Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 698 (HP)

Amrit Lal v. State Of Himachal Pradesh

2013-07-30

NARINDER CHAUHAN

body2013
ORDER : Narinder Chauhan, Financial Commissioner This revision petition has come up for rehearing on the directions of the Hon'ble High Court in CWP No. 42/2008, wherein vide order dated 16.4.2012, relating to proceedings under Section 163 of H.P. Land Revenue Act, 1954 and the H.P. Village Common Lands Vesting and Utilisation Act, 1974, (hereinafter called Act) the Hon'ble High Court has directed the Financial Commissioner (Appeals) to reconsider the case and examine whether the amendment to Section 3 sub-section (2) with the insertion of (clause-d) of the 1974 Act, covers the case of the petitioner or not. 2. Clause 2(d) which was inserted vide amendment Act No. 20 of 2001, to the H.P. Village Common Lands Vesting and Utilisation Act 1974, reads as follows: - "(d) land recorded as "shamlat tika Hasab Rasad Malguzari" or by any such other name in the ownership column of jamebandi end assessed to land revenue and has been continuously recorded in cultivating possession of the Co-sharers so recorded before 26th January, 1950 to the extent of their shares therein" 3. The amendment of 2001, as per Section 1(2) of the Amendment Act, is deemed to have come into force w.e.f. the operation of the H.P. Village Common Lands Vesting and Utilisation Act, 1974. 4. In order to examine the case in its proper perspective it is important to chronologically chalk out the course of litigation of the said case, which is as follows: - (i) The AC 1st Grade, Hamirpur vide his order dated 19.03.1994, held that the petitioner is encroacher upon Government land with respect to khasra No. 44/19/1, 45/19/2, 46/19/1, measuring 7.0 kanal and 15 maria kita-3, situated in mauza Bhated Khurd, Tehsil Hamirpur. (ii) The orders of the Tehsildar also reveals that the disputed land was leased out by Gram Panchayat Pradhan, for period 19.09.1972 to 19.09.1975. However, subsequently the lease deed was not renewed and the said land was vested in favour of the State Government, after enforcement of the 1974, Act. (iii) The petitioner never renewed the lease deed and his plea of adverse possession was also not agreed to. However, subsequently the lease deed was not renewed and the said land was vested in favour of the State Government, after enforcement of the 1974, Act. (iii) The petitioner never renewed the lease deed and his plea of adverse possession was also not agreed to. However a limited concession was given by the AC 1st Grade, by recommending that on khasra No. 45/19/1 area measuring 0-18 maria, the petitioner already having constructed his house, the AC 1st Grade, ordered that under Section 2 (C) of the Act, the said khasra number, be got transferred in the name of concerned Gram Panchayat, against the column of shamlat tikka, and entry be made in shajra nasab and possession be given to the petitioner. Possession over other lands by the petitioner were found to be legal. (iv) Annexure "P" are orders of District Collector, Hamirpur, dated 23.04.1987, which indicates that Sh. Amrit Lal, (petitioner) was allotted khasra No. 22 (old number) measuring 8 Kanals as lease w.e.f. 19.09.1972 to 19.9.1975, on payment of Rs. 2.00 per month as rent. The lease period was further extended by Deputy Commissioner, Hamirpur upto 11.02.1982. However, as per Government instruction Rev.(l)-4-12/79 dated 31.08.1984, no lease could be granted by Deputy Commissioner within Municipal Corporation/notified area, therefore, the said lease was not subsequently renewed and possession of the land was ordered to be taken back by the Revenue Department. 5. Against the orders of AC 1st Grade dated 19.03.1994, an appeal was preferred before the Sub Divisional Officer (C), Hamirpur, who vide his order dated 28.01.1996, in case No. 23/94 upheld the cancellation of lease with regard to khasra No. 22 and rejected the appeal. 6. In a further appeal before the Divisional Commissioner, the Divisional Commissioner vide his order dated 21.01.1998, case No. 43/96, made a recommendation to the Financial Commissioner, for passing appropriate orders as Ld. Division Commissioner was of the view that since petitioner had constructed a house on the said land, and the AC 1st Grade had recommended khasra No. 45/19/1 area measuring 0-10 maria, to be transferred first in favour of Panchayat and then possession be given to petitioner and further that the appellate authority has net taken cognizance of the procedural formalities which should have been followed. 7. Before the Financial Commissioner, in revenue revision No. 205/98, vide order dated 30.12.2000, the Ld. 7. Before the Financial Commissioner, in revenue revision No. 205/98, vide order dated 30.12.2000, the Ld. Financial Commissioner, held that the plea of the petitioner as to long standing possession is not based on any cogent evidence available on the record, and as per jamabandi for year 1988-89, the land has been shown as banjar kadim, khudro drakhtan and partly as gair mumkin abadi, in the jamabandi for year 1988-89. Ld. F.C. (A) also noted that the AC 1st Grade, has no authority to recommend to Sub Divisional Collector to transfer Government land for the benefit of appellant and declined to accept the recommendations of the Divisional Commissioner and upheld the eviction order of AC 1st Grade, and Sub Divisional Collector, Hamirpur. 8. In CWP No. 1116/2001, vide order dated 5.12.2006, the Hon'ble High Court remanded the case back to the F.C. (A) in order to examine the effect of Amendment to the Act, on the grounds that the F.C. (A) order dated 30.12.2000, were prior to the amendment carried out during the year 2001, and that the submissions of the petitioner vis-a-vis status as a landless person, effect of grant of land before commencement of Act, and treatment of lease after the commencement of Act, in terms of Section 4 of the Act, ought to be examined afresh. 9. On remand the Ld. F.C. (A) in case No. 3/2007 (2005/98) vide his order dated 12.11.2007, held that as the petitioner did not challenge cancellation of his lease by the Collector, his status is that of an encroacher, as his lease was not extended by the Collector, Hamirpur and the termination of the lease is thus final. However, Ld. F.C. (A.) endorsed the views of the AC 1st Grades, wherein petitioner was accorded benefit of Section 3 (2)(c) which Section reads as follows: - 3 (2)(c)The provision of sub-section (1) of this Section shall not apply to lands described in clause (b) and (c) of that sub-section if, before the date of commencement of this Act - "such land built upon by an inhabitant by raising a residential house or cowshed". Ld. Ld. F.C., therefore, held that and on which the house has been constructed i.e. khasra No. 45/19/1 measuring 18 marlas would continue to remain with the petitioner and that this land would be deemed to be treated as a leased land with the petitioner under Section 4 of the Act. 9 (b). On the issue of petitioner being a landless person Ld. F.C. (A) held that neither the petitioner has established his status as a landless person, and moreover there are other appropriate schemes framed by the Government for the benefit of landless persons and his case as a landless cannot be considered under proceedings of a separate nature. The order of F.C. (A) also mentions that no Amendments in the H.P. Village Common Lands Vesting and Utilisation Act, 1974, have been brought to his notice, which can be of assistance to the petitioner. 10. Against the orders of F.C. (A) dated 12.11.2007, the petitioner again approached the Hon'ble High Court in CWP No. 42/2008, wherein Hon'ble High Court, has remanded the case back again and mandated to examine the case vis-a-vis amendment made to Section 3, sub-section (2) and clause (d). The relevant clauses are as follows: - a. ............................ b. ............................ c. ............................ d. "land recorded as "shamlat tika Basab Rasad Malguzari" or by any such other name in the ownership column of jamabandi and assessed to land revenue and has been continuously recorded in cultivating possession of the co-sharers so recorded before 26th January, 1950 to the extent of their shares therein". 11. During the arguments Advocate Ms. Ambika Kotwal, argued that the orders of D.C. Hamirpur, in not extending the lease over the said land are erroneous, as petitioner has already become owner of the said land by virtue of amendment to the H.P. Village Common Lands Vesting and Utilisation Act, 2001. It is thus prayed that the eviction order under Section 163 of the H.P. Land Revenue Act, be dropped and the said land cannot be vested in favour of State Government under Section 8 of the Act. 12. Dy. D.A, Sh. It is thus prayed that the eviction order under Section 163 of the H.P. Land Revenue Act, be dropped and the said land cannot be vested in favour of State Government under Section 8 of the Act. 12. Dy. D.A, Sh. Giri Raj Singh, has argued that the petitioner has encroached upon Government land and proceedings which are essentially under the H.P. Land Revenue Act, 1954, are sought to be delayed by seeking benefit of amendment to the H.P. Village Common Lands Vesting and Utilisation Act, 1974, which amendment is not applicable to the appellant as there is no proof that any possession of the petitioner is reflected in any revenue entries, and more so, there is not an iota of evidence to show that petitioner has been continuously recorded as being in cultivating possession prior to 26th January, 1950. Undoubtedly, the amendment made in 2001, has retrospective effect and is deemed to come into force with effect from the date of application H.P. Village Common Lands Vesting and Utilisation Act, 1974, and to that extent the applicability of Section 3, sub-clause 2(6), has to be seen w.e.f. 1974 onwards. Yet in the absence of any proof of revenue entry in petitioner's favour, he cannot be granted land which is otherwise village shamlat land and is in the constructive possession of all villagers. It was further argued that the modus operandi sought to be adopted by appellant, is similar to what the Justice Kuldip Singh Commission, has exposed vis-a-vis shamlat land in periphery of Chandigarh. Ld. D.A. has thus re-emphasized that revision be dismissed. 13. During the course of arguments Advocate was asked to furnish revenue record indicating possession of appellant. Even revenue record of 1951-52, indicates the land to be 'shamlat' land and the possession column indicates 'makbuja malkan', subsequent jamabandi clearly shows the said land to be in the ownership of Government of Himachal Pradesh and column of possession indicates land to be allot able pool, even mutation No. 87, no where reflects ownership of petitioner, therefore, no land against khatauni No. 7, for jamabandi of year 1951-52, has been shown to be in cultivating possession of various or individual co-sharers. The name of the petitioner does not find mention against the aforesaid khalauni of 1951-52, and neither is the land assessed to land revenue. The name of the petitioner does not find mention against the aforesaid khalauni of 1951-52, and neither is the land assessed to land revenue. Therefore, it cannot be said that the land on which petitioner had encroached was exempted from vestment to the State of Himachal Pradesh, in view of clause (d) of sub-section (2) of Section 3 of the H.P. Village Common Lands Vesting and Utilisation Act, 1974, (as amended by Act No. 20 of 2001). Alternatively petitioner has also claimed adverse possession, and right to renewal of the lease by the Deputy Commissioner. It cannot be ignored that lease by Deputy Commissioner was given to him in the year 1972, is prior to the coming into force of the Act and a subsequent order of the Deputy Commissioner in refusing to renew lease on the ground that District Collector has no powers to allot leases in Urban areas, is only proof of the fact that petitioner is not covered by either the amendment of Section 3 sub-section (2) (d) or even under Section 3 (2), a, b and c of the Act. 14. In view of the above said, I hold that on account of the failure of the petitioner to furnish any jamabandi as proof of him being in possession of the said land, with a view to be entitled to the benefit of Section 3(2) (d), it is clear that shamlat land vested in favour of the Government, and his status as an encroacher has been correctly arrived at. 15. The orders of Ld. F.C. (A) dated 12.11.2007, recommending that khasra No. 45/19/1 measuring 13 marlas on which land he has constructed his house should be treated as a deemed lease under Section 4 of the Act, is appropriate and recommendation has been made on the basis of his findings under Section 3 (2) (d) of the Act. 16. In view of the above said reasons the orders of AC 1st Grade, dated 19.03.1994, holding petitioner to be an encroacher under Section 163, of H.P. Land Revenue Act, are upheld for the reasons as explained above. Announced in open Court on 30.07.2013. The record of the Courts below be returned and the file of this Court be consigned to the record room after due completion.