Himachal Pradesh High Court
Manish Kumar Aggarwal vs Union Of India & Ors on 12 April, 2016
Bench: Mansoor Ahmad Mir, Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 9646 of 2013.
Reserved on: 9.3.2017.
.
Decided on: 12.4.2017.
Manish Kumar Aggarwal ......Petitioner.
Versus
Union of India & ors. .......Respondents.
Coram
of
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting? 1. Yes.
For the petitioner: Mr. Bhupinder Gupta, Sr. Advocate with Mr. Ajeet
rt Jaswal, Advocate.
For the respondents: Mr. Ashok Sharma, ASGI with Mr. Ajay Chauhan,
Advocate for respondents No. 1 to 3.
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Justice Dharam Chand Chaudhary, J.
The subject matter of dispute in this Writ Petition is the land entered in Khewat/Khatauni No. 122 min/174 min, 176 min and 177 min, bearing Kh. Nos. 1241, 1236/4, 1237/1, 1242, 1240/1 and 1243 (6 plots), measuring 0-39-91 hectares, situated at revenue estate Shamsherpur Chhawani (Chiranwali), Nahan, District Sirmaur. The petitioner claims himself to be the owner-in-possession of the land in dispute as according to him, he has purchased the same from its previous owners who were inducted as non-occupancy tenants by the landlords/Government and on conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, had become owners thereof. The petitioner, after having obtained the permission from Municipal Council, Nahan for sub division of plots in November, 2007 started development of the land in dispute and constructed a site office as well as store thereon. Besides a 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 2retaining wall for levelling the plots was also constructed whereas uneven surface of the land levelled by deploying machines and manual labour after .
spending huge amount. The respondents, however, with malafide intention to grab the land in dispute directed the Jawans to obstruct the passage leading to the land in dispute who dug pits in the passage with a view to obstruct egress and ingress of the petitioner, the labour and machines etc. of to the land in dispute. The petitioner requested them not to violate the law and stop interference in the municipal road but of no avail and as a result rt thereof, he approached the District Collector, Sirmaur who got the demarcation of the land conducted through Asstt. Collector (Ist Grade), Nahan. On demarcation, the path in question was found to be that of Municipal Council, Nahan. However, to the utter surprise of the petitioner, the Army Jawans trespassed into the suit land and demolished the site office and also the store as well as retaining wall. Besides, the machinery deployed there, was also damaged. This has led in registration of FIR No. 182 on 15.7.2008 under Sections 447, 448, 147, 149 & 427 of the Indian Penal Code against respondent No. 2. After registration of the FIR, the petitioner remained under the impression that better sense would prevail and the respondents may not cause interference in the land in dispute and as such again started the construction work but of no avail as the Army jawans again trespassed into the land in question and pulled down the shed which was reconstructed by the petitioner during the night intervening 23rd and 24th July, 2008. Again, FIR No. 192 dated 24.7.2008 under Sections 447, 448, 147, 148, 149, 427 and 506 of the Indian Penal Code was registered against the said respondent.
::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 32. Not only this, but the petitioner has filed Civil Suit No. 77/1 of 2008 for the decree of perpetual prohibitory injunction restraining the .
defendants from interfering or trespassing into the land in dispute in any manner whatsoever. The suit was contested by the first and second respondents who were arrayed as defendants. Learned Civil Judge (Jr. Divn.), Nahan, District Sirmaur vide judgment and decree dated 29.6.2011, of Annexure P-1, while decreeing the suit partly, has restrained the defendants from obstructing the petitioner from use of a passage to have rt egress and ingress to the land in dispute qua which it is the respondents who were declared to be the owners, however, not in possession. Since it is the petitioner who was found to be in possession of the land in dispute, therefore, respondents were directed not to evict him from the suit land while resorting to extra judicial method and rather it was left open to them to evict the petitioner therefrom in accordance with law.
3. The judgment and decree Annexure P-1 was further assailed by the petitioner in appeal registered as civil appeal No. 66-CA/13 of 2011 in the Court of learned District Judge, Sirmaur, District at Nahan, however, unsuccessfully because the appeal was dismissed by learned appellate Court vide judgment and decree dated 4.6.2012, Annexure P-2.
The judgment and decree, Annexure P-2 was, however, not assailed any further by the petitioner. On the other hand, since it was left open to the respondents to evict the petitioner from the land in dispute in accordance with law, therefore, the second respondent in the capacity of Estate Officer had served the petitioner with show-cause-notice, Annexure P-3 and thereby he was called upon to show cause why an order of his eviction ::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 4 from the land in dispute is not passed against him. Reply to the show-
cause-notice is Annexure P-4. The second respondent after hearing the .
petitioner and going through the reply Annexure P-4 as well as judgment and decree passed by the Civil Court, has held that the petitioner is in unauthorized occupation of the land in dispute and as such ordered him to vacate the same on or before 20.7.2013, vide order Annexure P-5. The of order Annexure P-5 was assailed before the appellate Authority i.e. learned Addl. District Judge, Sirmaur District at Nahan in an appeal under Section rt 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the Public Premises Act). The memorandum of appeal is Annexure P-6. Learned appellate Authority, however, has dismissed the appeal vide judgment dated 25.11.2013 Annexure P-7, while arriving at a conclusion that the Civil Court has already declared Union of India as owner of the land in dispute.
4. It is in this backdrop, this writ petition came to be filed in this Court with the following prayers:
"(a) Quashing Annexure P-5 and Annexure P-7 being illegal, arbitrary, unconstitutional and without jurisdiction.
(b) Directing the respondents to produce the entire record.
(c) Awarding cost in favour of the petitioner against the respondents of the proceedings throughout.
(d) Any other such other order, writ or direction that may be found appropriate in the facts and circumstances of the case in favour of the petitioner."
5. Order Annexure P-5 passed by respondent No. 2 in the capacity of Estate Officer and Annexure P-7 by learned Addl. District ::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 5 Judge, Sirmaur District at Nahan have been assailed on the grounds, inter alia, that the proceedings for eviction initiated under the provisions of the .
Act are without any jurisdiction. Otherwise also, the proceedings initiated against the petitioner by the respondents could have not been decided summarily, particularly when neither the ownership nor title or possession of the respondents in the land in dispute was established. The notice of Annexure P-3 was absolutely fallacious as the land in dispute was not public premises and rather purchased by the petitioner from its previous rt owners and as such the proceedings under Public Premises Act could not have been initiated against him. Otherwise also, highly disputed questions of law and facts were involved, therefore, the respondents allegedly acted without jurisdiction while holding that the petitioner was in unauthorized occupation thereof. The judgments Annexure P-1 and P-2 passed by learned Civil Court had no bearing on the merits of the proceedings initiated under the Public Premises Act by respondent No. 2 against the petitioner.
6. The State of Himachal Pradesh was not arrayed as party in the suit, therefore, the findings recorded by the Civil Court had no bearing on the merits of the present proceedings, which according to the petitioner were required to be determined and disposed of independently. The petitioner who had acquired right, title and interest in the property in dispute, the same could have not been taken away mechanically and in a summary manner.
7. Respondents No. 1 to 3, when put to notice had contested the petitioner's case as set out in the Writ Petition. According to the ::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 6 respondents, since it is the Union of India, the owner of land in dispute, therefore, respondent No. 2 with the assistance of Army jawans had rightly .
stopped the construction work which was in progress thereon. Since the Civil Court had reserved liberty in favour of the competent authority to initiate eviction proceedings against the petitioner in accordance with law, therefore, the second respondent having been declared the Estate Officer of under the Public Premises Act vide notification dated 21.7.1978 Annexure R-1 has, rightly served the petitioner with show-cause-notice and after rt taking on record his version declared him in unauthorized occupation of the land in dispute. He, as such, was rightly ordered to be evicted therefrom vide order Annexure P-5. The appeal, he preferred before learned appellate Authority, was also dismissed. As per further stand of the respondents, since the Civil Court had declared the Union of India as owner of the suit land, therefore, there was no occasion to respondent No. 2 to have again entered upon any such question qua the title of the land in dispute and as such it is denied that the eviction order has been passed summarily against the petitioner. Rejoinder to the petition has also been filed.
8. The points, which we have culled out from the rival submissions and need consideration are that the land in dispute is public premises within the meaning of provisions contained under the Public Premises Act or not and that the petitioner is not a trespasser and rather the true owner thereof. Then comes the question of competency of the second respondent to act as an Estate Officer under the Public Premises ::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 7 Act and his competency to initiate eviction proceedings with respect to the land in dispute.
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9. In order to decide these points, it is first to be seen as to what constitutes 'public premises' within the meaning of the Public Premises Act.
For the sake of convenience, we reproduce here the definition of 'public premises' as find mention under Section 2(e) of the Public Premises Act.
of The same reads as follows:
"2 [(e) "public premises" means-- (1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and rt includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980) under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat.
.............................................. ..............................................."
10. Now, what the word "premises" under the Act means, we are reproducing here the provisions contained under Section 2(c) of the Public Premises Act as follows:
"2(c) "premises" means any land or any building or part of a building and includes,-- (i) the garden, grounds and outhouses, if any, appertaining to such building or part of a building, and (ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof."
11. Therefore, 'public premises' includes the building/structure and also includes land belonging to Central Government. In the case in hand, the subject matter of dispute is land. While the petitioner claims the land in dispute belonging to him, at the same time, it is the case of the ::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 8 respondents that it is the Nahan Military Station owner thereof. The petitioner claims his title over the land through the previous owners, who .
according to him were inducted as non-occupancy tenants by the State Government thereon and on conferment of proprietary rights under the provisions of H.P. Tenancy and Land Reforms Act, 1972 have acquired title therein. He has acquired the land by way of sale deed from its previous of owners. Learned Civil Judge (Jr. Divn.), Nahan, while deciding Civil Suit No. 77-1 of 2008 and taking note of the entries in the Jamabandi for the rt year 1951-52, no doubt has held that it is the State Government which was the owner of the land in question whereas the same was in the possession of the Cantonment (Mehakama Cantonment) and one Najir Khan was recorded as tenant under the Cantonment. The entries qua the tenancy of Najir Khan were carried forward in the Jamabandi for the year 1959-60.
This land was shown in the ownership of the State Government, however, in possession of the Municipal Committee and Najir Khan was shown as tenant under the Municipal Committee. Then again in the Jamabandi for the year 1963-64, this land was recorded in the ownership of the State of Himachal Pradesh and shown in possession of Cantonment and in the cultivative possession of said Najir Khan. The same entries were repeated in the Jamabandi for the year 1968-69 and also in 1973-74. On coming into force the H.P. Tenancy and Land Reforms Act, 1972, the proprietary rights over the land in dispute came to be conferred upon Sher Khan etc. who had succeeded Najir Khan aforesaid. However, by way of 1987 amendment, the following proviso was added to Section 104 of the H.P. Tenancy and Land Reforms Act, 1972:
::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 9"Provided that nothing contained in this Section shall apply to such land which is either owned by or is vested in Govt. under .
any law, whether before or after the commencement of this Act and is leased out to any person."
12. Therefore, when the land continuously remained recorded in the ownership of the State Government, the proprietary rights in respect of the same could have not been conferred upon Sher Khan etc. When the of proprietary rights could have not been conferred upon the persons, through whom the petitioner is claiming his right, title and interest in the rt land in dispute, his claim that he has acquired the same through registered sale deed is highly untenable. The petitioner, therefore, cannot be said to have any right, title or interest in the land in dispute. The entries qua the possession thereof being shown in revenue record in favour of second respondent whereas in the ownership of the State Government, the same for all intents and purposes, is public premises in terms of provisions contained under the Act.
13. Now, if coming to the second limb of arguments addressed on behalf of the petitioner, it would not be improper for us to hold that the petitioner is a trespasser into the land in dispute. As per the Black's Law Dictionary (10th Edition), a trespasser is a person who wrongfully enter on the property of others. Since the persons through whom the petitioner has claimed right in the land in dispute were not legally entitled to conferment of proprietary rights under the provisions of H.P. Tenancy and Land Reforms Act, 1972 upon them, therefore, they could have not been ::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 10 termed as owners thereof. They were also not competent to sell the land in question to the petitioner.
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14. Interestingly enough, amendment to Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, as noticed supra, is not prospective but retrospective in nature, as has been discussed in detail by learned Civil Judge (Jr. Divn.), Nahan in judgment Annexure P-1. As a matter of fact, of this judgment considers, discuss and decide the status of the land in dispute, the question of its ownership and the status of the petitioner as a rt trespasser being in unauthorized possession thereof, with the help of oral as well as documentary evidence. The Civil Court, as such, has dealt with all these questions after holding full trial between the parties on both sides and affording them due opportunity of being heard. The judgment Annexure P-1 even has been upheld in appeal by learned District Judge Sirmaur District at Nahan vide judgment dated 4.6.2012 Annexure P-2.
The petitioner has not opted for challenging the judgment and decree passed by learned District Judge any further by way of filing second appeal in this Court meaning thereby that the findings recorded by the Civil Court qua the State Government was owner of the land in dispute whereas the second respondent Shamsherpur Chhawani, Nahan in possession thereof have attained finality. True it is that actual possession in view of the judgment and decree passed by the Civil Court was that of the petitioner and it is for this reason the liberty was granted to the respondents to initiate ejectment proceedings against him as per law.
15. It is not the case of either party that the land in dispute is situated in Cantonment area or that Nahan Cantonment area has been set ::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 11 up, however, a military station i.e. headquarter of Ist Batallion Parachute Regiment (SF) is situated at Nahan. The Station Commander thereof is the .
second respondent. The property, as such, is public premises for all intents and purposes. It lies ill in the mouth of the petitioner to claim that the second respondent had no jurisdiction to initiate eviction proceedings against him for the reason that vide notification Annexure R-1 to the reply of filed on behalf of the respondents, the Station Commanders of all Cantonment and military stations were appointed as Estate Officers, hence petitioner.
rt respondent No. 2 is competent to initiate eviction proceedings against the No doubt, show-cause notice Annexure P-3 issued by the second respondent for ejectment of the petitioner from the land in dispute has been contested vide reply Annexure P-4 thereto filed on behalf of the petitioner, however, on such grounds not legally admissible and rather already gone into in detail and adjudicated by the Civil Court with the help of cogent and reliable evidence. As a matter of fact, when the objections raised to the reply to the show-cause-notice were already considered and rejected by the Civil Court, there was no occasion to the Estate Officer i.e. second respondent to have sit over the judgment of the Civil Court and opened the Pandora box by resorting to reconsider such question afresh in the proceedings under Section 4 of the Public Premises Act which to our mind is summary in nature and not otherwise as argued on behalf of the petitioner.
16. The main thrust laid on behalf of the petitioner is that the second respondent irrespective of judgment and decree passed by the Civil Court was required to have independently gone into all questions such as ::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 12 the land in dispute was public premises or not and that the petitioner has no right, title or interest therein and rather is unauthorized occupant .
thereof, however, in our considered opinion, the Estate Officer could not have sit over the findings recorded by the Civil Court on all these questions which have even been accepted by the petitioner also because it is for this reason, he has not assailed the same any further in this Court by way of of filing second appeal. Learned counsel representing the petitioner, therefore, has failed to persuade us to take a view of the matter contrary to rt the one which has been taken by the second respondent and also by the appellate Authority i.e. Addl. District Judge, Sirmaur District at Nahan who has decided the appeal preferred by the petitioner under Section 9 of the Public Premises Act vide judgment Annexure P-7. It is seen that the judgment Annexure P-7 is well considered and well reasoned, hence calls for no interference in this writ petition.
17. There is no denying to the legal principles that in eviction proceedings where the person in occupation of the government land raises bonafide dispute involving question of title and his right and interest therein, the proceedings cannot be decided summarily as settled by the Apex Court in State of Rajasthan vs. Padmavati Devi & ors., 1995 Supp. (2) SCC 290 and in Government of Andhra Pradesh vs. Thummala Krishna Rao and another, (1982) 2 SCC 134. However, distinguishable on facts for the reason that in the case in hand, the Civil Court after holding full trial has authoritatively held that the petitioner is not owner of the land in dispute and as such, there is no question of claiming his right, title or interest therein. The findings so recorded have ::: Downloaded on - 15/04/2017 20:07:16 :::HCHP 13 attained finality, therefore, the second respondent while placing reliance on the judgment and decree passed by the Civil Court has rightly concluded .
that the petitioner is not owner of the land in dispute and rather a trespasser. The only option in such a situation was to have passed an order of his ejectment, therefore, the order Annexure P-3 passed by the second respondent which even has been confirmed by the appellate of Authority vide judgment Annexure P-7 cannot be said to be illegal or suffering from any material irregularities. The ratio of the judgment of rt Kerala High Court in Metro Studio vs. Canara Bank, 2003(2) RCR 664 is also not attracted in the given facts and circumstances of this case.
18. In view of what has been said hereinabove, this Writ Petition is without any merits and the same is accordingly dismissed. Pending application(s), if any, shall stand dismissed.
( Mansoor Ahmad Mir ), Chief Justice.
April 12, 2017, ( Dharam Chand Chaudhary ),
(karan-) Judge.
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