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Himachal Pradesh High Court · body

2015 DIGILAW 1717 (HP)

JAGDEV SINGH v. STATE OF HIMACHAL PRADESH

2015-11-23

NARINDER CHAUHAN

body2015
ORDER : 1. This revision petition under section 118 (8-C) of the H.P. Tenancy and Land Reforms Act 1972 (hereinafter referred to as 'the Act') has been preferred against the orders dated 28.5.2013 passed by the Collector, District Una, whereby the Ld. Collector has dismissed case No.9/2011 registered under section 118 of the Act on the complaint of the present petitioner. 2. Brief facts of the case as gathered from the record are that a complaint dated 8.6.2010, was preferred by the present petitioner before the Collector, District Una, alleging therein that the respondent No.2 and 6, both non-agriculturists have purchased land in the State of H.P in their own name, in the names of their family members and by constituting a committee. On receipt of the aforesaid complaint a case No.9/2011 was instituted by the Collector, District Una on 23.11.2011 and after getting the matter inquired into by the Tehsildar Amb, the same has been dismissed. 3. I have heard the Ld. Counsel for the petitioner, respondents No. 2 to 6 and the District Attorney (Revenue) appeared on behalf of the respondent No.1 i.e. State of H.P. The Ld. Counsel for the petitioner reiterated the plea taken in the petition and argued that respondent No.2, a religious society registered under the Societies Registration Act, 1860, not having agriculture as its primary or even secondary objective, can by no stretch of imagination be covered under the definition term "Agriculturist" under the Act. That the respondent No.3, who is president of respondent No.2 (Society), belongs to Jammu and Kashmir, has also been granted status of agriculturist in the State of H.P. by virtue of a "will" dated 9th June 1993, executed in his favour by one Shri Labh Singh son of Shri Narian, r/o VPO Mairhi, Tehsil Amb, District Una, who died on 2.6.1998 and mutation No.2628 was attested in favour of the respondent No.3 on 19.12.2000. He further argued that similarly, respondent No.4 and 5 who are sons of respondent No. 3 have also been granted status of agriculturists by virtue of "Will" dated 30.09.1994, executed on Sh. Rania Ram (Alias Rann Singh) son of Sh. Suwa vide mutation No.2405 attested on 14.2.1995. The petitioner has appended both the "Wills" and mutations as Annexure P1, P2, P4 and P5, respectively. The Ld. Rania Ram (Alias Rann Singh) son of Sh. Suwa vide mutation No.2405 attested on 14.2.1995. The petitioner has appended both the "Wills" and mutations as Annexure P1, P2, P4 and P5, respectively. The Ld. Counsel for the petitioner has argued that both the aforesaid transactions are in contravention to the provisions of Section 118 as this section prohibits transfer of land in favour of non agriculturist by way of "Will" also and as such the same are illegal ab initio and status of agriculturist granted in favour of respondents No. 2 to 6 are illegal and void ab initio and are liable to be set aside. Lastly, the Ld. Counsel has urged that the Court below has erred in not appreciating the evidence in its true and proper perspective and has also mis-interpreted the law applicable to the facts, hence the order dated 28.05.2013, is liable to be set aside and the land in question may be ordered to be vested in the State in accordance with the provisions of the Act. 4. In written arguments submitted by the Ld. Counsel for the respondents No.2 to 6, preliminary objections have been raised regarding maintainability, locus-standi of the petition and mis-joinder & Non-joinder of parties. It has been stated that the petitioner has straightway approached this Court without filing an appeal before the Divisional Commissioner; that petitioner has no cause of action to file and maintain the present revision petition; and that the respondents No.2, 4 and 6 were never made party before the Deputy Commissioner, Una. It has been submitted that the respondents are Himachali Agriculturist and the competent authorities have issued the Agriculturist Certificates in favour of respondents and till date there is no notice of the violation against any of the respondents and it is only the petitioner who is in rivalry with the respondents dragging them in unwarranted litigation, on one pretext or another. It has further been submitted that detailed inquiry has been conducted by the field revenue staff and the report has been accepted by the SDO (Civil) as well as the Deputy Commissioner, Una and as such no violation, as alleged has been found in the case of the respondents. It has further been submitted that detailed inquiry has been conducted by the field revenue staff and the report has been accepted by the SDO (Civil) as well as the Deputy Commissioner, Una and as such no violation, as alleged has been found in the case of the respondents. It has also been submitted that the respondents have become Himachali Agriculturist much prior to 4.4.1995, when the Act No. 6 of 1995 came into existence by publication in Rajpatra on 4.4.1995 whereby the transfer by way of will was barred to non-agriculturist Himachali. It has further been added that the necessary certificates in that regard, have been issued by the competent authorities, in favour of the respondents. Therefore, it has been urged to dismiss the present revision petition in view of the forgoing submissions. 5. The Ld. District Attorney (Revenue) appearing on behalf of respondent State argued that the present revision petition is riot maintainable and the petitioner should have challenged the impugned orders, before the Commissioner. He further, argued that the State of H.P. has been arrayed as a party unnecessarily. 6. I have considered the arguments advanced by the Ld. Counsels for parties and carefully gone through the contents of revision petition and record of courts below. At the outset it would be appropriate to consider and decide the preliminary objections raised by the respondents qua maintainability, locus-standi and mis-joinder & Non-joinder of pai For the issue of maintainability, it is appropriate to go-through the provisions of section 118 (3-B) & (3-C) of the Act, reproduced below:- "(3-B) the person aggrieved by the findings recorded by the Collector that a particular transfer of land is in contravention of the provisions of sub-section (1), may within a period of 30 days from the date on which the order recording such findings is made by the Collector or such longer period as the Divisional Commissioner may below for reasons to be recorded in writing file an appeal to the Division Commissioner, to whom such Collector is subordinate, and the Divisional Commissioner may, after giving the parties an opportunity of being heard of the case from the Collector reverse, alter or confirm the order made by the Collector and the order made by the Divisional Commissioner shall be final and conclusive. (3-C) (a) The Financial commissioner may, either on a report of a Revenue Officer or on an application or of his own motion, call for the record of any proceedings which are pending before, or have been disposed of by, any Revenue Officer subordinate to him and in which no appeal lies thereto, for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein and may pass such order in relation thereto as he may think fit. (b) No order shall be passed under this sub-section which adversely effects any person unless such person has been given a reasonable opportunity of being heard;" From bare reading of aforesaid provisions, it is clear that this court has the powers to call for the record of any proceedings which are pending before or have been disposed of by any Revenue Officer subordinate to him in which, no appeal lies thereto, for the purpose of satisfying himself as to the legality and propriety of such proceedings. In the instant case the Collector, District Una, has dismissed the complaint and has not passed any order declaring a particular transaction in contravention of the provisions of sub-section (1) of Section 118 of the Act, and as such there is no provision to file an appeal in such eventuality. The provision of appeal is available to the person against whom vestment orders are passed by the Collector of the District. In view of above discussion, the present appeal is maintainable before this Court." 7. So far as the issue of locus-standi and mis-joinder of parties are concerned, these are not of much importance. Moreover, it is the duty of each and every citizen to bring to the notice of the competent authority, if any illegality comes to her/his knowledge Further, the issue of mis-joinder or non-joinder of parties have not caused any prejudice to them (present respondent No. 2, 4 to 6), as no order has been passed against them by the Collector, and they have been provided opportunity of being heard at this stage in order to follow the principle of Audi Alterm Partam. 8. 8. On merit, the perusal of record of the court of Collector, District Una shows that the matter has not been inquired into thoroughly keeping in view the provisions of Section 18 of the Act at the time of transfer of land by way of "will" i.e. on the dates of mutations. From the perusal of mutation No.2405 finally attested on 14.9.1995, it is not clear as to what was the status (agriculturist or non-agriculturist) of testator at the time of attestation of mutation. Although the AC 1nd Grade has sought advice/clarification from the Collector, before attesting me mutation, but the advice tendered (as recorded in the mutation order) by the Collector appears contrary to the provisions of Section 118 as amended on 4.4.1995, because it is not the date of execution of "Will", but it is the date of transfer of land in pursuance of such "Will" which is relevant for the purpose of Act. Similarly, the land has been transferred to respondent No.3 in the year 2000 (mutation No.2628 dated 19.12.2000) by way of "Will" of Sh Labh Singh son of Sh. Narian, in which it is also not clear as to whether respondent No. 3 was an agriculturist or not. Further, the Collector, District Una while dismissing the complaint of present petitioner vide impugned order, has relied upon the "agriculturist certificate" issued by Tehsildar, Amb on 30.4.2013, whereas the status of individuals (respondent No.4 & 5) are required to be seen at the time, when mutations were attested way back in the year, 1995. Now, three important questions are still unanswered; first as to what was the status of respondent No.2 at the time of enactment of H.P. Tenancy and Land Reforms Act, 1972; second, whether all the constituent of respondent No.2 (society) were agriculturists at the time of enactment of the principal Act or otherwise; and third, as to whether the individuals are agriculturists in their own capacity or being a constituent of the society. Hence, in my opinion these important questions/issues are required to be examined thoroughly by the Collector while adjudicating such issues. However in order to understand the intention of the legislature in its right perspective, it is imperative to go through the "Statement of Objects and Reasons" behind the H.P. Tenancy and Land Reforms (Amendment) Act, 1994 vide which transfer of land to non-agriculturist, by way of "will" has been barred. However in order to understand the intention of the legislature in its right perspective, it is imperative to go through the "Statement of Objects and Reasons" behind the H.P. Tenancy and Land Reforms (Amendment) Act, 1994 vide which transfer of land to non-agriculturist, by way of "will" has been barred. The relevant portion of statement is reproduced as under: "Under section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No.8 of 1974 the transfer of land by an agriculturist in favour of a non-agriculturist can only be made for a specific purpose with the prior permission of the State Government. It has been observed that some non-agriculturists have devised new methods, like execution of power-of-attorney, Will agreement, benami transaction and procuring collusive decrees from civil courts, to circumvent the said provisions....... XXXXXX With a view to do away with the said loopholes/shortcomings in the existing provisions it has become necessary to make suitable amendments in the Act...." From the perusal of aforesaid statement, it is clear that there was a complete bar on transfer of land in favour of non-agriculturist except with prior permission of the State Government for some specific purposes. In the instant case the transfer of land appears in contravention to the spirit of the Act. Moreover, from the perusal of first proviso below sub-section (2) of section 118 of the Act, added in the year, 1988, retrospectively (from the date of commencement of the Principal Act), it is clear that the non-agriculturists who acquire land in the State after common-cement of Act, even with the permission of the State Government will not be allowed to acquire the status of "Agriculturist" by such acquisition of land through one way or other. 9. Keeping in view of the foregoing observations, I am of the view that the present revision petition deserves to be allowed and the impugned order of the Collector, District Una dated 28.5.2013, are set aside. The case is remanded to the Collector, District Una to consider the matter afresh and decide the above mentioned issues in accordance with the law after providing an opportunity of being heard to all the interested parties. 10. Order be communicated to parties. Record of the court below be returned and file of this court be consigned to the record room after due completion.