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2014 DIGILAW 1658 (HP)

Sunil Singh v. State of H. P.

2014-11-17

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. Since common questions of law and facts are involved in these petitions, these are taken up together for being disposed of by a common judgment. However, in order to maintain clarity, the facts of each petition have been considered separately. CWP No. 6735 of 2014. 2. The Assistant Collector Ist Grade, Shahpur, District Kangra on 28.3.2001 conferred proprietary rights in favour of respondents No. 4 to 7 vide Annexure P-3, mutation No. 352. The petitioner filed an appeal before the Collector bearing appeal No. 34 of 2001. The appeal was dismissed by the Collector on 6.8.2003. The petitioner filed an appeal before the learned Divisional Commissioner bearing appeal No. 278 of 2003 against the order dated 6.8.2003. The Divisional Commissioner Kangra at Dharamshala accepted the appeal on 20.3.2006. Respondents No. 4 to 7 filed the revision before the Financial Commissioner bearing No. 145 of 2006. The learned Financial Commissioner allowed the revision on 14.1.2009 and the order passed by the Divisional Commissioner on 20.3.2006 was set aside. The petitioner assailed the order dated 14.1.2009 by filing CWP No. 1329 of 2009. It was decided by the learned Single Judge of this Court on 22.4.2013. The order dated 14.1.2009 was set aside. The Financial Commissioner (Appeals), was directed to decide the matter afresh within three months. The Financial Commissioner (Appeals), decided the revision alongwith the analogous matters on 15.7.2014. The learned Financial Commissioner (Appeals) held that his predecessor has rightly set aside the order passed by the learned Commissioner, Kangra dated 20.3.2006. The revision petitions were accepted and order dated 28.5.2001 of the learned A.C. Ist Grade, conferring proprietary rights on the tenants was found to be in accordance with law vide order dated 15.7.2014. CWP No. 6736 of 2014. 3. The Assistant Collector Ist Grade, Shahpur, District Kangra on 28.3.2001 conferred proprietary rights in favour of the respondents No. 4 & 5. The petitioner filed an appeal before the Collector bearing appeal No. 30 of 2001. The appeal was dismissed by the Collector on 6.8.2003. The petitioner filed an appeal before the learned Divisional Commissioner bearing appeal No. 275 of 2003 against the order dated 6.8.2003. The Divisional Commissioner Kangra at Dharamshala accepted the appeal on 20.3.2006. Respondents No. 4 & 5 filed the revision before the Financial Commissioner bearing No. 142 of 2006. The learned Financial Commissioner allowed the revision on 14.1.2009. The petitioner filed an appeal before the learned Divisional Commissioner bearing appeal No. 275 of 2003 against the order dated 6.8.2003. The Divisional Commissioner Kangra at Dharamshala accepted the appeal on 20.3.2006. Respondents No. 4 & 5 filed the revision before the Financial Commissioner bearing No. 142 of 2006. The learned Financial Commissioner allowed the revision on 14.1.2009. The petitioner challenged the order dated 14.1.2009 by filing CWP No. 1302 of 2009. It was decided by the learned Single Judge of this Court on 22.4.2013. The order dated 14.1.2009 was set aside. The Financial Commissioner (Appeals), was directed to decide the matter afresh within three months. The Financial Commissioner (Appeals), decided the revision alongwith the analogous matters on 15.7.2014. The learned Financial Commissioner (Appeals) held that his predecessor has rightly set aside the order passed by the learned Commissioner, Kangra dated 20.3.2006. The revision petitions were accepted and order dated 28.5.2001 of the learned A.C. Ist Grade, was upheld. CWP No. 6743 of 2014. 4. Proprietary rights were conferred upon the private respondents and predecessor-in-interest by the Assistant Collector Ist Grade, Shahpur, District Kangra vide order dated 28.3.2001. The petitioner filed an appeal against the conferment of proprietary rights on the private respondents bearing appeal No. 31 of 2001. The appeal was dismissed by the Collector on 6.8.2003. The petitioner filed an appeal before the learned Divisional Commissioner bearing appeal No. 276 of 2003 against the order dated 6.8.2003. The Divisional Commissioner Kangra at Dharamshala accepted the appeal on 20.3.2006. The private respondents filed the revision before the Financial Commissioner bearing No. 143 of 2006. The learned Financial Commissioner allowed the revision on 14.1.2009. The petitioner challenged the order dated 14.1.2009 by filing CWP No. 1330 of 2009. It was decided by the learned Single Judge of this Court on 22.4.2013. The order dated 14.1.2009 was set aside. The Financial Commissioner (Appeals), was directed to decide the matter afresh within three months. The Financial Commissioner (Appeals), decided the revision alongwith the analogous matters on 15.7.2014. CWP No. 6768 of 2014. 5. Proprietary rights were conferred upon respondent No.4 by the Assistant Collector Ist Grade, Shahpur, District Kangra vide order dated 28.3.2001. The petitioner filed an appeal against the conferment of proprietary rights bearing No. 33 of 2001. The appeal was dismissed by the Collector on 6.8.2003. CWP No. 6768 of 2014. 5. Proprietary rights were conferred upon respondent No.4 by the Assistant Collector Ist Grade, Shahpur, District Kangra vide order dated 28.3.2001. The petitioner filed an appeal against the conferment of proprietary rights bearing No. 33 of 2001. The appeal was dismissed by the Collector on 6.8.2003. The petitioner filed an appeal before the learned Divisional Commissioner bearing appeal No. 277 of 2003 against the order dated 6.8.2003. The Divisional Commissioner Kangra at Dharamshala accepted the appeal on 20.3.2006. The private respondent No.4 filed the revision before the Financial Commissioner bearing No. 144 of 2006. The learned Financial Commissioner allowed the revision on 14.1.2009. The petitioner challenged the order dated 14.1.2009 by filing CWP No. 1328 of 2009. It was decided by the learned Single Judge of this Court on 22.4.2013. The order dated 14.1.2009 was set aside. The Financial Commissioner (Appeals), was directed to decide the matter afresh within three months. The Financial Commissioner (Appeals), decided the revision alongwith the analogous matters on 15.7.2014. The earlier order passed by the Financial Commissioner (Appeals) on 14.1.2009 was upheld. CWP No. 6770 of 2014. 6. Proprietary rights were conferred upon respondents No.4 to 7 by the Assistant Collector Ist Grade, Shahpur, District Kangra vide order dated 28.3.2001. The petitioner filed an appeal against the conferment of proprietary rights bearing No. 32 of 2001. The appeal was dismissed by the Collector on 6.8.2003. The petitioner filed an appeal before the learned Divisional Commissioner bearing appeal No. 274 of 2003 against the order dated 6.8.2003. The Divisional Commissioner Kangra at Dharamshala accepted the appeal on 20.3.2006. The private respondent No.4 filed the revision before the Financial Commissioner bearing No. 141 of 2006. The learned Financial Commissioner allowed the revision on 14.1.2009. The petitioner challenged the order dated 14.1.2009 by filing CWP No. 1302 of 2009. It was decided by the learned Single Judge of this Court on 22.4.2013. The order dated 14.1.2009 was set aside. The Financial Commissioner (Appeals), was directed to decide the matter afresh within three months. The Financial Commissioner (Appeals), decided the revision alongwith the analogous matters on 15.7.2014. The earlier order passed by the Financial Commissioner (Appeals) on 14.1.2009 was upheld. 7. Mr. B.S.Attri, Advocate, for the petitioners has vehemently argued that the proprietary rights could not be conferred upon the private respondents. The Financial Commissioner (Appeals), decided the revision alongwith the analogous matters on 15.7.2014. The earlier order passed by the Financial Commissioner (Appeals) on 14.1.2009 was upheld. 7. Mr. B.S.Attri, Advocate, for the petitioners has vehemently argued that the proprietary rights could not be conferred upon the private respondents. According to him, Phoolan Devi has executed 'Will’ dated 28.9.2000 in favour of his client. He also contended that his client was in the armed forces and was minor when the 'Will’ was executed. On the other hand, Mr. Ashok Chaudhary, learned Addl. Advocate General has supported the order passed by the learned Financial Commissioner (Appeals) passed on 15.7.2014. According to him, the widow has only limited right till her death. He also contended that the proprietary rights could not be conferred by way of 'Will’ dated 28.9.2000. Mr. V.S.Rathore, Advocate, appearing for the private respondents has also supported the orders of the Financial Commissioner (Appeals) dated 15.7.2014. 8. We have heard the learned counsel for the parties and also gone through the orders very carefully. 9. The private respondents and their predecessor-in-interest were tenants of one Sh. Kirpa Ram. Late Sh. Kirpa Ram died issueless. The entire property was inherited by his widow Smt. Phoolan Devi. She executed a 'Will’ dated 28.9.2000 in favour of the petitioner. The private respondents were conferred proprietary rights qua the entire land under their tenancy and the mutations No. 350, 351, 352, 354 and 355 were attested in their favour on 28.3.2001. The petitioner has challenged the orders whereby the proprietary rights were conferred upon the private respondents before the Collector. The Collector has dismissed the appeals on 6.8.2003. The petitioner challenged the order dated 6.8.2003 before the Divisional Commissioner, Kangra at Dharamshala, by filing appeals. The appeals were allowed by the Divisional Commissioner, Kangra Division Kangra on 20.3.2006. The private respondents have challenged the order dated 20.3.2006 rendered in appeals preferred by the petitioner before the Financial Commissioner. The learned Financial Commissioner vide a detailed order dated 14.1.2009 set aside the order passed by the Divisional Commissioner, Kangra Division Kangra in appeal No. 145 of 2006 and analogous appeals. The petitioner challenged the order passed by the Financial Commissioner dated 14.1.2009, as noticed by us hereinabove, before this Court. The learned Single Judge of this Court remanded the matter to the Financial Commissioner (Appeals). The petitioner challenged the order passed by the Financial Commissioner dated 14.1.2009, as noticed by us hereinabove, before this Court. The learned Single Judge of this Court remanded the matter to the Financial Commissioner (Appeals). The Financial Commissioner (Appeals) reiterated the earlier order dated 14.1.2009 of the Financial Commissioner (Appeals). 10. Section 104 (8) and (9) of the H.P. Tenancy and Land Reforms Act, 1972 reads as under: “104. Right of tenant other than occupancy tenant to acquire interests of landowner. (8)- Save as otherwise provided in sub-section (9), nothing contained in sub-section (1) to (6) shall apply to a tenancy of landowner owner during the period mentioned for each category of such landowners in sub-section (9), who,- (a) is a minor or unmarried woman, or if married, divorced or separated from husband or widow; or (b) is permanently incapable of cultivating land by reason of any physical or mental infirmity; or (c) is a serving member of the Armed Forces; or (d) is the father of the person who is serving in the Armed Forces, up to the extent of inheritable share of such a member of the Armed Forces on the date of his joining the Armed Forces, to be declared by his father in the prescribed manner. (9) In the case of landowners mentioned in clauses (a) to (d) of subsection (8), the provisions of sub-sections (1) to (6) shall not apply:- (a) in case of minor during his minority and in case of other persons mentioned in clauses (a) and (b) of sub-section (8) during their life time; (b) in case of persons mentioned in clauses (c) and (d) sub-section (8) the period of their service in the Armed Forces subject to resumption of land by such persons to the extent mentioned in first proviso to clauses (d) and (dd) of sub-section (1) of section 34. “Provided that nothing contained in this section shall apply to such land which is either owned by or is vested in Government under any law, whether before or after the commencement of this Act, and is leased out to any person.” 11. It is evident from the combined reading of sub-sections (8) and (9) of Section 104 that the widow has only limited right during her life time and thereafter the vestment/conferment of proprietary rights upon the tenants is automatic as per language of Section 104 (1)(iii) of the Act. It is evident from the combined reading of sub-sections (8) and (9) of Section 104 that the widow has only limited right during her life time and thereafter the vestment/conferment of proprietary rights upon the tenants is automatic as per language of Section 104 (1)(iii) of the Act. In the instant case(s), Sh. Kirpa Ram has died issueless. The widow of late Sh. Kirpa Ram has inherited his estate. She also died on 5.3.2001. The land of the widow could not be vested in favour of tenants during her life time. However, the proprietary rights were to be conferred upon the respondents immediately after the death of widow. The proprietary rights could not be conferred upon the petitioner on the basis of 'Will’ dated 28.9.2000. The H.P. Tenancy and Land Reforms Act, 1972 is an agrarian reform. The enactment has been made to confer ownership on the tillers. The rights of the private respondents could not be defeated by way of 'Will’ dated 28.9.2000. Rather, it would be against the public policy. Since the rights could not be conferred by Phoolan Devi on the petitioner at all on the basis of 'Will’ dated 28.9.2000, whether the petitioner was minor or member of armed forces would be of no consequence. The orders passed by the Financial Commissioner (Appeals) dated 14.1.2009 and 15.7.2014 are strictly in conformity with law. The Financial Commissioner has discussed the entire evidence and legal issues involved in the Revision petitions while setting aside the order dated 20.3.2006, passed by the Divisional Commissioner, Kangra, at Dharamshala. It is reiterated that Phoolan Devi could not alienate the land in favour of the petitioner by way of 'Will’ dated 28.9.2000 since she had the right to retain the land during her life time only as per law. 12. Mr. B.S.Attri, Advocate, for the petitioner has also argued that the petitioner was not heard at the time of attestation of mutations on 28.3.2001. The petitioner was not at all required to be heard at the time of attestation of the mutations since he has no legal right. The proprietary rights have rightly been conferred upon the private respondents vide mutations attested on 28.3.2001. 13. Accordingly, there is no merit in these petitions and the same are dismissed. Pending application(s), if any, shall also stand disposed of.