IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 5 of 2005 Reserved on: 7.1.2010 Date of decision: 03.03.2010 Smt. Pratibha Kumari & Ors. …. Petitioners Versus State of H.P. & Ors. …. Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioners: Mr. Surinder Sharma, Advocate. For the respondents: Mr. Balwant K. Malhotra, Advocate. V.K. Ahuja, J.: This is a Civil Writ Petition filed by petitioner Rameshwar Chand, now represented by his legal representatives under Articles 226/227 of the Constitution of India. Briefly stated, the facts of the case as alleged by the petitioner are that in early 1960 he acquired land by purchasing 61 Bighas comprised in Khasra No. 43/2 and 439 of Girdo Niwah of Nahan Town from one Amar Singh and thus became owner in possession of this land. After purchase, he noticed that some construction is being made on the land and he addressed a letter dated 6.8.1963 to respondent No. 3 i.e. Chief Medical Officer, Nahan to bring to his notice that a building has been constructed on his 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 land illegally and factual position may be established. He alleged that on 22.7.1964 he received a letter from respondent No. 3 that the Medical Department requires land near the Leprosy Ward which appears to be possessed by the petitioner and he asked the petitioner’s consent as to whether he was willing to sell the same at the price to be assessed by the P.W.D, authorities. The petitioner informed respondent No. 3 vide his letter dated 26.11.1964 that the Leprosy Ward is situated in Khasra No. 349 alongwith the adjacent land around it, which is owned and possessed by the petitioner and the Medical Department may expedite the proposal for the purchase of this land. On 28.3.1966, the petitioner again represented to respondent No. 3 that 2½ years have passed since he made representation but no demarcation has been taken by the Department and nothing has been done. He alleged that the Department is in illegal possession of the said land. He thereafter himself got the land demarcated when nothing was done by respondent No. 3 and found that the Leprosy Ward has been constructed on the land comprised in Khasra No. 439/1, which is owned by the petitioner and the area was found to be measuring 2 Bighas 9 Biswas in possession of the Medical Department. It was further alleged that the petitioner made representation to respondent No. 2, who forwarded the same to respondent No. 3 to intimate the factual position, but the matter was kept pending by the Medical Department. It was also alleged that respondent No. 3 addressed various letters to settlement authorities requesting them to show if the land was in ownership of the petitioner and, therefore, the amount of compensation may be calculated. The petitioner also wrote letters to respondents No. 2 3 and 3 alleging that as per the report of the revenue authorities, the land measuring more than 2000 Sq. Mtrs. is under the illegal occupation of the Medical Department and inspite of the assurances given by the Medical Department, no compensation has been paid to him. The petitioner allegedly approached respondent No. 3 and enclosed copy of the jamabandi to show that he was the owner of this land but nothing happened and then he made a representation on 8.2.2002 to respondent No. 3 and alleged that respondent No. 3 had admitted that the encroachment has been made by the Medical Department and respondent No. 4 finally wrote that the land cannot be exchanged since no case was made out as the Department was in adverse possession for the last more than 15 years and respondent No. 4 i.e. Deputy commissioner informed respondent No. 3 that permission for exchange of land cannot be accorded. Accordingly, the petitioner filed the present writ in the nature of certiorari to quash the order of the Deputy Commissioner dated 6.4.2004 and prayed that a writ in the nature of mandamus be issued to respondent No. 3 to vacate the property of the petitioner illegally encroached or to make payment of lease or rent amount during which the illegal possession persists. In their reply, the respondents pleaded that the land was previously owned and possessed by the erstwhile Ruler of Sirmour State and during his life time, Medical Department had constructed a Leprosy Ward, kitchen etc. over part of the land comprised in Khasra No. 439 in 1958 and in the year 1961. It was pleaded that the construction made was in the knowledge of the then owner, which construction was completed in the year 1958 itself and the Medical Department is in exclusive possession of this land. It was 4 pleaded that the assertions made by the petitioner that he purchased the land and came in possession in 1960 are absolutely wrong and since contentious issues have been raised in the present writ petition involving disputed questions of fact and oral and documentary evidence will be required, therefore, the relief cannot be granted under Article 226 of the Constitution of India. I have heard the learned counsel for the parties and have also gone the documents placed on record. It is clear from a perusal of the pleadings of the petitioner that he purchased the land in 1961, but no copy of the sale deed has been proved on record, which was necessary. He is claiming tat he came in possession of the land also after purchase, but as per the allegations made by the respondents, the construction of the Leprosy Ward etc. had been started and completed in 1958 and 1961 and this fact was, therefore, required to be proved by the petitioner that at the time of purchase, he came in possession and no construction of the Health Department existed there. The respondents have also take the plea that they raised the construction at the time of the then owner i.e. Ruler of Sirmour State ad the Leprosy Ward exited over the suit land since the time of previous owner and, therefore, it was necessary for the petitioner to have proved as to when the construction was made by the Department, for which oral and documentary evidence was required to be led and this question cannot be decided in a writ petition. Moreover, the petitioner had to prove the demarcation report after demarcation having been taken from a competent Revenue Officer and then this could establish over how much portion the State was in possession, in which the petitioner has failed miserably having 5 no proof or any such report on record. This also could have been proved by the oral and documentary evidence and not by mere assertions made in the writ petition. The petitioner is banking upon some letter written by the Chief Medical Officer in which he alleged to have admitted that the construction of the Leprosy Ward existed over part of the suit land, but that undertaking cannot bind the State Government until and unless the Chief Medical Officer was proved to be a competent Officer to make any such admission on behalf of the State Government. This fact was to be proved in evidence as to whether any construction of the Medical Department existed over part of the suit land or not and the petitioner cannot rely upon any such admission made by the Chief Medical Officer, which letter has also not be proved on record. The mere filing of the copy of the letter is not sufficient to prove this fact. In regard to the submission that there was admission by an officer of the State Government, the learned counsel for the petitioner had placed reliance upon the following decisions: The decision in State of Haryana Vs. Mukesh Kumar and Ors., Equivalent Citation: (2009) 154 PLR 753. It is only a photo copy of the judgment and neither the book was given nor any certified copy or attested copy was placed on record which cannot be looked into. A perusal of the same also shows that the issue was framed as to whether the State is debarred from taking plea of adverse possession, but no findings were given in this regard by the Court. Therefore, this copy is of no help to the learned counsel for the petitioner. 6 The learned counsel for the petitioner has given number of books including the decision in Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel and others, (2008) 4 Supreme Court Cases 649, in regard to case under Domestic Violence Act, 2005 and the decision in Karnataka State Financial Corporation Vs. N. Narasimahaiah and others, (2008) 5 Supreme Court Cases 176, which is under the State Financial Corporation Act, 1951 and others which are not relevant for the present discussion are not being referred to in detail. The other decisions cited, namely, State of U.P. and others Vs. Manohar, (2005) 2 Supreme Court Cases 126, and M/s Dehri Rohtas Light Railway Company Limited Vs. District Board, Bhojpur and others, (1992) 2 Supreme Court Cases 598, are not relevant for present discussion and, therefore, these cannot be referred to. Reliance was also placed upon the decision in Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd., AIR 2005 Supreme Court 3454, wherein the Court had refused to entertain a writ petition on the ground of existence of an alternative remedy observing that if a serious disputed question of fact is involved arising out of a contract qua contract, ordinarily a writ petition would not be entertained. This decision does not help the petitioner and rather it helps the respondents. Apart from the above, it is also clear that the petitioner has not placed any document on record to show that he is owner of the land. He has also failed to establish that he had any right over the suit lad since he failed to prove his possessory title or possession at the time of filing of the suit. No copy of the 7 revenue record or copy of sale deed has been annexed or proved to show that the petitioner was the owner of the land in question. The question of ownership of the land cannot be determined in this writ petition. No copy of the demarcation report has bee placed on record to show that the petitioner was the owner or that the respondents have encroached upon the suit land and there is no evidence to show that since when possession is of the State, but the plea of adverse possession cannot be decided in a writ petition and has to be decided in a Civil Court when proper plea is taken and evidence is led by both the parties. It is, therefore, clear from the above discussion that the disputed questions of fact were involved which require evidence and even when there was a refusal by the State Government or its officers either to agree to the exchange of land or acquire the land or pay the compensation, the remedy open to the petitioner was to file Civil Suit claiming the relief, but he chose to file a writ petition, for which no relief can be granted to the petitioner. In view of the above discussion, the writ petition filed by the petitioner merits dismissal and the same is dismissed. However, the parties are left to bear their own costs. In view of the dismissal of the main writ petition, Misc. Application(s) pending if any, shall also stand disposed of ( V.K. Ahuja ), March 03, 2010 Judge (BSS) 8