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2015 DIGILAW 1803 (HP)

DESH RAJ v. ATULESH KUMAR

2015-12-04

NARINDER CHAUHAN

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ORDER : 1. The revision petition under section 114 of the H.P. Tenancy & Land Reforms Act, 1972, is directed against the order dated 16-04-2010 passed by the Commissioner, Kangra Division in Appeal No. 329/2003, whereby the Ld. Commissioner has dismissed the appeal of the present petitioners by upholding the orders of the courts below. 2. Briefly stated the facts of the case are that Shri Gian Chand predecessor-in-interest of the present respondents had filed Form LR-V before the Land Reforms Officer (Tehsildar), Kangra on 26.11.1975, for resumption of land from the tenants, situated in mauza Niyanda, Olaheri, Sunehar, Panthehar, Jalbimbi and Nagrota Bagwan. After conducting due process of law, the LRO), vide order dated 8.6.1998, allowed resumption of shares of land from each tenant under him in the aforesaid revenue estates. 3. Feeling aggrieved with this order, the petitioners filed an appeal no. 77/2000 before the Collector, Distt. Kangra on 25.05.1999 after a period of one year mainly on the grounds that they were condemned unheard and they have not been served by the court below and also not afforded due opportunity to defend the case; that the court below has arbitrarily passed the impugned order and intentionally and deliberately resumed the land including the land under personal cultivation measuring 02-14-06 hectares whereas the respondent is not entitled to resume the land more than the prescribed limit. The Ld. Collector, after going through the record and hearing the parties, dismissed the appeal vide order dated 15.9.2003, on limitation 4. Thereafter, the present petitioners filed second appeal, (which was not maintainable) before the Commissioner. Kangra Division, who wrongly entertained the same being second appeal and upheld the order of the courts below and dismissed the appeal vide the impugned order. Hence, this revision petition. 5. During the pendency of the revision petition, respondent no. 2 expired, therefore, his legal heirs have been brought on record as per CMA No. 38/2011. 6. Apart from the ground of condemning unheard, the petitioners contention is that the lower court has simply rejected the appeal on the ground of limitation without touching the merits of the case whereas the court below has specifically written in the order that the land measuring 57 kanals (2-14-06 hectares) was resumed in favour of the respondents excluding the land under self cultivation of respondents. It has also been alleged that the LFO, has passed the order against the dead person and is against the principle of natural justice. The Ld. counsel has further argued that the appeal before the Collector was within time from the date of knowledge after deducting the days spent for obtaining the copy of impugned order, moreover, the impugned order of LRO, Kangra is against the provisions of the H.P. Tenancy & Land Reforms Act, 1972 and the same is void ab initio, and as such, no limitation will start against the void order and same can be challenged at any time. In support of his contention regarding condonation of delay, the Ld. counsel has cited the case State of H.P. v. Hoshiar Singh, 1997 (2) SLJ 1593 and Geeta Ram v. Bhoi Raj & Ors. 2007 (2) SLJ (FC-HP) 844, In view of the above submissions, the Ld. counsel has prayed that the revision petition may be accepted and the matter is liable to be remanded to the LRO for fresh decision after offering due opportunity of being heard. 7. In reply, the Ld. counsel for the respondents argued that the Ld. Collector (ADM), Kangra has discussed all the points raised by the petitioners and due opportunity has been provided to the petitioners; that even after obtaining the copy of order of the LRO, the petitioners have failed to file appeal within a period of one month. He further added that Ld. Divisional Commissioner, in para-3 of the impugned order has already made it clear that the resumed land is within the prescribed limit. Lastly, Ld. counsel stated that there is no impropriety in the orders passed by the courts below and the same deserve to be upheld and the revision petition is liable to be dismissed. 8. I have considered the arguments advanced by the Ld. counsel for both the parties and carefully gone through the record of the courts below. On perusal of the case file of LRO, Kangra, it transpires that the predecessor-in-interest of present respondents no 13 to 22 and original respondent - no. 24, 27 have neither been informed about the proceedings on LR-V Form nor been represented through their authorised agents etc. The Ld. On perusal of the case file of LRO, Kangra, it transpires that the predecessor-in-interest of present respondents no 13 to 22 and original respondent - no. 24, 27 have neither been informed about the proceedings on LR-V Form nor been represented through their authorised agents etc. The Ld. Collector, in his order has, wrongly observed that they were served and remained present before the LRO since 1987 to 29.5.1998, their statements were recorded and they have raised no objections for the resumption of land. But, there in nothing on record to supplement the above observations of the Ld. Collector. Therefore, the contention of the petitioners that they were condemned unheard appears to be correct. This solely appears to be a sufficient reason to condone the delay in filing appeal before the Collector. Further, the perusal of order of the LRO, Kangra dated 8.6.1998, clearly shows that the LRO, has ordered resumption of land up to the share from each tenant in every revenue estates i.e. mauza Niyanda, Olaheri, Sunehar, Panthehar, Jalbimbi and Nagrota Bagwan, total of which appears more than the limit prescribed in Section 104 of the Act ibid. From the perusal of the Form LR-V and other attached documents in the file of LRO, it reveals that the landowner did not fill in protected categories under section 104(8)C) & (d) of the Act, and as such as per the provisions of Sub-Section(1)(i) of Section 104 of the Act ibid, he was entitled to resume either one and a half acre of irrigated land or three acres of un-irrigated land under the tenancy from one or more than one tenants, for his personal cultivation. But contrary to this, the LRO has ordered to resume 2-14-06 hectares of land that too without description of irrigated or un-irrigated, which is a clear cut violation of the provisions of the Act. On limitation, the Honble Supreme Court in case Collector Land Acquisition Anantnag v. Mst. Katiji, AIR 1987 SC 1353 while laying down broad guidelines in the matter of considering the application under section 5 of the Indian Limitation Act, held that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. 9. Katiji, AIR 1987 SC 1353 while laying down broad guidelines in the matter of considering the application under section 5 of the Indian Limitation Act, held that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. 9. In view of the illegality/irregularity in implementation of the provisions of Act and procedural lapse by not providing reasonable opportunity of being heard to all the interested parties, on behalf of LRO, as discussed above, which has further been overlooked by the Collector as well as the Commissioner in appeals, I am of the view that there was sufficient reason to allow the appeal and decide the same on merits instead of disposing the matter on grounds of limitation alone, and as such, the orders passed by all the courts below are set aside. Accordingly, the present revision is allowed and the matter is remitted to the LRO, Kangra to examine and decide the matter afresh in accordance with the provisions of the H.R Tenancy & Land Reforms Act, 1972 and Rules framed thereunder, after affording due opportunity of being heard to all the interested parties. 10. Announced in open court today the 4th December, 2015 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.