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2016 DIGILAW 1652 (HP)

BABU RAM v. PRITO

2016-08-09

NARINDER CHAUHAN

body2016
ORDER : 1. This revision petition under section has been preferred against the order dated 12.7.2011 passed by the Id. Commissioner, Kangra Division in case no. 110/2007, whereby the appeal of the present petitioners has been dismissed by upholding the orders passed by the Distt. Collector (ADM), Kangra dated 26.2 2007, who upheld the order of A.C. Under Grade, dated 24.4.2001, conferring proprietary rights on the respondent vide mutation No.321. However, the petitioner has not specified the provisions under which the present petition has been preferred, this court is considering the same under section 114 of the H.P. Tenancy & Land Reforms Act, 1972 (hereinafter referred to as 'the Act') 2. Briefly stated the facts of the case are that Shri Prito the present respondent, was record as a non-occupancy tenant under the ownership of Shri Ganga Gir Chela Kaula Gir predecessor of the present petitioners, over the land comprised in khasra no.217 and 218, area measuring 0-02-09 hectares, classified as 'gair mumkin', situated in Mauza Banala,Tehsil Shaper, Distt. Kangra, in lieu of 'kar jarayat saal tamam char din' (i.e four days labour/work on agriculture in a year), as per jamabandi for the year 1996-97. Vide mutation no.321, attested on 24.4 2001, the A.C. 11 Grade, Shahapur, conferred proprietary rights to the respondent(tenant) under section 104(3) of the H.P. Tenancy & Land Reforms Act, 1972, in the general public (jalasa aam) but in absence of the petitioners land owner. Feeling aggrieved, the present petitioners filed an appeal before the District Collector, Kangra on 9.5.2006, after a lapse of a period of more than five years, mainly on the grounds that the A.C.11nd Grade, has no jurisdiction and is not competent to pass such order; that only LRO-cum-A.C. Ist Grade, has the jurisdiction of conferment of proprietary rights and to sanction such mutation, as per provisions of Rule 28 of the H.P Tenancy & Land Reforms Rules, 1975. Further that the mutation can only be sanctioned in the presence of both the parties, but in the present case no notice was ever served upon the predecessor-in-interest of the appellants(petitioners) and no opportunity of being heard was provided to him to appear before the lower court; that the suit property does not fall under any provision of the H P Tenancy & Land Reforms Act, 1972 as the Act is not applicable on the 'gair mumkin mukan' and 'angan' etc. but the court below has failed to understand the provisions of the Act and has wrongly passed the illegal order. Lastly, it was submitted that the respondent is neither in possession of any part of the suit property nor he was ever in possession of the suit property. The Id. Collector, after providing due opportunity of being heard to both the parties, vide order dated 26.2.2007, dismissed the appeal no.24/2006, holding that:- "......it is revealed that the mutation no.321 of Mohal Dharamshala, Mauza Banala Tensile Shahapur, District Kangra was attested by the A.C.11nd Grade, Shahpur on 24.4.2001 on the spot in the General Public in presence of Prito and Chowkidar Deh. The land owners despite service were not present deliberately As per the revenue record the suit land was under the ownership of Ganga Gir Chela under the possession of Prito Gair Maroosi tenant on rent basis "Kar Jarail Shal Tamam 4 din". The classification of land hearing khasra no.217 area measuring 0-00-90 hect. "Gair Mumkin Angan" and khasra no. 218 area measuring 0-01-09 hect. "Gair mumkin Makan" which is under the possession of the respondent. The landowner has not challenged the tenancy entry in any competent court. The landowner have full knowledge of the impugned order. After the death of predecessor of the appellant he has filed the appeal after lapse of 5 years which is grossly time barred. The day today delay has not at all explained from the date of passing the impugned order. In view of the above facts I am of the affirm opinion that the lower court has served notice to the landowner and the land owner despite service has not present at the time of attestation of mutation deliberately. Moreover, the mutation has been sanctioned in the general public on the spot. Hence the appeal is rejected hereby on the grounds of limitation." 3. Dissatisfied with the above order of the Id. Collector (ADM), Kangra, the present petitioners filed a second appeal before the Commissioner, Kangra Division, on similar grounds. The Id. Commissioner, upheld the order of the Collector and dismissed the appeal vide the impugned order dated 12.7.2011 passed in Case no.110/2007. Hence, this revision petition has been filed before this court. 4. Dissatisfied with the above order of the Id. Collector (ADM), Kangra, the present petitioners filed a second appeal before the Commissioner, Kangra Division, on similar grounds. The Id. Commissioner, upheld the order of the Collector and dismissed the appeal vide the impugned order dated 12.7.2011 passed in Case no.110/2007. Hence, this revision petition has been filed before this court. 4. On 12.7.2016, when the case came up for arguments, the original counsel for both the parties were not present and it was observed that the case is lying pending for arguments for the last almost one year. The Id. vice counsels also failed to argue the case and were directed to intimate the original counsel to file written arguments within 10 days, failing which the case will be decided on :he basis of record. But till date written arguments has been received only on behalf other respondent. The grounds of the revision petition have been considered as the claim of the petitioners. 5. The petitioners have submitted in the grounds of revision petition that the land is defined in section 2(7) of the Act, which says the "Land means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agriculture purposes or for purpose subservient to agriculture or for pasture and includes (a) The site of building and other structures on such land (b) Orchards, (c) Ghasnies, (d) Banjar, and (e) Private Forest. That purposes which are agricultural or subservient to agriculture, also have been defined in the Act, but the A.C. 11nd Grade, has failed to understand the provision of the Act and has wrongly and illegally sanctioned the mutation of proprietary rights in favour of the respondent under Section 104(3) of the Act, which was not at all applicable in the present case. The petitioners have laid down the judgment of Punjab & Haryana High Court in case State of Punjab & ors. v. Jagdish Parshad Dresser, 1988 SLJ 213, on the issue of limitation. 6. The petitioners have laid down the judgment of Punjab & Haryana High Court in case State of Punjab & ors. v. Jagdish Parshad Dresser, 1988 SLJ 213, on the issue of limitation. 6. In written arguments, the Ld Counsel for the respondent has submitted that the respondent Prito alias Pritam Chand was a tenant at will in the suit land on payment of rent (Gala Batai) under the ownership of appellant/land owner from the time of their forefather, and the respondent was never ejected from the suit land by the appellant at any point of time and tenancy of the respondent was never disputed by the petitioner. That the respondent himself raised the construction of residential house over the part of suit land with implied permission of the petitioner, as the petitioner never objected to the respondent for the same and is residing in the premises with his family. That the land in dispute falls within the purview of definition of land as defined in section 2(7) of the Act. It has further been submitted that the petitioners were not entitled to resume any land under tenancy from the respondent and the respondent has become owner in possession of the land in dispute w.e.f. 3.10.1975 and mutation is an automatic process and sanctioned by the L R.O. Shahpur by exercising the power of A.C. 2nd grade under Rule 28 of the H.P. Tenancy and Land Reforms Rules, 1975 on 24.4.2001. Further that the i petitioner remained silent for a period of 5 years and filed the appeal before the I District Collector/A.D.M. Kangra at Dharamshala on 26.2.2007, which has been dismissed by the Collector and, the further appeal Divisional Commissioner, Kangra, has also been dismissed as the appeals lack merit and are hopelessly time barred. Lastly it has been urged that the present petition is also meritless and the claim of the petition is not sustainable in the eyes of law and same is liable to be dismissed with special cost in the interest justice as the respondent is 80 years old person and is being harassed by the petitioner. 7. Lastly it has been urged that the present petition is also meritless and the claim of the petition is not sustainable in the eyes of law and same is liable to be dismissed with special cost in the interest justice as the respondent is 80 years old person and is being harassed by the petitioner. 7. On considering the pleadings on behalf of both the parties, it is clear that the only issue involved in the present litigation is that as to whether the land in question falls under the definition of "land" as defined in Section 2(7) of the Act and whether the present respondent was/is entitled for conferment of ownership rights on such land being recorded as non-occupancy tenant. In order to consider this issue in its right perspective, it would be proper to reproduces the definitions of terms "Land", as defined Section 2(7) of the Act, as follows: 2(7) "land" means land which is not occupied as the site of any building in a town or village and is occupied or has been let to agricultural purposes or for subservient to agriculture, or for pasture and includes: (a) The site of buildings and other structures on such land. (b) Orchards. (c) Ghasnice. (d) Banjar land. (e) Private forest. From bare perusal of aforesaid definition it is clear that there are two conditions which are to be fulfilled for the purpose of this Act. Buildings in town and villages are not part of definition of 'land', And that the 'land' includes land used for agriculture & purposes subservient thereto or for pasture and includes, the sites of buildings and other structures on such land, orchards, ghasnies, banjar land, and private forests. In the instant case, however, copy of jamabandi is not available, but from the perusal of copy of mutation No 321 available at page 19 of the file of Collector (ADM), Kangra at Dharamshala, it appears that land in question was partly classified as "Gair/Mumkin Makan" and partly as "Gair Mumkin Angan" which is not assessed to land revenue. Hence, the above entry reveals that the land in question does no fulfil both the conditions as per definition of term "land", reproduced above. 8. Hence, the above entry reveals that the land in question does no fulfil both the conditions as per definition of term "land", reproduced above. 8. Further, as per definition of 'Tenant' defined in Section 2(17) of the Act, a tenant is a person who holds land under a landowner, and is, or but for contract to the contrary would be liable to pay rent for that land to that landowner. In the instant case there is no entry of rent in corresponding column of mutation but in the column of possession itself the respondent has been entered as Gair Maurusi Kar Jarayat Sal Tamam Char Din". Meaning thereby the respondent is non-occupancy tenant on account of providing services for four days in a year for agriculture. But from the definition of the term "Rent" as defined in Section 2(15) of the Act, as follows, if appears that the rendering of any personal service or labour is not covered under the definition of Rent: (15) "rent" means whatever is payable to landowner in money or find by a tenant on account of the use or occupation of land held by him; but shall not include the rendering of any personal service or labour: Therefore, it is clear that a 'tenant' is one who is liable to pay rent [Section 2(17). However, the rendering of personal service is not within ambit of rent [Section 2(15)], which can conclusively derive to the conclusion of a relationship of tenancy. Hence, from the above discussion it prima facie appears that there an irregularity has been committed by the AC 2nd Grade, while sanctioning, the mutation No.321, but, since, the copies of relevant jamabandies are not available on record, the mutation No.321, is not hereby being set aside. Further, it is also not clear from the case file as to whether the respondent holds or held other land of the petitioner which is clearly covered under the definition of the 'land', as a tenant or not. 9. Hence, as the copies of relevant Jamabandis are not available on record, it would be appropriate to remand this matter to the Land Reforms Officer, Dharamshala, with the directions to re-consider the mater in view of above observations and the relevant provisions of law and decide the same afresh, after providing the proper opportunity of being heard to both the parties. This order may be taken as permission to review the mutation No.321. The revision petition is allowed to this extent and the orders passed by both the courts below are hereby set aside. 10. Announced in open court today the 9th August, 2016. The record of the courts below be returned and the file of this court be consigned to the record room after due completion.