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Himachal Pradesh High Court · body

2006 DIGILAW 364 (HP)

ROSHAN LAL v. DHARMU AND

2006-11-21

RAJWANT SANDHU

body2006
ORDER 1. This revision petition has been field against an order dated 11.3.2004 passed by the learned Divisional Commissioner, Mandi, in case No. 328/2003. 2.Brief facts of the case are that present petitioner filed an application before the Land Reforms Officer, Badsar for resumption of land under section 104 (8) (d) of the H.P. Tenancy and Land Reforms Act, 1972. The Land Reforms Officer rejected the application on 4.11.1991. 2. This order challenged in appeal before the District Collector, Hamirpur. The District Collector dismissed the appeal vide order dated 13.12.1996.Feeling aggrieved, the present petitioner filed a second appeal before the Divisional Commissioner, Mandi who also dismissed the appeal on 11.3.2004 holding that the petitioner was enrolled in the Army on 20.7.1961 and was discharged on 31.07.1989. He was not the owner of the land in question before joining the Army as the same was purchased by him in the year 1969 almost after 8 years of his joining the Army. The forefathers of the respondents were already recorded as non-occupy tenants over the land and the tenancy was not created by the petitioner during his active service six months prior to his joining the Army. The learned Commissioner held that the provisions of Section 34 (d) and 34 (dd) as well as section 104(8) were not attracted in the present case. 3. The present revision petition has now been filed on the grounds that the law has not been properly interpreted by the courts below and the provisions of the At have been misconstrued by these courts. 4. The record of the case has been seen and counsel for the parties heard. Counsel for the parties argued that the pertinent point in the case was the date on which Shri Roshan Lal, the petitioner inducted the tenants on the suit land. He purchased the suit land in 1969 while he was in the Army and he retired in 1989. The application in LR-V for resumption of land under tenancy was filed within time keeping in view his date of retirement. As a serving army personnel at that time when he bought the land, he was entitled to the protection afforded to the Army personnel under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 and the tenants could not be conferred proprietary rights in respect of this area. As a serving army personnel at that time when he bought the land, he was entitled to the protection afforded to the Army personnel under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 and the tenants could not be conferred proprietary rights in respect of this area. Under Section 34 of the Act ibid he was entitled to resumption of the land upto the extent of 5 acres. The courts below had acted wrongly in interpreting the law and holding that he was not a protected category of owner since he had not inducted the tenants on the land within the period of 6 months prior to his joining the army. 5. The learned counsel for the respondents stated that the present petitioner Shri Roshan Lal had lost his case at all levels i.e. Land Reforms Officer, Collector and Commissioner. Since there were concurrent findings in the matter this revision petition was not maintainable. The resumption application in LR-V before the Land Reforms Officer was not maintainable at all since Shri Roshan Lal was not a protected category of owner as per the provisions of section 104(8) (d). The tenancy on the suit land existed much prior to 1969 when the land was bought by Shri Roshan Lal and had continued under the ownership of petitioner. The tenancy was not created by the petitioner and therefore he was not entitled to resumption of the suit land under the provision of section 104(8)(d). 6. In rebuttal, the learned counsel for the petitioner stated that the rights of the previous owner were passed on the to the subsequent owners. Since the previous owners of the suit land had the right of resumption, under the provisions of H.P. Tenancy and Land Reforms Act, 1972, these rights were available to the subsequent owner of the land also. Shri Roshan Lal had become owner of the land in 1969 and as owner he was entitled to resumption of the land under tenancy as per the provisions in the Act. 7. Having perused the record, the orders passed by the courts below and weighted the arguments advanced by the counsel for the parties, it appears to me that it is not the petitioner who has created the tenancy on the suit land. 7. Having perused the record, the orders passed by the courts below and weighted the arguments advanced by the counsel for the parties, it appears to me that it is not the petitioner who has created the tenancy on the suit land. The tenancy existed since long and since Shri Roshan Lal had not created tenancy but had only acquired the ownership of the land in 1969, his application for resumption was not covered under the provisions of section 34(dd). As an ordinary owner of the land he could have exercised his right of resumption under Section 104(1) of the Act, ibid in 1975 itself when the Act came into operation but he cannot do so in 1989 on leaving the Army as the provisions of Section 104(8) (c) were not applicable in his case. This revision petition is hence rejected. 8. Announced in the open court today the 21.11.2006. Record of the courts below be returned and the case file of this court be consigned to the record room after due completion.