bighas of land, which is denoted by Khasra No. 5l6/i/2 and under his house and approach road and the grant of 2 -10 bighas of land made vide order dated 20 -1 -198 i of the Financial Commissioner, be cancelled. The Sub -Divisional Officer (Civil), Rampur has also recommended that the grant of nautor land of Shri Shawanu and others, successors of the original grantee Shri Naku Ram, be modified to the extent that they may be granted 8 -12 bighas of land, including the 1 -2 bighas of land encroached upon and the balance grant of 0 16 biswas be canceled. The Sub -Divisional Officer (Civil) has enclosed tatima of the land in respect of which, he has made the recommendations. 6 Since the report of the Sub -Divisional Officer (Civil), Rampur has been prepared after spot inspection and after hearing the parties, we are inclined to accept the same and pass the order accordingly. The revision petition filed by Shri Mangal Chand is accepted partly and the land measuring 0 -5 biswas, which is denoted by Khasra No. 516/1/2 and under his house and approach road, situated in village Kungal Munder, is sanctioned in favour of Shri Mangal Chand. The grant of nautor land made in favour of Shri Shawanu Ram and others, successors of the original grantee, late Shri Naku Ram is modified to the extent that Shri Shawanu Ram and others, successors of the original grantee, Shri Naku Ram, are granted 8 -12 bighas of land, including 1 -2 bighas of land uncroached upon and the balance grant of 0 -16 bighas is cancelled. Necessary entries be made in the revenue record and the revised Pattas will be issued in favour of Shri Mangal Chand and Shawanu Ram and others. Order be communicated. Petition partly allowed.