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2013 DIGILAW 976 (HP)

Kishan Chand v. Harjesh Singh

2013-11-22

NARINDER CHAUHAN

body2013
ORDER : Narinder Chauhan, Financial Commissioner The revision petition under Section 114 of the H.P. Tenancy and Land Reforms Act, 1972, is directed against the order dated 2.4.2010, passed by the Commissioner, Kangra Division, in Appeal No. 330/2003, whereby he has accepted the appeal and set aside the order dated 27.10.2003, passed by the Collector (ADM), Kangra, as well as the order of the Land Reforms Officer, Dharamshala, dated 7.8.2001. 2. Briefly stated, the facts of the case are that Shri Kishan Chand, present petitioner had filed two LR-V Forms for resumption of land before L.R.O., Kangra; one pertaining to Mohal Upahu, vide Misal No. 1733, against Shri Charnaru Ram, tenant, and another; pertaining to Mohal Jhikli Dari, vide Misal No. 102-D, against Shri Punnu and other tenants. The LRO took up the LR-V form in Misal No. 1733 for resumption of land in Mohal Upahu and decided the same vide order dated 6.8.1984, by allowing resumption of land to the extent of the prescribed limit from Shri Chamru Ram, tenant. However, no proceedings were undertaken by the L.R.O on the second LR-V form, pertaining to mohal Jhikli Dari till 13.3.1990, and in the mean while a new tehsil was created at Dharamshala and the matter was transferred by the L.R.O Kangra to the L.R.O., Dharamshala. The respondent after concealing the material facts from the Court of L.R.O., Dharamshala, also obtained land from the tenants i.e. the present respondents in mohal Jhikli Dari, vide order dated 20.3.1991. 3. Feeling aggrieved with this order of the LRO, Dharamshala, dated 20.3.1991, the respondents filed an appeal before the Collector, Kangra District, who dismissed the same vide order passed in appeal No. 6/91, dated 16.3.1992. The respondents then went up in further appeal to the Commissioner, Kangra division, who set aside the orders passed by both the Courts below vide order dated 13.11.1998, passed in Appeal No. 78/92, and remanded the case back to the LRO, Dharamshala, for holding a fresh detailed enquiry by affording opportunity to all the parties concerned to decide the matter afresh. 4. 4. After remand, the L.R.O., Dharamshala, initiated fresh enquiry into the matter and after hearing both the parties, vide order dated 7.8.2001, allowed the owner to resume the land comprised in khasra No. 406 "kuhal awal", measuring 0-16-12 hectares, under the tenancy of S/Shri Karam Chand, Hari Ram, Ishwar Dass and Raj Kumar, present respondents, for his self cultivation, whereas ownership rights were given to the tenants on the remaining land held by them under tenancy without any compensation. 5. Feeling aggrieved with this order elated 7.8.2001, the present respondents (tenants) filed appeal before the Collector, Kangra at Dharamshala. After hearing the parties and on perusal of the records, the Ld. Collector (ADM), Kangra, upheld the above order of the LRO, Dharamshala, vide order dated 27.10.2003, passed in Case No. 69/2001. 6. The respondents went up in further appeal before the Commissioner, Kangra division, who after taking into consideration the entire records and the averments of both the parties, allowed the appeal vide the impugned order dated 2.4.2010, holding that the present petitioner has wrongly resumed the land for self cultivation from the present respondents (tenants), and he has, therefore, set aside both the orders of the Courts below. 7. Against, this impugned order of the Id. 7. Against, this impugned order of the Id. Commissioner, Shri Kishan Chand, the land owner, has filed this revision petition before this Court, inter alia, on the grounds; that as per the provisions of the H.P. Tenancy and Land Reforms Act, 1972, the land held by a land owner is to be seen on the appointed day i.e. 3.10.1975, and as per the records, the petitioner was owner in possession of khasra No. 365 measuring 0-18-00 hectares, khasra No. 3834, measuring 0-12-08 hectares and khasra No. 1132, measuring 0-04-21 hectares, as such, the land held by the petitioner is 0-34-29 hectares and if the land comprising khasra No. 347/151, measuring 040-34 hectares, resumed by the petitioner from Shri Chamaru is to be taken into consideration, then the total land holding of the petitioner comes out to 0-44-63 hectares, and as such the petitioner is entitled to further resume land to the extent of 0-16-37 hectares from the respondents vide LR-V form in Misal No. 102/D. Further it has been averred that the judgment and decree dated 13.1.1984, passed in civil suit No. 52/82, will not affect the rights of the petitioner to resume the land from the respondents as the said decree was passed after the enforcement of the H.P. Tenancy and Land Reforms Act, 1972, Lastly, it has been averred that no iota of evidence is on record to prove that the petitioner is acquiring excess land on the appointed day and as such, the impugned order of the Commissioner is based on surmises and conjectures, and thus, liable to be set aside. 8. I have heard the learned Counsels for both the parties and also perused the records of the Courts below. On perusal of the records of the Courts below, it is evident that the petitioner Shri Kishan Chand had already resumed land in mohal Upahu from Shri Chamaru, tenant, comprising khasra No. 151/2 old, (new 347/151), area measuring 0-10-34 hectares, as per the order of L.R.O., Kangra, dated 6.8.1984, to make up the deficiency of permissible area allowed to him under Section 104(3) of the H.P. Tenancy and Land Reforms Act. It is further borne out from the perusal of the above order of the L.R.O. Kangra, passed in misal No. 1733 (a certified copy of which is available at page 17 of the file of L.R.O.), that the petitioner was already in possession of 0-50-47 hectares of irrigated land under his self cultivation and in order to allow him to resume permissible irrigated area to the extent of 0-60-76 hectares, he was allowed to resume 0-10-34 hectares irrigated land by the LRO, Kangra, from Shri Chamaru, tenant in mohal Upahu. The above order of the LRO further discloses that the petitioner Shri Kishan Chand had deliberately not disclosed the details of his land under tenancy in mohal Jhikli Dari while filing LR-V form in respect of Mohal Upahu. Obviously, at that time Sh. Kishnn Chand did not want to disclose the details of his land held in Mohal Jhikli Dari and, therefore, he stated before the L.R.O. Kangra, that he did not want to resume land from his tenants in the above mohal. However, after resuming land in Mohal Upahu from said Shri Chamaru tenant, he later on kept pursuing his application for resumption of land from tenants in mohal Jhikli Dari. 9. The order dated 7.8.2001 of the LRO, Dharamshala, whereby the petitioner has been allowed to resume land in mohal Jhikli Dari states that the land owner (petitioner) keeps 0-44-63 hectares land in his self cultivation on the 'Appointed day' and he is entitled to resume 0-16-12 hectares from the tenants, and thus he was allowed to resume khasra No. 406, measuring 0-16-12 hecaters (Kuhali Awal), from the tenants S/Shri Karam Chand, Hari Ram, Ishwar Dass and Raj Kumar sons of Shri Jaishi, i.e. the predecessor-in-interest of the present respondents No. 1 and 2 late Shri Karam Chand, and the other respondents. Thus, the order of LRO, Kangra, dated 6.8.1984 and the order of L.R.O., Dharamshala, dated 7.8.2001 are self-contradictory. Whereas the order of the LRO, Kangra, dated 6.8.1984, mentions 0-50-47 hectares irrigated area under the self cultivation of the petitioner on the relevant time, the later order of the L.R.O. Dharamshala, dated 7.8.2001, makes mention of 0-44-63 hectares as being under self cultivation of the petitioner. 10. The Id. Commissioner, in his impugned order dated 2.4.2010, has discussed in detail the discrepencies found in the order of the LRO dated 7.8.2001. 10. The Id. Commissioner, in his impugned order dated 2.4.2010, has discussed in detail the discrepencies found in the order of the LRO dated 7.8.2001. He has also held that the order of the LRO, Dharamshala, resuming land from khasra No. 406 to the extent of 0-16-12 hectares, is legally wrong because the LRO has allowed to resume land more than half of the total land from one non-occupancy tenant, whereas there were other non-occupancy tenants of the present petitioner in mohal Jhikli Dan from whom there is no mention of resumption of land in the order of LRO dated 7.8.2001, nor any reasons thereof have been mentioned. Further, the Id. Commissioner has also observed that the LRO has not made any inquiry qua the old khasra Nos. 504 and 548 under the possession of the present respondents, out of which new khasra Nos. have been carved out. During settlement, out of khasra No. 548 min, new khasra No. 406, measuring 0-10-10 hectares, has been carved out, which is recorded under the non-occupancy tenancy of the present respondents. Whereas from old khasra Nos. 504 and 507 min, new khasra No. 365 measuring 0-21-71 hectares has been carved out and as per Misaal Hakiat, it is recorded under the self cultivation of the present petitioner. According to the Ld. Commissioner, if the present petitioner had mentioned old khasra Nos. in his LR-V form, then the LRO should have also taken into consideration the new khasra Nos. carved out from the old khasra Nos. mentioned in the application form of the present petitioner. 11. Keeping in view the above facts, as also the discrepencies pointed out by the Id. Commissioner in his order and discussed in para 10 above, the case is remanded back to the L.R.O., Dharamshala, for fresh inquiry and decision after taking into consideration the land held by the petitioner under his self cultivation in both mohals i.e. Mohal Upahu and Jhikli Dari on the appointed day and there after order resumption to the petitioner to make up his deficiency, if any, to the permissible limit from all the tenants proportionately in mohal Jhikli Dari, keeping in view the land held by the tenants as per the law. 12. Announced in open Court today the 22nd November, 2013 at Dharamshala. The. 12. Announced in open Court today the 22nd November, 2013 at Dharamshala. The. records of the Courts below be returned and the file of this Court be consigned to the record room after due completion.