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Himachal Pradesh High Court · body

2006 DIGILAW 125 (HP)

RINCHEN TSOMO v. STATE OF HIMACHAL PRADESH

2006-05-05

RAJWANT SANDHU

body2006
ORDER This revision petition has been filed by the petitioner against an order dated 10.6.2002 passed by the District Collector Kangra in case No. 18/99 vide which the land alongwith structures comprised in Khata No. 49, Khatauni No. 105, Khasra No. 494 measuring 0-01-36 Hect. situated in up Mohal Meleod Ganj, Tehsil Dharamshala was ordered to be vested in the State of Government for violation of Section 118 of the H.P.H.P. Tenancy and Land Reforms Act, 1972. 2. The facts of the case are that the Tehsildar Dharamshala reported to the Collector, District Kangra through the Sub-Divisional Collector, Dharamshala that the present petition had got a Sale Deed No. 105 dated 10.2.1994 pertaining to the land in dispute executed in her favour. However, this property was under the usage of Tibetans and it was a transaction and it was a transaction violation of Section 118 of the HP Tenancy and Land Reforms Act, 1972. The District Collector issued notice to the petitioner and after hearing the matter exparte as the petitioner failed to appear despite service, ordered the vestment of the land and structures standing thereupon in the State Government vide the impugned order dated 10.6.2002. Feeling aggrieved, the petitioner has come before this court on the ground that the impugned order has been passed exparte without giving a due opportunity to the petitioner and that when she fled an appeal against the order of the Collector before the Additional Commissioner (Appeals), HP., the same was dismissed. 3. I have heard the argument advanced by the learned counsel for the parties and have perused the record of the courts below. 4. Shri Ajay Sharma, Advocate, the learned counsel for the petitioner stressed that the petitioner had not been served effectively when the proceedings were going on before the trial court and she had wrongly been proceeded against exparte. Besides, the land in question was located within the Municipal Area and was not therefore land within the definition of the H.P. Tenancy and Land Reforms Act, 1972. He cited the case "Nirmal Singh versus Randhir Sharma, 1994(2) SLC, 255" to support his contention regarding definition of "Land" wherein it has been held that "the only category of land, which is excluded from the operation of Section 118 is that land or area which is constructed but which is not subservient to agriculture. He cited the case "Nirmal Singh versus Randhir Sharma, 1994(2) SLC, 255" to support his contention regarding definition of "Land" wherein it has been held that "the only category of land, which is excluded from the operation of Section 118 is that land or area which is constructed but which is not subservient to agriculture. Even an area, if recorded in revenue records as "Gair Mumkin of Gair- Mumkin-Makaan, the same would be included in the expression of land irrespective of the purpose for which the same is occupied or let out, except a constructed area which is not subservient to agriculture." The area is question was located in a Municipality and was covered partly by a built up structure and was in any case not subservient to agriculture". Hence the provision of Section 118 of the HP. Tenancy and Land Reforms Act, 1972 had been incorrectly applied. Also the property belonged to the petitioner and she had merely allowed its usage by the Tibetan organization. 5. Shri B.S. Thakur, Distt. Attorney (Rev) for State referred to the documentation on record in support of his arguments that this was a case of a benami transaction. Even the communication from the Tibetan authority included this property in the list referred to the H.P. Govt for consideration for transfer to them. 6. Having heard the counsel for both sides and perusal the record, I am of the view fiat the case hinges on the issue whether khasra No 494 can be considered to be land as per Section 2(7) of the H.P. Tenancy and Land Reforms Act. The judgement cited by the counsel for the petitioner is relevant here. This clarifies adequately that built up area in towns are not land for the purposes of this Act. Since the suit land is located in Muhal meleodganj which is admittedly a town area and most of the area is covered by a pucca structure and no part of the same is subservient to agriculture, this is not land within the definition of Section (7) of the Act ibid. 7. The proceedings under Section 118 could not therefore have been initiated in respect of this area. The revision petition is accepted. Announced in the open court today the 5th May, 2006. The record of lower courts be returned and the case file of this court be consigned to the record room after due completion.