IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP 8 of 2005. Date of decision May 14, 2008. Mohinder Sankhyan & others …Petitioners. Versus State of Himachal Pradesh & others ..Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the petitioner Mr. K.D.Sood, Advocate. For the respondents 1 & 2 Ms. Ruma Kaushik, Addl. AG. For respondents 3 and 4 Mr. G.D.Verma, Sr. Advocate, with Mr. T.S.Chauhan,Advocate. Dev Darshan Sud, J. (Oral) This writ petition has been preferred by the heirs of late Shri Jamna Dass against the order of the Financial Commissioner Annexure P-1 passed on a revision having been preferred by the respondents against the order of the Deputy Commissioner canceling the grant of land in their favour. A number of grounds have been taken by the 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - petitioner urging that the order of the Financial Commissioner is illegal and cannot be sustained in law. The proceedings between the parties have a long drawn history. Prior to the present proceedings, Revision Petition No. 127 of 1994 was preferred by the respondents herein qua the same land which was dismissed by the Financial Commissioner with the observations that if the Deputy Commissioner, Bilaspur deems it appropriate to recommend the case for exchange of land of the petitioner with the government land, he may do so after obtaining sanction etc. He also observes that cases of number of encroachments in Bilaspur have been brought to his notice and these require to be looked into by the Deputy Commissioner. This order was passed on 28.10.1996 vide Annexure P-5. Immediately thereafter, the respondents herein filed an application Annexure P-6 on 16.5.1997 before the Deputy Commissioner praying that land, subject matter of the writ petition, be given to them in exchange for the reasons stated therein. Objections were filed by the petitioners herein who, interestingly urged that they are the owners - 3 - of this land by adverse possession. Objections Annexure P-7 state: “1. That the objectors are in possession of the proposed land to be allotted since 1958 and have become owners by way of adverse possession. As such no grant can be made. 2. That the proposed land falls within the Municipal area as such no exchange is allowed. The ld. Collector has already cancelled the grants within the Municipal area suomotu. The copies of the orders are attached herewith. 3. That Smt. Amru Devi w/o Sh. Prem Lal Bambra is not an eligible lady for the grant” The Deputy Commissioner rejected the application for exchange and the respondents preferred revision against the order which petition was decided in favour of the respondents herein (petitioners before the Financial Commissioner). While disposing of the revision petition, it was held as a fact (Annexure P-1) that the revision petitioners therein (respondents in this writ petition) had surrendered their land to the government in order to put at rest the controversy regarding the right of way etc. claimed by the other residents from the government and this land was being put to public use. This fact was also - 4 - admitted by the District Attorney (Revenue) who appeared before the Financial Commissioner. While considering the order of the Deputy Commissioner, the Financial Commissioner, on a perusal of the record, held that there was no discussion in the order regarding the fact that the land of the respondents had been taken over by the government. From the record, he finds that in the year 1990, the grant had been recommended in favour of the replying respondents on the basis of detailed inquiry by the Sub Divisional Officer (Civil) holding that the land of the respondents was required for public purpose and pursuant to this, the petitioner had surrendered the land in favour of the government saving it from litigation and disputes being raised by the general public. He, therefore, proceeded to set aside the order of the Deputy Commissioner and restored the order of the Collector, Bilaspur, dated 4.8.1990 recommending exchange. Learned counsel appearing for the parties have raised a number of points for determination of this Court. Learned counsel for the respondents submits that no public interest is involved and - 5 - that the petition is motivated. He has drawn my attention to Annexure P-7 which are the objections which have been brought on record stating only that the objectors (petitioners herein) had become owners of the land by way of adverse possession and that the land was within the municipal limits and could not be given in exchange. Instead of dismissing the writ petition on the ground that the petitioners are motivated in filing the present writ petition for personal reasons, it would be in the fitness of things if the entire case is considered. As has been observed, the Financial Commissioner holds that the Deputy Commissioner has not at all considered the fact that the land has been surrendered by the respondents for public purpose and the government has taken over that land in public interest by utilizing it for a common passage. He also holds and rightly so that the detailed inquiry of the Sub Divisional Collector (Civil) which formed the basis of the grant by the Collector on 4.8.1990 has not at all been considered. This was the basis for exchange and its non consideration vitiates the order of the Deputy Commissioner. In addition, I also find from - 6 - the record that the objections which have been taken only show personal interest being exhibited by the petitioners irrespective of their pleadings which have not been supported by any material on record. It is this report which was the basis for grant of exchange. The objections as given in Annexure P-7 could not have been entertained in the first place since the objectors – (petitioners herein) were claiming piratical right of adverse possession against the government. Their motive was manifest and clear. They could not arrogate themselves the role of protectors of public property when they themselves base their claim on the basis of adverse possession purportedly on long uninterrupted occupation. In other words, a law breaker cannot be allowed to assume the mantle of a person crusading for public rights. In the circumstances, I do not find any merit in this writ petition which is accordingly rejected. There shall be no order as to costs. Pending application(s) shall stand rejected. Learned counsel appearing for the petitioners submits that the land which has been given to the respondents is situated next to the - 7 - National Highway and that if he constructs on that land, he will be violating the law. Surely, the order of the Financial Commissioner cannot be interpreted in the manner which would grant a license to the respondents to deal with the land / construct on it contrary to the law applicable. May 14, 2008 (PC). (Dev Darshan Sud), J.