Himachal Pradesh High Court
Suresh Chand vs Parwati Negi & Ors on 30 August, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.1790 of 2017
Date of decision: 30.08.2024
.
Suresh Chand. ...Petitioner.
Versus
Parwati Negi & Ors. ...Respondents.
Coram:
Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner : Mr. Naresh K. Sharma,
r Advocate.
For the respondents : Mr. Hakam Bhardwaj, Advocate,
Mr. Chaman Negi, Advocate, for
respondent No.1.
: Mr. Y.P.S. Dhaulta, Additional
Advocate General, for
respondents No.1 & 2-State.
Jyotsna Rewal Dua, Judge
The petitioner is facing three concurrent orders
passed by the revenue authorities against him. Feeling
aggrieved he has instituted this writ petition laying challenge
to the aforesaid orders.
2. Heard learned counsel and considered the case
file.
3. The emerging factual position is that:-
Whether reporters of Local Papers may be allowed to see the judgment? Yes
3(i). Respondent No.1 on 30.03.2009 applied for
demarcation of land comprised in Khasra No.174/3 situated
.
in Mauza Mehli, Tehsil Shimla (Rural), District Shimla. This
khasra number was owned by respondent No.1-Smt. Parwati
Negi.
The demarcation was carried out on 10.06.2009
in presence of the present petitioner. He was found to have
encroached over the land comprised in Khasra No.174/3 to
the extent of 00-00-15 hectares. The encroachment was in
form of a retaining wall.
The Assistant Collector, 2nd Grade, confirmed the
demarcation vide order dated 15.06.2009.
3(ii). Petitioner assailed the order dated 15.06.2009 by
filing an appeal before the Collector, Sub-Division, Shimla
(Rural). His grounds for assailing the order dated
15.06.2009 were that:- Order has passed in violation of
principles of natural justice; Petitioner's land abuts the
roadside and had dimensions of 14x19 mtrs.; Petitioner had
raised the construction after leaving the set backs in
accordance with law; The construction raised by him was in
conformity with approved plans; and that the demarcation
on the application of respondent No.1 was not conducted in
consonance with applicable instructions.
.
The Collector dismissed the appeal preferred by
the petitioner on 30.03.2012. Factual findings were returned
that demarcation conducted on 10.06.2009 had been carried
out in accordance with applicable procedure and was in
conformity with law. There was no error in the order passed
confirming the demarcation.
r to
by the Assistant Collector, 2nd Grade, on 15.06.2009 in
3(iii). Still feeling not satisfied, the petitioner preferred
revision petition before the Commissioner reiterating the
grounds taken by him in the appeal. The Commissioner
dismissed the revision petition on 08.01.2015. While
dismissing the revision petition, the Divisional
Commissioner held that:-
The petitioner had taken a demarcation during
the year 2005. It was on that basis his map for
construction was approved.
Subsequently, the joint land was partitioned in
accordance with law. Mutation No.322 was
attested in this regard on 30.01.2009 and
petitioner was allotted 00-02-27 hectares of land
comprised in Khasra No.174/2.
.
On the application moved by Smt. Parvati Negi-
respondent No.1, demarcation was conducted
afresh on 10.06.2009. During this demarcation,
petitioner's plot land was measured as 17 mts
instead of 19 mtrs. as claimed by the petitioner.
The Divisional Commissioner returned the finding
that in case the petitioner's claim that he is owner
of land measuring 14x19 mts is accepted then his
area would become 00-02-66 hectares, which
would exceed his admissible share of 00-02-25
hectares by 00-00-41 hectares in Khasra
No.174/2.
In view of above findings, petitioner's revision
petition was dismissed by Divisional Commissioner.
3(iv). Aggrieved petitioner carried further revision
before the Financial Commissioner reiterating the grounds
taken before the Divisional Commissioner. Financial
Commissioner also dismissed the petitioner's revision
petition on 27.06.2017.
3(v). It is in the aforesaid circumstances, petitioner has
preferred this writ petition seeking following substantive
.
reliefs laying challenge to the order dated 15.06.2009 passed
by Assistant Collector 2nd Grade, confirming the demarcation
report as well as the concurrent orders passed by the
revenue authorities:-
"i. That the impugned order dated 15.06.2009,
Annexure P-2, order dated 30.03.2012, Annexure
P-3, order dated 08.01.2015, Annexure P-4 and
order dated 27.06.2017. Annexure P-5, may kindly
be quashed and set aside, by issuing a writ of
certiorari.
ii. That the Assistant Collector, 2nd Grade,
Shimla, H.P. may kindly be directed to pass a
proper order after affording reasonable opportunity
of being heard to the effected parties before
conferring the demarcation vide order dated
15.06.2009 (Annexure P-2), by issuing writ of
mandamus."
4. Consideration.
4(i) Following order was passed in the matter on
30.04.2019:-
"Since the solitary grievance of the writ
petitioner in the instant writ petition is
against the demarcation report, learned counsel
for the petitioner was asked to have instructions
as to whether the petitioner is willing for a fresh
demarcation at his expenses. The petitioner
is statedly ready for the same.
In this view of the matter,
Tehsildar, Shimla (Rural) is directed to carry
out fresh demarcation by constituting a
team of revenue officials headed by him
.
alongwith one Field Kanungo and Patwari
of the area concerned.
The petitioner shall approach the
Tehsildar, Shimla (Rural) within one week from
today whereupon the Tehsildar Shimla (Rural)
shall inform the petitioner about the total
expenditure likely to be incurred on the fresh
demarcation. The petitioner will deposit the
said amount within two days. Thereafter,
Tehsildar, Shimla (Rural) shall fix a date for fresh
demarcation and intimate the same to the parties
concerned well in advance. Let the demarcation
exercise be video-graphed. A status report
thereafter be filed before the Court.
List on 16th July, 2019."
In compliance to the aforesaid order, learned
Assistant Collector, 1st Grade, Shimla (Rural) conducted
fresh demarcation on 08.05.2019. The complete demarcation
report along with documents appended thereto has been
placed on record along with status report filed by the
Assistant Collector 1st Grade, Shimla (Rural) on 27.05.2019.
This demarcation report reiterates the position as was
ascertained in the demarcation report confirmed vide order
dated 15.06.2009 in respect of Khasra No.174/2.
4(ii). Learned counsel for the petitioner submits that
the demarcation conducted by Assistant Collector, 1 st Grade
.
on 08.05.2019 is not in consonance with law. Learned
counsel reiterated the petitioner's claim as raised by him
before the revenue authorities below that in demarcation
proceedings, petitioner's area has been reduced; That his
plot land has been measured as 17 mtrs instead of 19 mtrs.
The above factual contention has already been
elaborately examined by the revenue authorities. It has been
concluded that petitioner is basing his such claim in lieu of
demarcation taken by him in the year 2005, when the land
bearing Khasra No.174 measured 0-06-66 hectares and was
joint property. The fact is, that subsequently partition of
joint land was carried out, which was given effect to by
means of mutation No.322 ('Khangi Taksim') attested on
30.01.2009. In terms of the partition proceedings which
have attained finality, land of Khasra No.174 was divided
between the co-owners. Petitioner was allotted Khasra
No.174/2 measuring 00-02-25 hectares and respondent
No.1-Smt. Parwati Negi was allotted Khasra No.174/3
measuring 0-02-14 hectares. In case, the claim of the
petitioner is accepted that he is owner of land measuring
14x19 mts then his area would come to 00-02-66 hectares,
.
which would exceed his allotted share of 00-02-25 hectares
by 00-00-41 hectares. Petitioner's claim, therefore, is not
sustainable. Tatima prepared prior to attestation of mutation
No.322 on 30.01.2009 has lost its significance in view of
partition carried out subsequently.
5.
In view of (i) above discussion, and also (ii) in
light of concurrent orders passed on facts by three revenue
authorities below affirming the order dated 15.06.2009
passed by Assistant Collector, 2 nd Grade, confirming the
demarcation report dated 10.06.2009 as well as (iii) fresh
demarcation report dated 05.08.2019 furnished by
Tehsildar, Shimla (Rural), District Shimla, pursuant to the
order passed by the Court in this writ petition on
30.04.2019, no case for interference is made out. This writ
petition is, therefore, dismissed. All pending miscellaneous
application(s), if any, to also stand disposed of.
Jyotsna Rewal Dua
30 August, 2024
th
Judge
(Pardeep)
