Billa & Ors. vs State & Ors.

Land measuring 53 kanals 19 marlas comparison g Khasra Nos. 489/390/367/285 which is said to be shamlat Deh in village Kah of tehsil

Billawar, is at the root of controversy. Petitioner No.1 took possession of 16 kanals 10 marlas out of this land and petitioner 2 & 3 also followed by bringing the remaining portion under cultivation. They were ordered to be evicted by respondent No.4 vide his order No. 356 dt. 23.12.1977

after he found that the petitioners were not the shareholders in village shamlat and were illegal occupants of the land. He passed this order in terms of sec. 133 of the Land Revenue Act.

2 Petitioner took an appeal before the Deputy Commissioner, who vide order dt. 27.1.1979 overturned the order on the ground that the provision of sec. 133 of the Land Revenue Act do not empower the Tehsildar to pass orders of eviction in respect of shamlat Land. Thereafter on a revision,

a reference was made by the Divisional Commissioner to the Financial Commissioner, who, upheld the order of Tehsildar and held that he had the requisite competence to pass the order of eviction under section 133 of the Act. Pensioners field review petition against this order but failed.

In the objections filed by respondent No.5 it is submitted that the land is used as cremation ground and for grazing purposes for the inhabitants

of village Kah. It is pointed out that the petitioners are not the residents of this village and had no right to occupy the land in the question in face of the objection of the village community as Nautor of any such land is objectionable and prohibited by law. Petitioners stand physically evicted by the Naib Tehsildar on 15.5. 1985. It is also projected that petitioner No. l hold 69 canals 14 marlas of land and petitioner No.2 , 82 canals 16

marlas of land excluding the disputed land.

Be that as it may, it all turns upon whether or not the Tehsildar, Billawar, had rightly exercised his power to evict the petitioners of the land in

question.

According to the Financial Commissioner, this section is applicable not only to the illegal occupants of the State land but also to encroachment

on or cultivation of the common land or land reserved for public purposes or of which cultivation is prohibited or by a person not entitled to bring it under Cultivation. The relevant portion of this section is extracted here under:

Prevention of encroachment on common land :

(1) xx xx xx

(2) xx xx xx xx

(b) When land has been brought under cultivation by any person not entitled kunder any law or rules having the force of law to bring it under

cultivation, or

XX XX XX XX

A plain reading of this provision leavess no room for doubt that an Assistance Collector of first class or an officer in charge of the settlement or an

Asstt. Collector of first class subordinate to him, possessed the power to evict and eject any person who had brought the land under cultivation which he could not have done or to which he was not entitled under any law or rules having the force of law.

In the present case it cannot be anybody's case that the petitioners were entitled to bring the shamlat land under cultivation or that such

cultivation was permissible under law in force Therefore, the very fact that had taken over possession of shamlat land and that they were not the cosharer shamlat land any way had taken steps to cultivate this land which was admittedly prohibited and for which they were not entitled, it presents no difficult to hold that the Tehsildar, Billawar was competent to order their eviction from the land in exercise of the powers under Sec.

133 of the Land Revenue Act. I hold accordingly to dismiss this petition.

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