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2015 DIGILAW 78 (HP)

Sheel Chandra v. State Of H. P.

2015-01-25

NARINDER CHAUHAN

body2015
ORDER : Narinder Chauhan, I.A.S. The revision petition has been filed against the orders of Divisional Commissioner, Shimla, who in case No 32/2011, vide his order 12-01-2012, has upheld orders dated 01012-2010, passed by District Collector, Shimla in case No. 5/2007. 2. The brief facts of the case are that Sh. Nanak Chand s/o Sh. Charan Dass, purchased land from persons who were recorded in the possession column of the record of rights comprised in khasra No. 228 and 229, measuring 3.17 bigha in Mashobra. Land was purchased from Smt. Motia Devi (Pattadar) w/o Sh. Shambhu Nath, by way of a sale deed No. 417 dated 21.07.1979, the said land was mutated in favour of Sh. Nanak Chand, the purchaser (now deceased) vide mutation No. 237 dated 01/06/1980. 3. Similarly, vide sale deed No. 418 dated 21.7.1979, Smt. Sunanda Chandra, w/0 late Sh. Akhil Chandra, R/o Moon Villa, Shimla, had also purchased land comprised in khasra No. 225,226,227, kita-3 measuring 2.2. bigha in Mauza Mashobra, Tehsil & District Shimla from Smt. Motia Devi, (Pattadar) w/o Sh. Shambhu Nath and the mutation was attested in favour of the purchaser vide mutation No. 238 dated 01-06-1980. On a complaint being made to the office of the Hon'ble Chief Minister, Himachal Pradesh by one Sh. Lalit Singh Chandia, that a violation of section -118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, has occurred, as no agriculturist certificate has been found attached with the aforesaid sale deed. The collector issued show cause notices and also noted that on the demise of Sh. Nanak Chand, the legal heirs did not furnish agriculturist certificates. The Collector, Shimla in case No. 5/2007 vide his order dated 15-01-2008, hela as follows:- "It is prima facie proved on record that Sh. Nanak Chand was recorded owner of the land situated at Mauza Garli and Garli Khas, Tehsil Dchra, District Kangra. The respondents are the family members of Sh. Nanak Chand. The property in question was transferred by way of inheritance in favour of respondent No.1 and 3. The respondent No.3 was wife of Sh. Akhil Chandra who was son of late Sh. Nanak Chand in view of the above, there appears to be no violation of Section -118 of the Himachal Pradesh Tenancy and Land Reforms Act 1972. Hence the case is dismissed. 4. Aggrieved with the orders of the District Collector, the Complainant Sh. The respondent No.3 was wife of Sh. Akhil Chandra who was son of late Sh. Nanak Chand in view of the above, there appears to be no violation of Section -118 of the Himachal Pradesh Tenancy and Land Reforms Act 1972. Hence the case is dismissed. 4. Aggrieved with the orders of the District Collector, the Complainant Sh. Lalit Singh Chandia, made a representation before the Divisional Commissioner, Shimla, with the request to direct the Collector, to review his order dated 15.01-2008. Accordingly the Deputy Commissioner-cum-Collector, Shimla, entrusted an inquiry to the ADM Shimla who observed that the sale deed entered by Sh. Nanak Chand, was not accompanied by an agriculturist certificate, the Collector Shimla, again took cognizance of the case and vide his order dated 01.12.2010, declared that the land purchased was in violation of section-118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The Collector was of the view that as no agriculturist certificate was produced by the purchaser Sh. Nanak Chand & Smt. Sunanda Chandra, on 21.7.1979, therefore, sale deed No. 417,418, is in contravention of section -118 of the HP Tenancy & Land Reforms Act, 1972, accordingly khasra No. 228,229,225,226 and 227, measuring 5.19 bigha in Mauza Mashobra, the transfer of the above land vide sale deed was held to be invalid. 5. Advocate, Sh. Pawan Keprate has argued that the petitioners have produced jamabandi for year 1968-69,1996-1997,2001-2002, pertaining to Mohal Garli, Mauza Garli Khas, Tehsil Dehra, District Kangra, and it is not disputed that the properly in question has been inherited by the legal heirs of Sh. Nanak Chand , and the case against them for violation of Section -118, stood dismissed by the District Collector, vide his order dated 15-01-2008, and a mere advisory, in the last paragraph of the judgment pertaining to obtaining an agriculturist certificate, cannot mean that the entire transaction is vitiated or be treated as a violation of Section -118. That the land was purchased in 1979, and Collector Shimla, order dated 15.01.2008, has clearly held the predecessor in interest of the petitioners to have been owners of land in Mauja Garli, Tehsil Dehra, Distt. Kangra. 6. That the land was purchased in 1979, and Collector Shimla, order dated 15.01.2008, has clearly held the predecessor in interest of the petitioners to have been owners of land in Mauja Garli, Tehsil Dehra, Distt. Kangra. 6. That the order dated 15.01.2008, of District Collector, Shimla had attained finality, as no appeal was preferred and that the complainant had himself sold land to the petitioners and in order to defraud the petitioner, the complainant further sold land to one Pooja Co-operative Society, taking advantage of the absence of the petitioners against whom a criminal case vide FIR No. 213/2007, dated 31.07-2007, under various penal section of the IPC, has been separately registered. 7. That the said order of Collector dated 15.01.2008, could not have been reviewed by the Ld. Divisional Commissioner, and that chapter-10 of the Himachal Pradesh Tenancy & Land Reforms Act, is a complete code in itself, and there are no provisions of review of an order passed by the District Collector. That the permission given by the Ld. Commissioner, to the District Collector, is not valid and granting of review permission is barred by limitation. 8. That the power which authorizes the District Collector to order vestment of land in favour of State of Himachal, has been incorporated in the 'Act', for the first time vide Act No. 6 of 1988, which has received assent of the President on 25.3.1988, and that the land which is a subject matter of proceedings was purchased during 1979, therefore, the Collector, Shimla, has no jurisdiction to continue with the proceedings under Section 118 of the Act, and has exercised powers not vested with him. That amendment Act No.6 of 1988, has no retrospective application, as laid down by Himachal Pradesh High Court in Smt. Santosh Malhotra v. State of Himachal Pradesh SLC (2003), wherein Justice L.S. Panta, has held that the provisions of the Amendment Act, cannot be applied retrospectively. 9. Therefore, the arguments of the petitioner in a nutshell are that provision of appeal and revision under Section 118, are governed separately and are distinct from powers under section 65 of the Act. Further that the predecessor in interest of the petitioner, was an agriculturists as is apparent from the jamabandi relating to Garli Pragpur, District Kangra. That the jamabandis pertaining to the year 1978-79, 196-97, 2001-2002, clearly indicates that Sh. Further that the predecessor in interest of the petitioner, was an agriculturists as is apparent from the jamabandi relating to Garli Pragpur, District Kangra. That the jamabandis pertaining to the year 1978-79, 196-97, 2001-2002, clearly indicates that Sh. Nanak Chand to be owner of land 152 Sq. Mtrs. Which comprises of 48 s.q mts. in khasra No. 796 of barani abal land some portion as banjar apart from residences etc., and qantum of holding is not a yardstick to determine status of agriculturist, and the petitioners have acquired ascribed status of an agriculturist by birth and Collector Shimla, in order dated 15.01.2008, recognizes this facet. Moreover, the mutations of the said land purchased vide sale deed No. 417 & 418took places on 21.7.1979 which were mutated vide mutation No. 237 and 233 dated 01-06-1980, and that the vestment powers wee introduced in the year 1988, therefore, Collector cannot go into basic issue of pre-1988 transaction and orders of Collector dated 15.01.2008, recognising the agriculturist status of predecessor in interest of petitioner, has attained finality. 10. Ld. Dy. D A. (Rev.) Sh. R.D. Sharma, has argued that while it is correct that Collector, Shimla vide his order dated 15.01.2008, has held Sh. Nanak Chand, to be an agriculturist, nevertheless as an advisory he had stated that the appellant should produce an agriculturist certificate, and that even the jamabandi's produced by the petitioner indicate their father to be owner, but the possession is recorded in the name of 3rd party, and inspite of having been given sufficient opportunity to produce agriculturist certificate the same has not been done so. 11. That under Section 63 of the Act, the Divisional Commissioner, has correctly ordered review as per provisions of the Act. Further that the ADM (Protocol), has also reiterated that in the absence of producing an agriculturist certificate, it cannot be stated that the petitioners are 'agriculturist' and are entitled to purchase land. Reference has also been made to Civil Court judgment dated 16.11.2007, in case No. 201/1997, wherein the plaintiff, Sh. Sheel Chandra (present petitioner) had sought a decree of permanent prohibitory injunction to restrain the respondent from interfering in their peaceful ownership and possession of the suit land. Reference has also been made to Civil Court judgment dated 16.11.2007, in case No. 201/1997, wherein the plaintiff, Sh. Sheel Chandra (present petitioner) had sought a decree of permanent prohibitory injunction to restrain the respondent from interfering in their peaceful ownership and possession of the suit land. The suit filed by appellant/plaintiff was dismissed and counter suit filed by Pooja Building & Housing Society v. Sheel Chandra (present petitioner), the petitioner were restrained in interfering the ownership of possession of the Housing Society over land comprised in khata No. 37 khasra No 295/296, 343/293/3 measuring 1.7 bigha situated in Mauza Bharyal, Pargana Kaimli, District Shimla. 12. It has further been averred by Ld. Dy. D.A. that even before the Civil court, the petitioner could not prove their status of being agriculturists' therefore the case has been rightly dismissed and it has been prayed that order of vestment against petitioner be upheld. 13. On appreciation of the case file and arguments it is clear that Sh. Nanak Chand, has been shown to be owner of land situated in District Kangra, in jamabandi for the year 1978-79, 1996-97 and 2001-02 in khata/Khatauni Nos. 58/120-122,64/118-120, 71/118-120, respectively. The total land in 5 kitas, is indicated as 152 sqms. of which 48 sqa. In khasra No. 796, is shown as "barani abal", and khasra No. 795, as "banajar kadim" (24 sqmt.) in the above jamabandi, therefore, the findings of District Collector vide his order dated 15.01.2008, are in consonance with the revenue records. 14. I have also perused the decision of the Civil Court, the decision actually pertains to seeking relief of permanent prohibitory injunction over part of the suit land comprised in khata No. 37 khatauni No. 58, khasra No. 295,296, 343/293/3 measuring 1.7 bigha situated in Mauza Bharyal, Pargna Kaimli, District Shimla. No findings on the applicability of Section -118 of Himachal Pradesh Tenancy and Land Reforms Act, have been indicated in Civil Court decision, neither any decision given pertaining to agriculturist status of the petitioner. 15. Moreover, it is clear that land has been purchased by the petitioners vide a registered conveyance deed for which mutation has also been attested on 01-06-1980, a part of the same land was subsequently sold to Pooja Co-operative Society, vide a conveyance deed dated 23.5.1991, after a gap of almost 11-12 years. 15. Moreover, it is clear that land has been purchased by the petitioners vide a registered conveyance deed for which mutation has also been attested on 01-06-1980, a part of the same land was subsequently sold to Pooja Co-operative Society, vide a conveyance deed dated 23.5.1991, after a gap of almost 11-12 years. Wile the issue involved in the Civil Court may relate to a civil dispute, in so far as findings under Section -118 are concerned the decision of the Civil Court do not give any finding either in favour or against the petitioner. Furthermore, it is not disputed that the petitioners are the legal heirs of Sh. Nanak Chand, and definition of land owner under Section-2 (10) is as under:- "landowner" means a person defined as such in the Himachal Pradesh Land Revenue Act, 1954, (6 of 1954) or the Punjab Land Revenue Act, 1887, (17 of 1887) as the case may be and shall include the predecessor or successor in interest of the landowner". 16. There is force in the averments of Advocate, Sh. Pawan Kapraite, that the word 'agriculturist under section 2(2) of the Act, was substituted vide amendment Act No. 9 of 1997, (assented to by the President on 3rd May, 1997), wherein, in the definition of 'agriculturist' in Section 2(2) of the Act, for the word 'person', the work 'landowner', was inserted. It is not denied that the predecessor in interest was a land owner, even though the law no way prescribes the size of a holding and to cultivate personally under Section 2(4) of the Act, is defined as follows. "to cultivate personally" with its grammatical variations and cognate expression means- (i) by one's won account; (ii) by one's own labour, (iii) by the labour of nay member of one's family, or (iv) under the personal supervision of oneself or any member of one's family by hired labour, or by servant on wages payable in cash". 17. Therefore, even if Sansar Chand etc. are shown in possession of other 2 kitas of land, the ownership is that of Nanank Chand, and to cultivate personally has been given a wide definition in the Act. The legal heirs of predecessor in interest have for various reasons moved out and it is not possible for them to pursue procedural requirements with Revenue authorities for issues regarding obtaining of agriculturist certificate etc. The legal heirs of predecessor in interest have for various reasons moved out and it is not possible for them to pursue procedural requirements with Revenue authorities for issues regarding obtaining of agriculturist certificate etc. Considering that the predecessor in interest Sh. Nanak Chand was an agriculturist and the successors have inherited his property at Garil Pragpur, they are equally eligible to inherit property in Mashobra. Their status of being an agriculturist, cannot be denied to them and even the order of Civil Court in para-18 mentions that a copy of agriculturist was issued in favour of plaintiff Sh. Sheel Chandra, (deceased), however, the same was not recognised as it was not countersigned by "Tehsildar' but only by halqua Patwari. The possession of Sh. Nanak Chand (father of plaintiff) is recorded over the said land (in Mashobra) as a 'Pattadar' and copy of agriculturist certificate was issued in 1999 during pendency of the suit. This is itself proof of status of the individual. 18. Moreover, the Department of Revenue vide notification No. Rev. B.A(3)-1/2010-1 dated 12.09.2014, has clarified the issue whether an agriculturist who has willed or sold his entire land to the detriment of legal heirs, and such persons who are successor in interest of agriculturists, are to be covered under the definition of agriculturist, the clarification is as follows:- "It is clear that the main objective behind enacting Section -118 of the Act is to discourage such persons from acquiring land in the State of Himachal Pradesh who are not agriculturist in the State of Himachal Pradesh. Further, section 2(2) of the Act defines the expression 'agriculturist to' man a 'landowner who 'cultivate land personally' in an estate situated in Himachal Pradesh. The word 'landowner' has been defined in Section 2 (10) of the Act to mean a person defined as such in Himachal Pradesh Land Revenue Act, 1954 (6 of 1954) or the Punjab Land Revenue Act, 1887 (17 of 1887) as the case may be' and shall include' predecessor or successor in interest of the landowner'. The word 'landowner' has been defined in Section 2 (10) of the Act to mean a person defined as such in Himachal Pradesh Land Revenue Act, 1954 (6 of 1954) or the Punjab Land Revenue Act, 1887 (17 of 1887) as the case may be' and shall include' predecessor or successor in interest of the landowner'. From the combined reading of the provisions of Section 2(2) read will, Section 2(10) of the act, it would seem that in order to come within the ambit and scope of expression agriculturist, the primary requirement is that he should be landowner and further the successor in interest by virtue of the definition of land owner in Section 2 (10) will also be an agriculturist. Thus from the plain reading of section 2(2) read with Section 2 (10) inevitable conclusion is that firstly if a person is a landowner and an agriculturist in the State of Himachal Pradesh then his successors and predecessors in interest shall also be landowners'. Secondly such a 'landowner should be cultivating the land personally. Hence, by a technical interpretation, if a person is deprived by his predecessor/father/mother from succeeding such land by way of execution of will or otherwise then such a person will also be deprived from the status of "agriculturist". However, logically it cannot be the intention of the Legislation to deprive such a person from the status of 'agriculturist' who was likely to inherit agricultural land by way of normal succession. To deprive such a person from his status of an 'agriculturist' would be stretching the basic intent of the enactment of Section 118 of the H./P Tenancy and Land Reforms Act too far. It has been mention in the objects & reasons of the enactment that. "Restrictions have been imposed to purchase land by the non-agriculturists to avoid concentration of wealth in the hands of non-agriculturist moneyed class." Hence, keeping in view the basic spirit of the Act, ibid, it can be presumed that a person who has been deprived of inheriting agricultural land by an execution of Will or otherwise by his predecessor/father/mother, such a person shall be deemed to be an agriculturist. 19. In view of the above, I set aside the orders of the Divisional Commissioner, dated 12.01.2012, and uphold the orders of Collector, Shimla dated 15.01.2008. The revision is accordingly allowed. 20. Order be communicated to the parties. 19. In view of the above, I set aside the orders of the Divisional Commissioner, dated 12.01.2012, and uphold the orders of Collector, Shimla dated 15.01.2008. The revision is accordingly allowed. 20. Order be communicated to the parties. The records of the courts below be returned and the file of the court be consigned to the record room after due completion.