IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.283 of 2015 Decided on 21st August, 2025 Shri Yudh Pal Singh and others …Petitioners Versus State of Himachal Pradesh and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? Yes For the petitioners: Mr. Bhupinder Gupta, Senior Advocate, with Mr. Ajeet Pal Singh, Advocate. For the respondents: Mr. Pushpinder Jaswal, Additional Advocate General, for respondent No.1 Ajay Mohan Goel, Judge (Oral) Though, as per report of the Registry, respondent No.3 is not served, however, learned Senior Counsel for the petitioners submits that said respondent is a proforma respondent and as the interest of the proforma respondent is commonly that of the petitioner, therefore, there is no need to await fthe service of the said respondent. On the request of learned Senior Counsel, the name of respondent No.3 is deleted for the purpose of the adjudication of this petition. 2 2. Heard learned Senior Counsel for the petitioners as well as Learned Additional Advocate General. 3. By way of this petition, the petitioners have assailed the order passed by Assistant Collector 1st Grade dated 16.01.2014, in terms whereof, the proceedings which were initiated against the petitioners under Section 163 of the Himachal Pradesh Land Revenue Act, stand transferred by the Assistant Collector to Sub-Divisional Collector, Solan, H.P., for its disposal in terms of the provisions of Himachal Pradesh Village Common Lands (Vesting and Utilization Act, 1974). 4. Learned Senior Counsel for the petitioners has argued that the impugned order is perverse per se. Learned Senior Counsel submitted that the predecessors of the petitioners had filed a suit against the respondents seeking a decree for declaration with consequential relief of injunction, wherein, it was claimed that the suit land was the personal property of the plaintiffs who were in possession of the same as owners since times immemorial and on the basis of wrong entries in the revenue records, on coming into force of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, the land 3 was erroneously shown vested in the State Government, which entries stood challenged. Learned Senior Counsel submitted that the suit was decreed in favour of the plaintiffs, however, the appeal preferred against the same by the State was allowed. 5. Feeling aggrieved, the predecessors in interest of the present petitioners filed a Regular Second Appeal before this Court i.e. RSA No. 9 of 1990 titled Laiq Ram and others versus State of Himachal Pradesh. Said appeal was allowed by this Court vide judgment dated 30.03.1994 and a decree for prohibitory injunction was granted in favour of the plaintiffs against the defendant restraining it from interfering with the plaintiffs possession otherwise than in due course of law over 15 plots of land, measuring 169 Bighas 10 Biswas subject matter of mutation No. 49 of village Chapala Tehsil and District Solan H.P., attested on 14th August 1995. 6. Learned Senior Counsel submitted that the Court further made it clear in said judgment that the decree passed in favour of the plaintiffs will not preclude the State of Himachal Pradesh from initiating proceedings as contemplated under Sub- section (5) of Section 3 of the Himachal Pradesh Village 4 Common Lands Vesting and Utilization Act, 1974 and as and when such proceedings are initiated by serving a statutory notice of 10 days upon the plaintiffs, it shall be open for them to raise all such issues as were raised by them in the Civil Suit or which are otherwise available to them in law before the Collector by pointing out that the land is of such a nature which has not lawfully vested in the State or that the same is exempted from such vestment and falls in either of the three categories mentioned in Sub-section (2) of Section 3 of the Act. 7. Learned Senior Counsel further submitted that despite this judgment passed by the Court in the Regular Second Appeal, proceedings were erroneously initiated against the petitioners under Section 163 of the Land Revenue Act. Therein, the defence of adverse possession way taken by the petitioners and accordingly the Court converted itself into a Civil Court. Thereafter, in terms of the impugned order, the authority transferred the case to the Sub Divisional Collector for disposal in terms of the provisions of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, by referring to the judgment passed in RSA No. 09 of 2019 without appreciating that 5 the authority was having no power to transfer the case to the Sub Divisional Collector. Learned Senior Counsel further argued that proceedings were initiated under Section 163 of the H.P. Land Revenue Act neither in consonance with the observations of the Court in the Regular Second Appeal nor the same could have been decided by the Sub Divisional Collector. Accordingly, learned Senior Counsel prayed that as the impugned order was per se perverse, the same be quashed and set aside. 8. Learned Additional Advocate General on the other hand submitted that because this Court in the Regular Second Appeal had conferred the discretion upon the State to proceed against the appellants therein under the provisions of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 in accordance with law, therefore, in this backdrop it cannot be said that there was any infirmity in the order impugned, because all that the authority has done is that it has referred the matter to the Sub Divisional Collector, Solan, H.P., to decide the same as per the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. 6 9. I have heard learned Senior Counsel for the petitioners as well as learned Additional Advocate General and have also carefully gone through the contents of the petition as well as the impugned order. 10. The judgment passed by this Court in RSA No. 09 of 2019 dated 30.03.1994 was made available for the perusal of the Court by the learned Senior Counsel for the petitioners. A perusal of this judgment demonstrates that the appeal was allowed by this Court in the mode and manner as was narrated to the Court by the learned Senior Counsel. 11. For ready reference, the relevant para of the said judgment is quoted hereinbelow:- “In the result, the appeal is partly allowed. Question of law formulated is answered in negative. Judgment and decree passed by the lower Appellate Court is set aide and that of the Trial Court is modified. A decree for prohibitory injunction was granted in favour of the plaintiffs-appellants against the defendant-respondent restraining it from interfering with the plaintiffs possession otherwise than in due course of law over 15 plots of land measuring 169 Bighas, 10 Biswas subject matter of mutation No. 49 of village Chapala Tehsil and District Solan H.P., attested on 14th August 1995. It is made clear that the decree passed in favour of the plaintiffs will not preclude the State of Himachal Pradesh from initiating proceedings as contemplated under Sub-section (5) of Section 3 of the Act. As and when such proceedings are initiated by serving a statutory notice of 10 days upon the plaintiffs, it shall be open for them to raise all such disputes as were raised by them in the Civil Suit or which 7 are otherwise available to them in law before the Collector by pointing out that the land is of such a nature which has not lawfully vested in the State or that the same is exempted from such vestment and falls in either of the three categories mentioned in Sub-section (2) of Section 3 of the Act. Such dispute, as and when raised, will be decided by the Collector in accordance with law. Costs on parties.” 12. Thus, it is evident from the perusal of the judgment passed by this Court that whereas a decree for prohibitory injunction was granted in favour of the appellants against the defendant-State restraining it from interfering with the plaintiffs’ possession otherwise than in due course of law, however, this Court observed that the decree passed in favour of the plaintiffs will not preclude the State from initiating proceedings as contemplated under Sub-section (5) of Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. 13. Now, incidentally, the record does not demonstrate that any proceedings were initiated against the petitioners or their predecessors-in-interest under the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilization Act 1974 by the State, in terms of the liberty granted by this Court. Erroneously, proceedings were initiated under Section 163 of the 8 Himachal Pradesh Land Revenue Act. Not only this, when the present petitioners took the plea of adverse possession before the learned Assistant Collector, said authority followed a strange procedure by calling upon the petitioners herein to file a plaint. It appears that Sub-section 3 of Section 163 of the Himachal Pradesh Land Revenue Act was interpreted by the Assistant Collector as if in the event of the defence of adverse possession being taken by the respondents therein, the conversion of the said Court to a Civil Court implies that party shall file a plaint and seek some kind of a declaration from the said authority which is not so. 14. Be that as it may, the matter did not end there. Thereafter, parties were called upon to adduce evidence etc., and probably when the judgment passed by this Court in RSA No. 09 of 2019 was brought to the notice of the Assistant Collector, he passed the impugned order, relevant portion whereof is quoted hereinbelow:- “The parties were directed to adduce the evidence in respect of their claim. The plaintiff examined only himself as PW-1 and State of H.P. examinedSh. Rattan Singh the then Field Kanungo Subathu as RW-1. Both these statements needs not to be discussed here as in my opinion while the proceedings initiated in this case by my predecessor have become infructuous in view of 9 the judgment and decree passed by the Hon’ble High court of H.P. on 30.03.1994 passed in RSA No.9 of 1990 in which a decree for prohibitory injunction was granted in favour of the plaintiff and against the defendant i.e. State of H.P. restraining it from interfering which the possession otherwise in due course of law which will not preclude the State of H.P. initiating proceedings as contemplated under Sub-section 5 of the Section 3 of the H.P. Village Common Land (Vesting & Utilization) Act by serving 10 days statutory notice on the plaintiff with the further direction that it shall be open for the plaintiff to raise all such claim before the Collector by pointing out that the suit land is of such a nature which has not been lawfully vested in the name of State of H.P. or the same way exempted from such vestment and falls in either of three categories mentioned in of Section 3 of the Act. In view of my above discussion, it is pointed out that undersigned exercising the powers of Assistant Collector 1st Grade is not competent to decide the present case and it is the Sub Divisional Collector who is exercising the powers of Collector under the Act ibid who can take cognizance and decide the case as per provisions contained under Sub-section (2) of Section (3) of the H.P. Village Common Lands (Vesting & Utilization) Act. Therefore, the case is transferred to the ld. Sub Divisional Collector, Solan for disposal. Case file be sent to the learned Sub Divisional Collector, Solan. H.P.” 15. This Court has no hesitation in holding that the order passed by the Assistant Collector 1st Grade is perverse. First of all, as observed hereinabove, liberty granted by the Court in the Regular Second Appeal to the State was to proceed under the provisions of the Himachal Pradesh Village Common Lands Act, by following the directions as were contained in the judgment. No proceedings were initiated against the predecessors of the petitioners by the Government under the provisions of the said 10 Act. That being the case, the Assistant Collector 1st Grade in the considered view of this Court, could not have proceeded with the matter under Section 163 of the Himachal Pradesh Land Revenue Act and best the said authority could have done was to have had closed the matter by referring to the judgment passed by this Court in Regular Second Appeal and thereafter it was upon the wisdom of the State to have had invoked the provisions of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, in terms of the observations of this Court, if it was so advised. 16. In the absence of all this being followed and done in letter and spirit, the impugned order passed by the Assistant Collector 1st Grade, on the face of it is perverse and, therefore, this petition is allowed and impugned order dated 16.01.2014 passed by the Assistant Collector 1st Grade, Solan, District Solan, H.P., is set aside as prayed for. Pending miscellaneous applications, if any, also disposed of. (Ajay Mohan Goel) Judge August 21, 2025 (Vinod)