IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP MO Nos. 46 and 47 of 2002 Date of decision April 28, 2009 __________________________________________________________ 1. CMP MO No. 46 of 2002 State of Himachal Pradesh ….Petitioner. Versus Jagidsh Ram ….Respondent CMPMO No. 47 of 2002 2. State of Himachal Pradesh …Petitioner Versus Krishanu ….Respondent ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ CMP MO No. 46 of 2002 For the Petitioner: Ms. Ruma Kaushik, Addl. A.G. For the Respondent: Shri Nalvesh Verma, Advocate. CMPMO No. 47 of 2002 For the Petitioner: Ms. Ruma Kaushik, Addl.A.G. For the Respondent: None. __________________________________________________________ Dev Darshan Sud, J. Both these petitions involve a common question of law and as such are being disposed of by this order. The State is aggrieved by order passed by the learned District Judge, Bilaspur in appeal preferred by the respondent herein against the order of 1 Whether reports of Local Papers may be allowed to see the judgment? 2 eviction passed by the Assistant Collector Ist Grade under the provision of Section 163 of the Himachal Pradesh Land Revenue Act (hereinafter referred to as the Act). The learned District Judge notices in the judgment that case set up by the respondent is one of adverse possession, therefore, in consonance with the provisions of Section 163, Sub-section 3 & 4 of the Act, has directed the case to be tried afresh in accordance with law. The State has challenged this order on a number of grounds. The point as urged for consideration is that the learned District Judge was not correct in directing the trial of the case by the Assistant Collector Ist Grade by converting the proceedings into civil proceedings as envisaged by Section 163 of the Act ibid. At this juncture, the provisions may be noticed:- “163 Prevention of encroachment on lands-(1) Where Government land or land which has been reserved for the site of the village or for common purposes or uses of the estate right-holders or of the co-sharers therein, has been encroached upon by any person or co-sharers for any purpose including the construction of a building or other structures or by planting trees therein, then- (3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade, (may proceed) to determine the question, as if he, were a Civil Court and shall exercise all such powers as are exercisable by a Civil Court. (4) For the determination of the question under sub- section (3), the Revenue Officer shall follow the same procedure as is applicable to the trial of an original suit by a Civil Court, and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908 to be specified therein. (5) An appeal from the decree of the Revenue Court made under sub-section (4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge in an original suit. 3 (6) A further appeal from the appellate decree of a District Judge upon an appeal under sub-section (5), shall lie to the High Court only if the High Court is satisfied that a substantial question of law is involved) (7) No suit or other legal proceeding shall lie against the Revenue Officer or any person acting under this section in respect of anything in good faith done or purported to have been done under the provisions thereof or the rules made thereunder. Explanation-For the purposes of this section, any person who holds land a lease granted by the Government for a fixed term and continues to be in possession of the land beyond the expiry of the period of lease shall be deemed to be an encroacher unless such person gets the lease extended or renewed.” The statutory mandate is clear and there is no doubt that the law requires the case to be decided as a civil suit and not in a summary manner in which the order of eviction has been issued in these cases. The learned District Judge has not closed the right of the State to eject the respondent herein but has only remanded the case for determination in accordance with the provisions of law. These petitions are disposed of accordingly. A direction is issued to the Assistant Collector Ist Grade to proceed with the case in accordance with law. Parties to appear before the Assistant Collector Ist Grade, Jhandutta, District Bilaspur on 29th May, 2009 who shall thereafter proceed with the case in accordance with law. Since the respondent is not represented in CMPMO No. 47 of 2002, a notice shall issue to him to be present on a date to be fixed by the Assistant Collector Ist Grade. Petition stands disposed of. No order as to costs. April 28, 2009 (Dev Darshan Sud) (ms) Judge. 4 5