Himachal Pradesh High Court
Sushila Sharma vs State Of Hp And Others on 22 May, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4548 of 2010.
Reserved on 1.5.2017.
.
Decided on: 22.5.2017.
Sushila Sharma ....Petitioner.
Versus
State of HP and others. ... Respondents.
................................................................................................
Coram
Whether approved for reporting?1 to
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Yes.
For the petitioner. : Mr. Sanjeev Bhushan, Sr. Advocate with
Ms. Abhilasha Kaundal, Advocate.
For respondents : Mr. Vikram Thakur, Dy. AG for respondent
No.1 to 3.
: None for respondent No. 5.
Ajay Mohan Goel, J.
By way of present writ petition, the petitioner has prayed for the following reliefs:-
a) That writ in the nature of mandamus may very kindly be issued by directing respondent No.2 to implement the judgment passed by this Hon'ble Court in the year 1990, as the Field Agencies have filed reports in the shape of Annexure P-8 in favour of the petitioner, which clearly shows that petitioner is in possession of Khasra No. 257, further writ in the nature of mandamus may very kindly be issued, directing the 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 25/05/2017 23:59:48 :::HCHP 2
respondents to regularize the possession of the present petitioner over Khasra No. 257 and further to issue the requisite Patta in favour of the petitioner. \
b) That the record of Civil Suit No. 1/83-160/84, passed by the ld.
.
Senior Sub Judge, Kangra, C.W.P. No. 536/1989, C.W.P. No. 1996/2008 may very kindly be summoned for disposing the controversy for once and all.
2. The case of the petitioner in brief is that she is a poor, landless, divorcee, houseless lady, of 60 years of age and there is no one to support her. She claims to have two daughters who are already married. It is further her case that her father migrated from Azad Kashmir in the year 1947 and got rehabilitated at Dharamshala. Since her birth she was residing with her father. As her late father had not received any compensation from the 'Compensation Pool' created for the migrated people, therefore, land was given to her father by Gram Panchayat, Dari which was in the name of Gram Panchayat as per revenue records. Her father was a labourer, landless and houseless.
He died in the year 1982. It is further her case that in the year 1983 a complaint was filed before Assistant Collector, 1st Grade, Kangra to the effect that she had encroached upon the government land. She was ordered to be ejected vide order dated 2.2.1983, but the order so passed by Assistant Collector, 1st Grade, Kangra had become inoperative in the sense that petitioner was not residing over the khasra number from which she was ordered to be ejected. Further as ::: Downloaded on - 25/05/2017 23:59:48 :::HCHP 3 per the petitioner one Shubhkaran her neigibour with whom she was having boundary dispute filed a civil suit before the Court of learned .
Senior Sub Judge, Kangra District at Dharamshala that petitioner be restrained from raising any structure over khasra No. 253 in which suit she had filed a counter claim. As per the petitioner, she had not constructed any house over khasra No. 253 but had constructed her house over khasra No. 257 and this fact stands adjudicated in the said suit by learned Senior Sub Judge, Kangra vide judgment, Annexure P-
4, which has attained finality. It is further the case of the petitioner that despite many policies/schemes/notifications issued by the government to regularize possession of persons over government land, her possession over khasra No. 257 situated in Mohal/village Jhikhli Bharol, Mauza Ghaniara, Tehsil and District Kangra has not been regularized despite her having applied to the State for this purpose. It is further her case that she also filed CWP No. 536 of 1989 in this regard which was disposed of by this Court vide order dated 20.7.1990 in the following terms:-
"Considering all these aspects of the case, the Second respondent, Deputy Commissioner, is directed to hold an enquiry and if it is found that the petitioner is in occupation of khasra No. 257 and her occupation entitles her for assignment, as per the Government's orders referred to above, regularize her occupation and issue the requisite 'patta' in that behalf."::: Downloaded on - 25/05/2017 23:59:48 :::HCHP 4
3. It is further her case that she has been running from pillar to post to get her possession regularized and despite there being a .
judgment in her favour passed by this Court, respondents did not bother to regularize her possession over khasra No. 257. Further as per the petitioner one Satish Sharma with whom she was having a boundary dispute also filed a civil suit against her which was still pending. Said Sataish Sharma had purchased property from Shubhkaran. Satish Sharma by concealing all material facts filed CWP No. 1996 of 2008 before this Court which was decided by this Court vide judgment dated 23.3.2010 which was based on a wrong affidavit filed by respondent-State. According to the petitioner had wrong affidavit not been filed by the respondent-State, then this Court would not have had passed order dated 23.3.2010 which was passed by it in CWP No. 1996 of 2008. It is in this background that petitioner has filed this writ petition praying for the reliefs already enumerated hereinabove.
4. Respondents No. 1 to 3 as well as respondent No.4 have filed their replies to the writ petition. The stand of the respondent-
State is that petitioner has constructed house over khasra No. 253 which is government land. As per said respondents, the house constructed by petitioner is not over kahsra No. 257 but over khasra ::: Downloaded on - 25/05/2017 23:59:48 :::HCHP 5 No. 253 from which she has been ordered to be evicted by Assistant Collector 1st Grade. Respondent-State has also filed a detail report .
prepared by Tehsildar, Dharamshala which demonstrates that petitioner in fact has encroached upon the government land comprised in khasra No. 253.
5. In his reply filed to the petition, the stand taken by respondent No.4 is that petitioner has encroached upon government land and eviction orders were passed against the petitioner as far back as in the year 1983 and filing of the present petition is nothing but a course adopted to throttle the process of law. It has further been stated in his reply by respondent No.4 that though the petitioner has been propagating herself to be helpless lady but she is not. At the time she encroached upon the government land, she was serving in Public Works Department. It is further mentioned in the reply that the petitioner is not entitled for allotment of any government land and she is liable to be evicted from khasra No. 253. It is also the case of respondent No.4 that petitioner cannot be allowed to claim the land in issue on the basis of resolution passed by Gram Panchayat, as Gram Panchayat has no authority to recommend allotment of government land. It is further the case of said respondent that the case of the petitioner is liable to be rejected on this ground alone that whereas she ::: Downloaded on - 25/05/2017 23:59:48 :::HCHP 6 is claiming regularization of her possession over khasra No. 257, but the fact of the matter is that she has encroached khasra No. 253.
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6. Petitioner has filed rejoinder to the replies so filed by the respondents and has reiterated her stand as has been taken in the writ petition.
7. I have heard learned counsel for the parties and have also gone through the records of the case as well as the respective pleadings.
8. It is a matter of record that the petitioner has encroached upon government land comprised over khasra No. 253 situated in Mohal/village Jhikhli Bharol, Mauza Ghaniara, Tehsil and District Kangra and she has been ordered to be evicted from the said land by the competent authority in proceedings initiated against her under Section 163 of the H.P. Land Revenue Act as far back as in the year 1983. It has also not been disputed in the Court during the course of arguments that the order of eviction so passed by the competent authority has attained finality, as the same has not been challenged by the petitioner. Now the prayer which has been made in this writ petition is that a writ of mandamus be issued directing the respondents to implement the judgment passed in the year 1990. In my considered view this prayer prima facie is totally misconceived. In case petitioner ::: Downloaded on - 25/05/2017 23:59:48 :::HCHP 7 feels that there is a judgment existing in her favour passed by this Court in the year 1990 and the same is not being obeyed by the .
respondents then the proper course for the petitioner to have had the said judgment executed in accordance with law. Be that as it may it is not for this Court to suggest as to how a judgment passed by this Court has to be got implemented but least that has to be said is this that a writ of mandamus cannot be prayed for having a judgment passed in an earlier writ petition implemented.
9. Besides this, a perusal of the judgment passed by this Court in CWP No. 536 of 1989 dated 20.7.1990 demonstrates that directions which were passed by this Court were to the effect that Deputy Commissioner was directed to hold an enquiry and if it is found that petitioner is in occupation over khasra No. 257 then to hold an enquiry as to whether her occupation entitles her for assignment as per government orders and regularize her occupation and issue her requisite "Patta" in that regard. During the course of arguments learned counsel for the petitioner could not apprise this court as to what was the outcome of the enquiry report as was directed by this Court. The only conclusion which could be drawn from the evasive stand of the petitioner is that this enquiry probably did not go in favour of the petitioner. The directions which were passed by this ::: Downloaded on - 25/05/2017 23:59:48 :::HCHP 8 Court in the above mentioned writ petition pertained to khasra No. 257 and it has come on record that petitioner is not in possession of .
khasra No. 257 but she is in possession of land comprised in khasra No. 253 which has been illegally encroached upon by her, as the said land is a government land.
10. Another important aspect of the matter is that the petitioner has not approached this Court with clean hands and she has tried to portray a false picture that she was a helpless destitute lady, was having no source of income etc. and was discriminated by the State. A perusal of the affidavit filed by the petitioner in support of the petition as well as rejoinder demonstrates that she has mentioned her occupation therein as housewife whereas during the course of arguments it was brought to the notice of this Court by the respondents that the petitioner superannuated from government service as Superintendent Grade-II. It was also submitted by respondents that in fact she had encroached upon the government land while she was in service.
11. Another relevant factor which has been brought to the notice of the Court by the respondent is that a perusal of ejectment order dated 2.2.1983 passed by Assistant Collector 1st Grande-cum-
Tehsildar, Kangra at Dharamshala demonstrates that her ::: Downloaded on - 25/05/2017 23:59:48 :::HCHP 9 encroachment at that relevant time over government land was to the extent of 0-01-17 hectares in Mohal Jhikli Barol in khasra No. 253/1 .
whereas with the passage of time this encroachment has increased to 00-02-06 hectares as is evident from the report file of Tehsildar, Dharamshala dated 25th October, 2010 appended with a compliance report submitted by the respondent on the affidavit of the Deputy Commissioner, Kangra at Dharamshala dated 19.11.2010. In other words, her encroachment over khasra No. 253/1 has increased from the year 1983 to the year 2010 from 0-01-17 hectares to 00-02-06 hectares.
In this view of the matter, in my considered view as the petitioner is a rank encroacher, she is not entitled for any of the reliefs which have been prayed for by way of this writ petition. Accordingly, as there is no merit in this writ petition, the same is, therefore, dismissed. No order as to costs. Pending miscellaneous application if any also stands disposed of.
(Ajay Mohan Goel) Judge 22nd May, 2017.
(Guleria) ::: Downloaded on - 25/05/2017 23:59:48 :::HCHP