RISHAVH KALIA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) By way of instant petition filed under Article 226 of the Contitution of India, the petitioner has prayed for following main reliefs :

(2.) Briefly stated the facts as emerge from the record are that a complaint was filed by respondent No. 4 before respondent No. 3 that the petitioner is in unauthorized occupation of forest land measuring 0-1-10 Bigha in Maharaja-III District Kullu and has constructed a cemented shop thereupon. It is further alleged in the complaint that a demarcation was conducted on 22.5.2006, in which petitioner was found to be in unauthorized occupation of the land as stated above. Notice dated 14.3.207 under Section 4(1) of HP Public Premises and Land (Eviction and Rent Recovery) Act, 1971 was issued to the petitioner. Petitioner filed reply to the same, denying the factum of encroachment. Petitioner stated that he is owner of land in Khasra No. 494 measuring 0-10-04 Bigha. He further averred that the house was constructed upon his own land and alleged demarcation was not carried out as per provisions of para 10.10 of Land Records Manual as no pucca points were affixed before conducting the demarcation. Parties led evidence and statements of witnesses were also recorded. Petitioner also filed an affidavit stating that he was owner of Khasra N. 494 and construction was raised on this Khasra number. Petitioner further stated that, at the most, it was a boundary dispute and controversy was to be adjudicated by a Civil Court, however, the fact remains that respondent No.3 held petitioner to be encroacher upon government/forest land in Maharaja-III to the extent of 0-1-10 Bigha and ordered his eviction from the land in question. Petitioner filed an appeal before respondent No.2. Aforesaid appeal having been filed by the petitioner was dismissed by respondent No.2 on 28.11.2014. In the aforesaid background, the petitioner has approached this Court, with aforementioned relief.

(3.) Mr. Sanjeev Bhushan, learned Senior Advocate duly assisted by Mr. Maan Singh, Advocate, argued that the authorities below failed to appreciate the evidence led by the parties and also failed to apply law applicable to the facts of the case and as such impugned order of eviction deserves to be quashed and set aside. Mr. Bhushan, learned Senior Advocate, further argued that as per Para 10.10 of Land Records Manual, where boundaries of government land and private land are to be demarcated, an officer, not below the rank of Assistant Collector 1st Grade, is authorized to carry out demarcation, but in this case, Kanungo has carried out demarcation on 22.5.2006, which led to issuance of notice without adhering to the procedure laid down in the Land Records Manual as well as instructions issued by Financial Commissioner (Appeals). Mr. Bhushan further stated that petitioner has not encroached over government land, rather he has constructed shop over his own land. Mr. Bhushan referred to photographs of the spot (Annexure P-8) to demonstrate that construction is within the land owned and possessed by the petitioner. Mr. Bhushan also contended that Khimi Ram, Kanungo, who conducted alleged demarcation has feigned ignorance about area of Khasra No. 494 and also no pucca points were affixed during demarcation. Mr. Bhushan further states that Kanungo admitted that there was private land adjacent to government land and as per standing instructions of Financial Commissioner, he was not competent to carry out demarcation. While inviting attention to the statement of PW-2 Dharmender Kumar, Patwari, Mr. Bhushan stated that aforesaid witness stated in his cross-examination that 'Latha' and 'Musabi' of the area was in dilapidated condition and as such correct demarcation of the land could not have been given and further without carrying out demarcation of land owned and possessed by petitioner, no Tatima could have been prepared by Patwari without having attested copies of Musabi of Khasra No. 494. Mr. Bhushan further contended that petitioner applied for attested copies of Musabi, which was not provided to petitioner on the ground that same was torn and not available in the record, as such, alleged demarcation carried out in the absence of necessary documents, is under clout. With these arguments, Mr. Bhushan, prayed that the petition be allowed and orders passed by Collector, Forest Division Kullu, dated 10.12.2013, order eviction of the petitioner from alleged encroached land, and that of Divisional Commissioner, Mandi Division in Case No. 362/2013 dated 28.11.2014, may be quashed and set aside.