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2014 DIGILAW 130 (HP)

Narinder Yadav v. State Of Himachal Pradesh

2014-02-26

NARINDER CHAUHAN

body2014
ORDER : Narinder Chauhan, Financial Commissioner This revision petition has been filed against the orders of Divisional Commissioner, Shimla, who in revenue appeal No. 128/2006 vide order dated 25.04.2008, upheld the orders of Collector Solan, who in case No. 51/13 of 1997, orders dated 17.04.2006, under Section 118 (3) (d) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, wherein land bearing khasra No. 629/1 measuring 0.2 bigha and khasra No. 940/630/1 measuring 0.8 bigha, total 0.10 bigha, situated in mauza Gahi, Tehsil Kasauli, District Solan, was ordered to be vested in favour of the State Government free from all encumbrances on the grounds of violation of Section 118 (1) of the 1972 Act. 2. The brief facts of the case are that the Tehsildar Kasauli, had sent a report dated 7.6.1994, alongwith relevant papers to the District Collector, Solan stating therein that Sh. Arun Jain resident of House No. 3237, Sector 21-D, Chandigarh has constructed a house on land comprising khasra No. 629/1 measuring 0-2 bigha and khasra No. 940/630/1 measuring 0-8 bigha kitas 2 total measuring 0-10 bigha situated in Mauja Gahi, Tehsil Kasauli, District Solan. That Sh. Durga Ram and Smt. Kanta Devi proforma respondents No. 2 and 3 respectively were the owners of this land and Sh, Arun Jain proforma respondent No. 4, who is a non-agriculturist and non Himachali, had constructed the house without the prior permission of State Government in utter violation of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The Additional Deputy Commissioner, Solan who was also exercising the powers of Collector, Solan started proceeding against the proforma respondents and confiscated the property in favour of the State. The Commissioner, Shimla Division, vide his order dated 25.03.1997, set aside the proceeding conducted by the Collector (ADM) Solan on the basis that the Collector (A.D.M.) has no jurisdiction to conduct the proceedings under Section 118 (3) (b) of the Act and directed Collector Solan, to conduct an enquiry afresh. 3. The Commissioner, Shimla Division, vide his order dated 25.03.1997, set aside the proceeding conducted by the Collector (ADM) Solan on the basis that the Collector (A.D.M.) has no jurisdiction to conduct the proceedings under Section 118 (3) (b) of the Act and directed Collector Solan, to conduct an enquiry afresh. 3. The lower Court after examination of witnesses and documentary evidence placed before it arrived at the conclusion that there had been clear violation of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and confiscated the land bearing Khasra No. 629/1 measuring 0-2 bighas and Khasra No. 940/630/1 measuring 0-8 bigha total 0-10 bighas situated in Mauja Gahi, Tehsii Kasauli, District Solan, Himachal Pradesh to the State of Himachal Pradesh. The appeal filed by the petitioner before Ld. Divisional Commissioner Shimla, was also dismissed, hence the present revision 4. Advocate for petitioner has argued that the orders of Ld. Divisional Commissioner dated 25.04.2008, are based on surmises and conjecture, and there is insufficient material on record to presume that a benami transaction has taken place that there has been non- application of mind. That the proforma respondents No. 4, was not associated with the enquiry, and proper material was not gathered either during the preliminary enquiry or even during the regular inquiry. That the inference drawn that the alleged property is a benami property owned by Sh. Arun Jain and the sister, is in sharp contrast to the revenue record wherein under Section 45 of the Himachal Pradesh Land Revenue Act, 1954, a presumption of truth is attached to the revenue entries which are in favour of petitioners and reliance has simply been placed on the fact that Sh. Nand Lal, predecessor in interest of the petitioners could not furnish any bills of material consumed or proof of income for the construction of house and the inquiry report and statement of PW-4 Sh. Sanjay Sharma, A.C. Parwanoo, who has stated that the building was funded by Sh. Arun Jain, proforma respondent No. 4, cannot be relied upon. It has been further argued that even if the statement is true, mere availing of a loan from Sh. Arun Jain, does not tantamount to proof of benami transaction and that the whole issue of the transaction being a benami transaction has to be examined as per the Benami Transactions (Prohibition) Act, 1988. It has been further argued that even if the statement is true, mere availing of a loan from Sh. Arun Jain, does not tantamount to proof of benami transaction and that the whole issue of the transaction being a benami transaction has to be examined as per the Benami Transactions (Prohibition) Act, 1988. It has thus been argued that absolute reliance by the revenue Authorities on the statement of the prosecution witnesses cannot be the sole basis for concluding a violation of Section 118, and that the petitioners being Himachali and agriculturist are within their right to purchase the land. Purchase by Sh. Nand Lal, cannot be termed as a benami purchase. 5. Sh. Giri Raj Singh, Dy. D.A. on behalf of State has argued that the clinching evidence of the transaction being a benami transaction is that Sh. Durga Ram and Smt. Kanta Devi, has transferred the land to Sh. Nand Lal, only once proceedings under the Act were initiated, and with a view to circumvent the provision of law. Further that the predecessor in interest of the petitioners, Sh. Nand Lal, has not submitted any evidence of the material purchased/procured or income details etc. as to how he was getting the construction done and further that the report of the Tehsildar Kasauli dated 07.06.1994, clearly establishes the facts that Sh. Arun Jain, is constructing the house on the land of Smt. Kanta Devi and Sh. Durga Ram, and Sh. Arun Jain, being a non-Himachali and non-agriculturist the penal action as envisaged has rightly been taken. 6. On appreciation of the arguments and evidence on record, it transpires that PW-1, Sh. Ruldu Ram, Field Kanungo, and PW-2 Sh. Dhian Singh, Patwari have admitted that the report of a suspected benami transaction was made by them during May, 1994, and as per their statement the seller Sh. Durga Ram, has stated before the Patwari that he had initially sold land to Sh. Arun Jain. Further, PW-2 have also admitted that he does not personally know Sh. Arun Jain. PW-3 the then Tehsildar Kasauli, Sh. B.R. Kaundal, has admitted that a report of alleged benami transaction was forwarded by him to the Collector, Solan. Similarly, PW-4, Sh. Sanjay Sharma, A.C. Parwanoo, has in his statement dated 15.09.2001, stated that the land was purchased by Sh. Further, PW-2 have also admitted that he does not personally know Sh. Arun Jain. PW-3 the then Tehsildar Kasauli, Sh. B.R. Kaundal, has admitted that a report of alleged benami transaction was forwarded by him to the Collector, Solan. Similarly, PW-4, Sh. Sanjay Sharma, A.C. Parwanoo, has in his statement dated 15.09.2001, stated that the land was purchased by Sh. Nand Lai, predecessor in interest of the petitioner through the General Power Attorney issued in favour of Sh. Dile Ram, husband of Smt. Kanta Devi, and the said land was purchased from Smt. Kanta Devi, and as per his enquiry the building is being constructed with funding received from Sh. Arun Jain, proforma respondent No. 4. The construction of a house in favour of Sh. Arun Jain, is further corroborated in his report which has been signed by revenue officials and nambardar etc. Statement of PW-4, further reveals that Sh. Nand Lal, categorically admitted that after his death the building would be inherited by proforma respondent No. 4, Sh. Mrun Jain. PW-4, had done a spot inspection on 28.01.2000, and the report mentions that the house seemed 8 to 10 year old and involves an expenditure of close to 8 to 10 lac rupees. 7. Similarly, PW-5, Sh. Dile Ram has stated that Smt. Kanta Devi, is his wife and Sh. Arun Jain and his wife had entered into an agreement of sale of nine biswas of land and an advance of Rs. 5000/- was paid. However, the land registration could not be done in favour of Sh. Arun Jain, he being a non agriculturist and a non Himachali, the registry was done in favour of Sh. Nand Lal. PW-5, has further stated that Sh. Arun Jain, has further sold the property to a 3rd party. PW-6, Nambardar, Sh. Yogesh Attri, has also stated that Smt. Kanta Devi, has sold the land to Sh. Nand Lal. PW-7, Sh. Nand Lal in his statement on 26.01.2005, has admitted to purchase of the land from Smt. Kanta Devi and Sh. Durga Singh, whereas in his statement dated 5.10.2002, he denied any purchase of land or construction in Village Gahi, Kasauli. 8. On appreciation of the statements made by all the witnesses that the building was being constructed and funded by Sh. Durga Singh, whereas in his statement dated 5.10.2002, he denied any purchase of land or construction in Village Gahi, Kasauli. 8. On appreciation of the statements made by all the witnesses that the building was being constructed and funded by Sh. Arun Jain, who was a non-Himachali and non agriculturist, it has been proved on record that during the pendency of proceedings initiated by Collector, Solan, under Section 118 (3) (b), the land was sold to Sh. Nand Lal S/o Sh. Dhian Ram, vide sale deed No. 275 dated 29.08.1995, for a consideration of Rs. 40,000/ -whereas proceedings under Section 118 had been initiated on 15.06.1994, and notices etc. issued to all the parties. The transaction, therefore, was an afterthought and aimed only with the view to defeating the proceedings initiated by Collector, Solan. 9. Husband of the seller Smt. Kanta Devi, has also state a that the land was sold to Sh. Arun Jain and an amount of Rs. 5,000/- was paid. No source of funding for the house or vouchers of material were produced by Sh. Nand Lai. Infact Sh. Nand Lal, in his statement has admitted that electricity meter is in the name of Smt. Kanta Devi. Therefore, if land was sold by Smt. Kanta Devi, it is strange that an electric meter continues to be in her name. Sh. Nand Lal, has stated before PW-4, that after his demise the property would be mutated in favour of Sh. Arun Jain. Sh. Nand Lal has thus admitted the name of the real beneficiary and considering that proceedings were initiated on 7.6.1994, but sale deed was entered on 29.8.1995, only, I have no hesitation to accept the report of Tehsildar Kasauli and also the orders of revenue Authorities, as land was transferred by the proforma respondent during the pendency of the case to escape the provisions of law, and proceedings under Section 118, which had been initiated. Therefore, the revision is dismissed and order of Ld, Commissioner dated 25.04.2008 are upheld. 10. Orders be communicated to the parties. The record of the Courts below be returned and the file of this Court be consigned to the record room after due completion.