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2016 DIGILAW 1095 (HP)

Suresh Kumar v. State Of H. P.

2016-06-17

NARINDER CHAUHAN

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ORDER : Shri Narinder Chauhan, I.A.S. 1. This revision petition under Section 118(30) read with section 114(3) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, (hereinafter referred to as the Act), has been preferred against the order dated 23.9.2014, passed by the Commissioner, Mandi, in case No.165/2014, vide which the appeal of the present petitioner has been dismissed upholding the orders dated 21.3.2014, of Ld. Collector, District Kullu, passed in case No. 1/DC/118/2013. 2. Briefly stated, the facts of the case are that on receipt of a complaint and enquiry thereon, the District Collector, Kullu initiated proceedings against the present petitioners under Section 118 of the Act for violation of the provisions of said section After providing proper opportunity of being heard, the District Collector, Kullu, vide his order dated 21.3.2014 passed in case No.1/DC/118/2013, came to the conclusion that 42-02-05 bighas land has been purchased by the petitioners through 32 registered sale deeds, in contravention of Section 118 (1) of the Act. The District Collector declared 4 sale deeds, registered prior to 14.4.1988, involving 0-10-00 bighas, as void-ab-initio. Remaining 28 sale deeds, registered after 14.4.1988, have also been declared void-ab-initio and area 41-12-05 bigta involved in these sale deeds have been ordered to be vested in the State Government. 3. Feeling aggrieved with the aforesaid order dated 21.3.2012 passed to the District Collector, Kullu, the present petitioners filed an appeal No.165/2014 before the Ld. Commissioner, Mandi Division, who dismissed the same vide his order dated 23.09.2014 Hence, the present revision petition. 4. I have heard the Ld. Counsel for the petitioner and the District Attorney (Revenue) appeared on behalf of the State of Himachal Pradesh The main grounds of the revision petition are that the courts below have not appreciated the facts and law in its right spirit and as such the orders passed by them are wrong, illegal, improper and unreasonable. That Ld. Counsel for the petitioner and the District Attorney (Revenue) appeared on behalf of the State of Himachal Pradesh The main grounds of the revision petition are that the courts below have not appreciated the facts and law in its right spirit and as such the orders passed by them are wrong, illegal, improper and unreasonable. That Ld. Collector committed an error while referring the matter to his subordinates to conduct an enquiry whereas under the provisions of section 118 (3A) (b) of the Act, he was duty bound to enquire into the matter himself that father of the petitioners though a resident of Punjab settled and rendered his services at Kullu, since 1961-62 till his retirement on 31.7.1982, in the Department of Industries, Government of Himachal Pradesh, and that prior to 1966, District Kullu was part of Punjab but after re-organization of Punjab in 1966, father of petitioners became an employee of the State Government That the petitions worked as an agriculture labourer and falls within the definition of landless labourer and their mother being landless carried on an allied agricultural pursuit ever before the commencement of the Act, as such they are covered under the exemption clauses of sub-section (2) of Section 118 of the Act that the Ld. District Collector, did not provide proper opportunity to the petitioner to lead evidence in support of their claim/contentions :- That in the year 1980 when sale deed No. 601 was executed the Sub-Register Kullu considered the requirement of section 118(2) of the Act and registered the sale deed, that at the time there was no provision in the Act to submit any agriculturist certificate at the time of registration of sale deed under the Act, both the courts below have ignored these facts. In support of his contention Ld. Counsel cited 2003(3) SLC-189. In addition, the Id. Counsel for the petitioners argued that the mother (Smt. Dewan Rani) of the petitioners belonged to an agricultures family of the State of Himachal Pradesh Ld. Counsel further argued that even the wife of petitioner No.1 is also an "agriculturist" of the State. In support of his contention he also produced a photo copy a photo copy of agriculture; certificate issued by the Tehsildar, Amb, District Una No. 192/OK dated 18.4.2001 issued in favour of father (Sh. Dina Nath son of Gian Chand) of wife (Smt. Sunia Gupta) of the present petitioner No.1. In support of his contention he also produced a photo copy a photo copy of agriculture; certificate issued by the Tehsildar, Amb, District Una No. 192/OK dated 18.4.2001 issued in favour of father (Sh. Dina Nath son of Gian Chand) of wife (Smt. Sunia Gupta) of the present petitioner No.1. Lastly, the Ld, Counsel has urged that in view of the detailed submissions made in the revision petition, the present revision petition may be allowed and the orders of both the courts below may be set aside in the interest of justice. 5. Ld. District attorney (Revenue) appearing on behalf of respondents argued that there is clear cut violation of the provisions of the Section 118 of the Act, as has been pointed out by the District Collector, Kullu and further upheld by the Commissioner, Mandi Division vide impugned order dated 23.9.2014. That the plea of the petitioners being landless labourer is not acceptable as it is not possible for a landless labourer to purchase more than 42 bighas of land that too through 32 different sale deeds and the petitioners are trying to make out their case on one pretext or another just to protect the land which they have acquired in violation of Section 118 of the Act. Moreover, they should have produced some evidence in support of this contention, but they should have produced some evidence in support of this contention, but they have failed to produce any such evidence before the trial court. Further the Id. D.A.(Revenue) has argued that in case such plea of the petitioners are considered and accepted without any proper evidence, it would be totally against the basis spirit of the Act. Lastly, he urged that there is no illegality or material irregularity having been committed by the trial as well as the appellate court, while passing the orders in question which warrants any interference and as such the present revision petition, being devoid of any merit, may be dismissed in the interest of justice. 6. On considering the arguments advanced by the Ld. Counsels for both the parties and carefully going through the contents of revision petition as well as the record of courts below, it is evident that a detailed enquiry has been got conducted by the District Collector, Kullu before passing the order dated 31.3.2014. 6. On considering the arguments advanced by the Ld. Counsels for both the parties and carefully going through the contents of revision petition as well as the record of courts below, it is evident that a detailed enquiry has been got conducted by the District Collector, Kullu before passing the order dated 31.3.2014. The perusal of the record further reveals that the plea of the petitioners qua exemption under Section 118 (2) being "landless agricultural labourer" has been duly considered by the District Collector, Kullu and decided in its right perspective keeping in view the basis spirit of the Act, which has further been upheld by the Ld. Counsel for the petitioners has argued that the mother of present petitioners, Smt. Dewan Rani, belonged to an agriculturist family of the State of Himachal Pradesh and that even the wife of petitioner No.1 is also an "agriculturist" of the State, but these facts/issues do not seem to have been properly considered and adjudicated upon. The State Government has issued clarification regarding definition of an "agriculturist" vide letter No. Rev B.A.(3)-1/2010-1-Loose, dated 26th July, 2013, in partial modification to earlier clarification dated 12th December, 2011. Vide clarification dated 12th December, 2011 it was clarified that a Himachali female person whose parents are agriculturist, but how marries a non-agriculturist whether within or outside Himachal Pradesh where the parents of such a female are covered under the definition of Agriculturist in terms of Section 2(2) of the Act, is also an agriculturist because she is a landowner within the meaning of Section 2 (10) of the Act being successor-in-interest of her parents who are agriculturist of Himachal Pradesh However, the successor-in-interest of such a female person married to a non-agriculturist shall not have the status of agriculturist. But this clarification has further been modified vide clarification dated 26.7.2013, that children of a female person, whose parents are agriculturists but married to a non-agriculturist will be covered under the redefinition of "agriculturist" only if such female person acquires the ownership right through succession from her parents. 7. But this clarification has further been modified vide clarification dated 26.7.2013, that children of a female person, whose parents are agriculturists but married to a non-agriculturist will be covered under the redefinition of "agriculturist" only if such female person acquires the ownership right through succession from her parents. 7. Further vide letter No. Rev B.F.(5)-B/2001, dated 30th April, 2002, it was also clarified that from combined reading of section (2), 2 (4), 2(5) and 2(10) of the Act, read with Section 4(9) of the Himachal Pradesh Land Revenue Act, 1954, it is clear that a husband who is successor in interest of his wife, and being member of the family also falls in the expression "to cultivate personally" is an agriculturist for the purpose of Section 118 of the Act, But this clarification was being misinterpreted and misused and as such was withdrawn vide letter No. Rev. B.F.(5)-8/2001 dated 24.5.2010. Now in supersession of the letter dated 24.5.2010, the State Government has again clarified vide letter No. Rev. B.A.(30-1/2010-1-Loose, dated 20.5.2016, that a husband who is successor in interest of his wife and being member of the family also falls in the expression "to cultivate personally" and is an agriculturist for the purpose of section 118 of the Act in question and no permission as required by said section is necessary, however the issuing authority may take due care that this definition is not again misused and issue certificate to such person after exercising due diligence. 8. Since, the Ld. Counsel has also submitted a photo copy of agriculturist certificate issued by the Tehsildar, Amb, District Una No. 192/OK dated 18.4.2011 issued in favour of father (Sh. Dina Nath son of Gian Chand) of wife (Smt. Sunita Gupta) of the present petitioner No.1 this issue require thorough investigation and consideration. Hence, it would be appropriate to remand the matter to the District Collector Kullu to look into this issue again keeping in view the clarifications issued by the State Government from time to time and decide the same afresh after offering proper opportunity of being heard to the parties. 9. Keeping in view of the forgoing observations, matter is remanded to the District Collector, Kullu. Further, the petitioners are directed to produce the entire relevant documents, in support of their claim, before the Ld. District Collector, Kullu within a period of three months from the date of these orders. 9. Keeping in view of the forgoing observations, matter is remanded to the District Collector, Kullu. Further, the petitioners are directed to produce the entire relevant documents, in support of their claim, before the Ld. District Collector, Kullu within a period of three months from the date of these orders. In case the petitioners fail to produce the relevant documents within the stipulated period of three months, the decision of the District Collector, dated 21.3.2014 will prevail. Revision petition is accordingly disposed of. 10. Announced in open court today on 17.6.2014. The records of the courts below be returned and file of this court be consigned to the record room after due completion.