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Himachal Pradesh High Court · body

2016 DIGILAW 1351 (HP)

DYALOO DEVI v. STATE OF HIMACHAL PRADESH

2016-07-12

NARINDER CHAUHAN

body2016
ORDER : 1. The revision petition has been preferred under Section 118(3-C) of the H P. Tenancy & Land Reforms Act, 1972 (hereinafter referred to as 'the Act'), against the order dated 6.7.2009, passed by the Commissioner, Shimla Division in Case No. 181/2006, confirming the order dated 29.7 2006, passed by the District Collector, Solan in case No.55/13 of 1999, who ordered to vest the and in question along with the structure standing thereon, if any, in the State of H.P. for reasons of contravention of Section 118 of the Act. 2. Briefly stated, the facts of the case are that the Tehsildar Kandaghat, reported that Shri Duni Chand predecessor-in-interest of the petitioner and proforma respondents, were non-Himachali and non-agriculturist of Himachal Pradesh, and have purchased land comprised in khasra no.223 and 224, measuring 1-6 bighas situated in mauza Silhari, Pargna Bagri Khurd, Tehsil Kandaghat, through a registered sale deed no. 109 dated 29.11 1982 in violation of section 118 of the H P Tenancy & Land Reforms Act, 1972, by securing a certificate of village carpenter under the garb of exemption granted to village artisan under section 118(2)(C) of the Act ibid. Since the exemption granted to the village artisan under section 118(2)(C) of the Act, is only to the Himachalis whose ancestral profession is of village artisan and who are mainly dependent on this profession as a source of their livelihood. The exemption clause is not meant for persons who are not bona fide residents of H P.. That certain persons mange to obtain certificate through dubious means to circumvent the provisions of Section 118 of the Act. Shri Duni Chand was not a bona fide resident of H P. and was also Proforma not a village artisan by profession at the time when he purchased the land described above. 3. It was also reported that subsequent to the purchase, his wife Smt. Dyaloo Devi, present petitioner, also purchased land comprised in khasra no.294, 295, 296, 330 and 331. measuring 2-11 bighas through registered sale deed no.53 dated 4.7.1985 and land comprised in khasra no.290,292,302,305,314,322 and 333, measuring 5-3 bighas and khasra no 291,232 measuring 0-14 biswas vide sale deed no.54 dated 4.7.1985, and khasra no.304, 321, 281, 315, 301, measuring 2-9 bighas vide sale deed No.55 dated 4.7 1985 and vide sale deed no.60 dated 30.7.1985, land comprised in khasra no. 297, 303, 306, 313, 317, 319, 327, 329 measuring 7-4 bighas, situated in Mauza Balola, Pargna Bagri Kurd, Tehsil Kandaghat ,Distt. Solan on the basis of purchase of land by her husband (Duni Chand) in village Selhari, which are also in violation of section 118 of the Act After affording due opportunities of being heard to the parties and recording the statements and perusal of the documents produced, the learned Collector, Solan, vide order dated 29.7.2006, passed in case no.55/13 of 1999,ordered to vest the above stated land in the State of H P. along with structure thereon, if any, free from all encumbrances, as all the above sale deeds have been registered in contravention of H.P. Tenancy & Land Reforms Act, 1972, in the name of such persons who were not legally entitled/eligible to purchase land in Himachal Pradesh. 4. Feeling aggrieved with this order, the present petitioner Smt. Dyaloo Devi filed an appeal before the commissioner, Shimla Division on the grounds that the Collector, Kandaghat had already passed order in case no. 1/V111/89,which had not been assailed by the Government that they were eligible to purchase land. That on the issue of false certificate furnished by them, the criminal proceedings against them have already been dropped. After hearing the parties and only perusal of the record the learned Commissioner vide the impugned order held that neither the appellant nor her predecessor-in-interest were entitled to seek exemption under section 118(20(C) of the Act, for purchase of agricultural and in Himachal Pradesh, and rejected the appeal upholding the vestment order passed by the Collector, Solan 5. Petitioner has come in revision before this court on the gourds that court below while deciding the proceedings under section 118 of the Act, has failed to consider that the Collector, Sub-Division. Kandaghat, has passed the order in case no.11/V111/89 in appeal 14/V111/89 where by the Ld. Court at that time had upheld the mutation with respect to the present appeal and the State of H P. was also one of the parties and since the order has not been assailed by any person including the respondent, therefore, the same is binding, it has been averred that since deciding the appeal the Collector Kandaghat, exercised the powers of Collector, therefore, the Collector, Solan, cannot pass the impugned order dated 21.7.2006. That the definition as given in the Act, nowhere differentiates or distinguishes a village artisan with respect to residency, (i.e. Himachal or outside), the predecessor-in-interest of the petitioner and proforma respondents, were permanent residents of village Srinagar, Tehsil Kandaghat and his status of village artisan, cannot be denied, and therefore, he was entitled to purchase the land. Further that she and her family possess such a certificate (Village artisan) from the State of H P. which was issued prior to the purchase by the appellant and hence there was no occasion for the courts below to disbelieve such certificates. It has also been asserted that during the course of proceedings the respondent No.1, Shri Duni Chand had expired and no steps were taken to bring on record his legal heirs and on this score, the entire proceedings are vitiated. 6. I have heard the learned counsel for the petitioners and proforma respondents and Id. Distt. Attorney (Rev.) for the State/respondent. Ld. Counsel for the petitioner has argued that in the year 1989, the Collector (SDM), Kandaghat, has passed an order declaring the petitioner as a village artisan, and such order has attained finality, as the same remained unassailed. Ld. Counsel averred that the SDMs, when enjoys powers of Collector under the Land Revenue Act, 1954, has declared the petitioner as a "village artisan" It has been asserted that being a village Artisan his case is covered under the exemption provided in Section 118(2)(C) of the Act, as such the present revision petition may be allowed by setting aside the impugned orders of the courts below. 7. In reply, Id. D.A.(Revenue) has argued that under different Acts, different powers are exercised by the authorities. That, it is not the Sub-Divisional Collector, who can exercise powers under section 118 of the Act, but it is the Distt. Collector who is empowered to proceed under the said section. Regarding the definition of 'artisan', learned D A.(Rev ) stated that the petitioner was running a saw mill a furniture shop, in an urban area and as such is not entitled for exemption as provide under the law, He further argued that the courts below have passed well reasoned orders and there is no illegality or irregularity in those order and as such the present revision petition being devoid of merits may be dismissed. 8. 8. I have considered the arguments advanced by the learned counsel for both parties and have gone through records of the courts below. From the perusal of the record of the courts below, the copy of sale deed dated 27.11.1982 vide which predecessor-in-interest of the petitioner, Shri Duni Chand, has purchased land comprised in khasra no.223 and 224 measuring 1-6 bigha situated in mauza Silhari Pargna Bagri Khurd Tehsil Kandaghat, Distt Solan (copy available at page 51-56 of the trial court) and copy of affidavit of Shri Duni Chand (available at page 89-90 of the said file),it appears that Sh. Duni Chand has not purchased the aforesaid land under the exemption available under section 118(20(c) of the Act, "Village artisan", rather he has filed an affidavit before the Sub-Registrar with the declaration that he was residing in Mauza Bhalog, P.O Bhalog, Tehsil Sarkaghat. Distt. Mandi, prior to 1950 and is owner of land in that Mohal. However, it has been expressed in the said affidavit that he (Sh.Duni Chand also prepares/manufactures agricultural equipments/tools like plough etc., but in para no.6 of the said sale deed, it has been specifically mentioned that the purchaser (Sh. Duni Chand) is an agriculturist of village Bhalog, Tehsil Sarkaghat Hence, it is clear that the Sub-Registrar has registered the sale deed under the impression that Shri Duni Chand was an agriculturist of the H P But, a detailed enquiry and statement of police during the course If inquiry in this behalf has disclosed that the afore said affidavit of Shri Duni Chand (predecessor-in-interest of the present petitioner) was false. A criminal case No.70/2 of 95 under section 177, 420, 423, 424 and 465 of IPC, was also registered against him, but Shri Duni Chand was acquitted charges by the Id. Addl. CJM, Kandaghat, Solan vide judgment dated 26.6.1996 on technical grounds, namely that Collector Kandaghat vide order dated 18.9.1989,held sale deed valid for reasons of his being a village artisan, and for reasons of limitation under section 468 Cr.PC No. cognizance of the criminal case was taken by CJM Kandaghat vide decision dated 26.6.1996, therefore, the basic charge that he filed a wrong affidavit stating to be agriculturist in District Mandi, was not gone into by Ld.CJM. 9. 9. So far as the claim of the petitioner qua his status as 'village 'artisan' is concerned, record of the trial court shows that a certificate was issued in favour of Sh.Duni Chand son of Gurdial Singh, resident of village Sri Nagar, P.O. Kandaghat by the Block Development Officer, Development Block, Kandaghat, on 18.11.82 (a photo copy available at page 169/170), certifying that Sh.Duni Chand manufactures agricultural tools and equipments and he also repairs agricultural tools and plough etc. and also repairs rural house. The S.D.O(Civil), Kandaghat vie order dated 18.9.1989 has also uphold his status as "village artisan". But, it is not clear as to whether such certificate issued by the Block Development Officer Kandaghat and further upheld by SDO (C) Kandaghat has been cancelled or not Further perusal of the record discloses that the Project Officer, SFDA, Solan had deputed many persons for training as carpenter under the TRYSEM during the year 1980. Further, this fact finds mention in Collector under dated 28.7.2006, It was also claimed that Sh. Duni Chand, had deposited Rs.91.50 as security vide receipt No.76430/19525 on 27.10.1971, which money was deposited as "registration fee" to be authorised as a "master trainer" under the training of skill development scheme. The order passed by the District Collector, Solan, also makes a mention of such a certificate, but assigns no specific reason to deny the aforesaid of acts. Although the District Collector, Solan has tried to redress all these issues on the basis of statements of various officers/officials, but the facts as pointed above, requires to be ascertained afresh, as they are fundamental to determining the issues in question If Sh Dun. Chand is and agriculturist' the case ought to be viewed differently. If being a resident of Kandaghat, prior to State hood, and enjoining the status of a village artisan, he is entitled to exemption clause in 118(2)(d) and within limit as mentioned in section 118(2)(dd), if land was purchased after amendment (Act No.9 of 1987). Chand is and agriculturist' the case ought to be viewed differently. If being a resident of Kandaghat, prior to State hood, and enjoining the status of a village artisan, he is entitled to exemption clause in 118(2)(d) and within limit as mentioned in section 118(2)(dd), if land was purchased after amendment (Act No.9 of 1987). Hence, in view of the observations made herein above, it would be appropriate to remand this case to the District Collector, Solan for a detailed investigation and a decision afresh Accordingly, the impugned orders dated 6.7.2009, passed by the Ld Commissioner, Shimla Division in appeal No. 181/2006 and the orders dated 29.7.2016, passed by the Collector, Solan in Case No.55/13, are set aside and the matter is remanded back to the District Collector, Solan, for a fresh decision. The revision petition is allowed to this extent. 10. Announced in the open court today the 12th July, 2016. The record of the courts below be returned and the file of this court be consigned to the record room after due completion.