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2016 Supreme(HP) 1579
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir, Tarlok Singh Chauhan, JJ.
Mehar Chand - Petitioner
Versus
State of Himachal Pradesh and another - Respondents
CWP No. 4588 of 2015
Decided On : 06-09-2016
For the Petitioner: Ms. Vandana Mishra Panta.
For the Respondents: Mr. Shrawan Dogra, Mr. Anup Rattan, Mr. Romesh Verma, Mr. Varun Chandel, Mr. Kush Sharma.
The exercise of revisional power must be within a reasonable period, and the duty to protect public property and the environment is paramount.
Headnote:
Adverse Possession - HP Land Revenue Act, 1954 - Section 163, Section 17 - 163, 17
Fact of the Case:
The petitioner was ordered to be evicted from the land he was occupying, and he challenged the orders through various authorities, claiming adverse possession of the land. The court considered the delay in filing the Revision Petition and the claim of adverse possession.
Finding of the Court:
The court found that the petitioner failed to prove adverse possession and that the delay in filing the Revision Petition was not adequately addressed. The court also emphasized the duty to protect public property and the environment.
Issues: Delay in filing Revision Petition, Claim of Adverse Possession, Protection of Public Property and Environment
Ratio Decidendi: The court held that even when no specific period of limitation is prescribed, the exercise of revisional power must be within a reasonable period. It emphasized the duty to protect public property and the environment, and the need to discourage encroachers.
Final Decision: The petition was dismissed, and the eviction was ordered to be carried out at the cost of the petitioner. The decision did not preclude the respondents from claiming further relief against the petitioner.
Tarlok Singh Chauhan, J.
Petitioner has lost before all the four authorities below and having been held to be an encroacher has been ordered to be evicted from the land measuring 6-19-5 bighas, comprised in Khasra No. 337/16/1, 331/323/1 and 171, Kita 2, situated in Mauza Chamog, Tehsil Karsog, District Mandi H.P. (herein after referred to as the land in dispute).
2. It appears that in the year 1990 on the report of Patwari Halka Dabrot, Tehsil Karsog, District Mandi, proceedings under Section 163 of the HP Land Revenue Act, 1954 (for short the ‘Act’) were initiated against the petitioner before the Assistant Collector 1st Grade, Karsog on 14.12.1990 on the ground that he was in unauthorized occupation of the land in dispute.
3. On 5.4.1991 the Assistant Collector 1st Grade passed ex parte order of eviction against the petitioner, which consequent upon appeal being filed by the petitioner was set aside on 8.10.1991 by the Collector Sub Division, Karsog and the matter was remanded back to the Assistant Collector 1st Grade for fresh decision.
4. The Assistant Collector 1st Grade again vide order dated 30.9.1997 ordered the eviction of the petitioner and at the same time imposed a fine of Rs.6,950/-. This order was assailed by the petitioner by way of appeal before the Collector Sub Division, Karsog, who vide his order dated 21.9.1999 dismissed the appeal. These orders thereafter were challenged before the Commissioner, Mandi Division at Mandi by filing Revision Petition No. 40 of 2000. However, the same was also dismissed vide order dated 27.10.2001.
5. Undeterred, the petitioner then approached the Financial Commissioner (Appeals) by filing Revision Petition No. 35 of 2010. However, the said Revision Petition too ordered to be dismissed vide order dated 18.8.2015, constraining the petitioner to file the instant writ petition.
6. It is averred that the authorities below have failed to take into consideration the clear and unambiguous testimony of the petitioner corroborated by two other witnesses of the area, who have clearly deposed that there are about 250-300 fruit bearing apple and almond trees standing over the disputed land, which has been in possession of the petitioner and earlier to that in his father’s possession for the last 35 years and thus it was proved on record that the petitioner was in open, hostile and continuous possession of the disputed land and therefore, had become owner thereof.
7. The respondents have filed reply, wherein it is averred that as the petitioner had miserably failed to prove his title, claim and right over the land in dispute by producing tangible oral or documentary evidence, therefore, he could not now find fault with the orders, which have been passed strictly in conformity and compliance of law. It is specifically averred that the claim of the petitioner with regard to adverse possession over the land in dispute is totally wrong, baseless and misleading because had the petitioner been in adverse possession of the land in dispute for more than 35 years, then the same would have been recorded/reflected in the record of rights prepared during the settlement carried out in early seventies in Tehsil Karsog.
We have heard learned counsel for the parties and have also gone through the records of the case.
8. At the outset, it may be noticed that the Commissioner Mandi had dismissed the Revision Petition vide order dated 27.10.2001, yet the petitioner did not chose to assail this order for nearly 9 years and the same was ultimately assailed on 9.3.2010 in Revision Petition by invoking the provisions of Section 17 of the H.P. Land Revenue Act, 1954, which reads thus:-
“17. Power to call for, examine and revise proceedings of Revenue Officer.—(1) The Financial Commissioner may at any time call for the record of any case pending before (or disposed of by) any Revenue Officer subordinate to him.
(2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by any
