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Himachal Pradesh High Court · body

2005 DIGILAW 194 (HP)

KUNDAN SINGH v. STATE OF H. P.

2005-06-10

A.R.BASU

body2005
ORDER This revision petition has been filed under Section 20 (3) of the H.P. Ceiling and land Holding Act, 1972, against an order passed by the Collector Sub-Division Rohru Distt. Shimla on 28.9.1992 whereby the learned Collector have vested 355.9 Bighas of surplus Land of the petitioner in the State Government and a subsequent order dated 3.12.2002 whereby the collector, on an application of the petitioner refused to re-call the order dated 28.9.1992. 2. Brief fats of the case are that vide an order dated 6.1.1975 the Collector Sub-Division Rohru had vested 355.9 Bighas of land of Sh. Kundan Singh Petitioner, situated in revenue villages Dhadi and Kuddu. Tehsil Jubbal Distt. Shimla in the State Government under the provision of the H.P. Ceiling and Land Holdings Act, 1972. Certain persons who had bought land from Sh. Kundan Singh in the years 1973 and 1974 preferred appeals before the Divisional Commissioner H.P. at Shimla praying that the land sold to them by Sh. Kundan Singh through registered sale deeds were bonafide transfer and therefore should not have been included in the land- declared surplus by the Collector. The learned Divisional Commissioner after hearing the appellants, held that the Collector and wrongly declared as surplus the land which had been purchased by the appellant under registered sale deeds from Shri Kundan Singh, particularly as sufficient land is left with Shri Kundan Singh in his own holding which has been allowed as his permissible area. He accepted the appeals vide his order dated 26.2.1976 and remanded the case back to the Collector. Sub-Division, Rohru for deciding the case afresh in accordance with the provisions of the Act ibid. 3. The matter remained pending with the Collector, Sub-Divisions, Rohru for about sixteen years i.e. till the year 1992 and was ultimately decided by him vide the impugned order dated 28.9.1992 wherein the learned Collector held that Shri Kundan Singh had sold land measuring 32.9 Bighas comprised in khasra No. 197/1/1 situated in Chak Kuddu, Tehsil Jubbal to Shri Madhwa Nand & Ors. Vide registered sale deed No. 69 dated 14.11.1972. Similarly land comprised in Khasra No. 197/1/2 measuring 30-18 bighas situated at the same revenue village to Sh. Rama Nand vide sale deed No.6 dated 17.1.1973. Vide registered sale deed No. 69 dated 14.11.1972. Similarly land comprised in Khasra No. 197/1/2 measuring 30-18 bighas situated at the same revenue village to Sh. Rama Nand vide sale deed No.6 dated 17.1.1973. The Collector held that since these parcels of land have been alienated after the appointed day i.e. 24.1.1971 these are to be included in the holding of Shri Kundan Singh which he has to retain after declaration of surplus area. The learned Collector further held that on being giving an opportunity to retain permissible area, Shri Kundan Singh preferred to retain 161.1 Bigha, the details of which have been stated in the impugned order. Shri Kundan Singh filed an application on 26.12.2001 before the Collector Sub-Division Rohru praying that the order dated 28.9.1992 may be recalled and he may be heard thereupon. The learned Collector rejected the same on 3.12.2002 on the grounds that there exists no provision under law to re-call the same. The petitioner has hence filed the present revision petition against the orders dated 28.9.1992 and 3.12.2002. 4. The record of the courts below was called for the arguments advanced by the learned counsel for both the parties were heard. 5.Shri Pawan Kaprate learned counsel for the petitioner argued that the learned Collector has vide the impugned orders dated 28.9.1992 merely repeated the earlier orders dated 6.1.1975 except that the land sold by the petitioner was included in his permissible area instead of the area declared surplus. Although the learned Divisional Commissioner had ordered that the matter may be heard afresh and decided thereafter. He claimed that as per Section 7 of the Act, the Collector is to determine whether a transfer is bonafide or not. He claimed that, in the present case, the learned Collector has not enquired into the aspect whether the transfers made by the petitioner by way of sale were bonafide transfer or not and incase of bonafide transfer the same should be excluded from the permissible area. The Collector could not have disposed of this issue summarily. 6. The learned counsel cited the Honble High Court of Himachal Pradesh in the matter of "Dalip Singh versus the State of Himachal Pradesh & Ors. (A.I.L.LR. 1981 Vol-II page 469). The Collector could not have disposed of this issue summarily. 6. The learned counsel cited the Honble High Court of Himachal Pradesh in the matter of "Dalip Singh versus the State of Himachal Pradesh & Ors. (A.I.L.LR. 1981 Vol-II page 469). He also cited this court in "Narinder Singh versus State of Himachal Pradesh (PLJ 1996 page 612)." He further contended that it has been clearly laid down under Section 7 of the Act, that the land held by tenant cannot be taken into account for determination of permissible area. He contended that owing to the illegality committed by the learned Collector in including the land held by tenants under Shri Kundan Singh in his permissible area, the order of the Collector is not sustainable in the eyes of law. He also argued that the action of the Collector is in utter disregard to the order of learned Divisional Commissioner and that even after the case was remanded back for fresh enquiry neither the same was done nor was he given any opportunity to file his return in form C-V after the changed circumstances. Even, land, in which tenants have acquired proprietary rights, have been included in the permissible area. He prayed that the matter may be remanded back to the Collector to be heard afresh on the said issues and due opportunity should be given to him for filing return afresh. 7. The learned D.A. (Revenue) argued for the State and contended that the provisions of the Section 7 of the Act ibid has no reference to the H.P. Tenancy and Land Reforms Act. According to him the petitioner had never challenged the order passed by the Collector dated 28.9.1992 by filing a regular appeal. According to him the petitioner had only filed a simple application for re-calling the said orders and that to after a considerable delay. The learned D.A. (Revenue) further argued that it has been stated by the learned Collector in his order dated 28.9.1992 that an opportunity to retain the preferred permissible area was given to the petitioner. He contended that the present revision petition is hopelessly time barred having been filed after a period of almost 13 years since passing of the impugned order dated 28.9.1992. He contended that the present revision petition is hopelessly time barred having been filed after a period of almost 13 years since passing of the impugned order dated 28.9.1992. He further argued that Section 3(b) of the Act lays down the appointed day as 24.1.1971 while the petitioner had alienated land after this date thus clearly establishing that these transaction were not bonafide. 8.1 have perused the record and have heard the learned counsel for both the parties. Section 7(l) of the Act ibid provides that: "Except in the case of land acquired by the Union Govt. or the State Govt. under any law for the time being in force or by a tenant under Pepsu Tenancy and Agricultural Lands Act, 1955, or the Punjab Security of Land Tenures Act, 1953, or the H.P. Abolition of Big Landed Estate and Land Reforms Act, 1953, no transfer by a person holding land in excess of the permissible area except to bonafide transfer after the appointed day shall affect the right of the State Govt. to the surplus area to which it would be entitled but for such transfers." Section 7(2) provides that:- "The Collector shall determine whether a transfer is bonafide or not and his decision shall be final." 9. Thus "except to bonafide transfer after the appointed day" clearly indicates that all transfer after the appointed day can not be termed as "not bonafide". Each transfer has to be examined on merits. The reasons for such transfer has to be examined after giving due opportunity to the seller to clearly his position. 10. The Collector, therefore, has to determine by holding due enquiry whether the transfer is bonafide or not. In the present case there is nothing on record to show that the learned Collector had provided any opportunity to the petitioner or carried out any enquiry to determine whether the sale transaction made by the petitioner were bonafide or not. The contention of the DA (Revenue) that all transaction made after the appointed dated i.e. 24.1.1971 were not bonafide transfers is incorrect. Had it been the intention of the legislature to declare all such transaction as not bonafide, the provisions of Section 7(2) of the Act would not have been added. It is therefore incumbent on the Collector to determine after conducting enquiry to this effect as to whether a particular transfer is bonafide or not. 11. Had it been the intention of the legislature to declare all such transaction as not bonafide, the provisions of Section 7(2) of the Act would not have been added. It is therefore incumbent on the Collector to determine after conducting enquiry to this effect as to whether a particular transfer is bonafide or not. 11. The learned counsel has cited "Narinder Singh & others versus the State of Himachal Pradesh (PLJ 1993 page 612) in which it has been held that- 12. H.P. Ceiling on Land Holdings Act, Section 7 and 11: declaration of surplus area- Sales whether bonafide and exempt while calculating permissible area-Circumstances: (I) no money to meet social obligations (land owners own marriage and marriages of his sister) and no alternative but to sell and. (ii) land sold Banjar and Ghasni, for away from Village (iii), sales not made to any relative or known family members but to strangers (iv) land sold through registered sale deeds at then prevailing market rate- Sale bonafide-exempt while calculating permissible area. 13. The learned Collector should keep the aspect in view while examining the claim of the petitioner for deciding the bonafide transfer. 14. In civil writ petitioner No 125/92, the Honble High Court of H.P. has observed that "it is difficult to uphold the view taken by the F.C. that he could not go into the nature of the transaction of sale in question as the decision made by the Collector is final." 15. Section 20(3) of the Act ibid does not admit of any limitation even in respect of power to go into property of order made by Collector under section 7(2) and hence the plea of the learned Distt. Attorney (Revenue) is not tenable. It is not correct that F.C. cannot go into the nature of the transaction of sale as the decision made to the Collector was final. Attorney (Revenue) is not tenable. It is not correct that F.C. cannot go into the nature of the transaction of sale as the decision made to the Collector was final. 16.lt has been held in the matter of Dalip Singh versus State of Himachal Pradesh by the Honble High Court of Himachal Pradesh (A.I.L.L.R. Vol-II page 469) that in:- Himachal Pradesh Ceiling on Land Reforms Act, 1972, "area cannot be taken into consideration for determining surplus area of the land owner plea that Section 7 visualizes acquisition prior to appointed day and not thereafter is not maintainable-Tenant acquiring proprietary rights by operation of laws after the appointed date-Vested area cannot be taken to consideration for determining permissible area and surplus area of the land owner." "Himachal Pradesh Tenancy and Land Reforms Act, 1972 Section 104-Tenant acquiring Proprietary rights with regard to a particular area-such area not to be taken into consideration for determining surplus area:- 17. It is therefore necessary that the learned Collector should keep this decision in view while deciding the permissible area, and area to be vested in State Government. 18.The learned Commissioner had vide his order dated 26.2.1976 directed the learned Collector that the matter may be decided afresh strictly in accordance with the provision of H.P. Ceiling on Land Holdings Act 1972 after due enquiry of the i transaction. In the instant case the learned Collector has, without conducting a fresh j enquiry, has decided that matter on the same lines as he had earlier decided that matter vide order dated 6.1.1975 without assigning any reasons for the same. This is a serious lapse on the part of the Collector. On the application preferred before the Collector by the petitioner for recall of the order dated 28.9.1992 on account of these lapses, which was rejected by him on 13.12.2002. I feel that in case of patent errors as has been committed in the instant case, no court is in such a position as not to have the powers to recall its own orders in such circumstances. 19. In view of the above discussion, I am convinced that the learned Collector has not exercised the jurisdiction as vested in him under law and therefore interference in revision is warranted. I therefore accept the revision petition. 19. In view of the above discussion, I am convinced that the learned Collector has not exercised the jurisdiction as vested in him under law and therefore interference in revision is warranted. I therefore accept the revision petition. The matter is remanded back to the Collector with the directions that he should conduct enquiry afresh into the factum of the sale transaction made by the petitioner as envisaged under section 7(2) of the Act ibid. The objections of the petitioner regarding the land held by the tenants under him should also be taken into consideration. As there is nothing on record to show that the petitioner was granted an opportunity to exercise his option for retaining land within the permissible area when the learned Divisional Commissioner had ordered for fresh decision, the petitioner should now be provided an opportunity to do the same. The matter now has to be decided by the Collector within three months of release of these orders as considerable delay at all levels has been committed. 20. Orders be communicated to the parties and the case file of this court be consigned to the record room after due completion.