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2016 DIGILAW 2744 (HP)

MILKHI RAM v. RULIA RAM

2016-12-27

NARINDER CHAUHAN

body2016
JUDGMENT : 1. The revision petition under Section 114 of the HP. Tenancy and Land Reforms Act, 1972 (herein after referred to 'the Act'), is directed against the order dated 23.4.2014 passed by the id. Divisional Commissioner, Mandi Division, in Case No. 305/2036, whereby the Id. Commissioner has dismissed the appeal of the present petitioner by upholding the orders passed by the Id. District Collector, Hamirpur and the Id. LRO, Nadaun. 2. Briefly stated, the facts of the case are that Shri Rulia Ram herein respondent, filed an application on LR-V Form dated 1.9.1990, before the Land Reforms Officer, Nadaun, for resumption of land comprised in khata/khatauni No. 32/37, khasra no. 98/1, area measuring 3 kanal 9 marlas, situated in Tika Thain, Tappa Nauhangi, Tehsil Nadaun, Distt. Hamirpur, as per jamabandi for the year 1982-83, under section 104 of the Act. The LRO vide order dated 22.6.1994 rejected the application on the ground that the suit land was purchased after enactment of H.P. Tenancy & Land Reforms Act, 1972, which has been stated to have came into force w.e.f. 21.2.1974 (wrongly mentioned as 1.10.1973) and thereafter such resumption is not tenable. Shri Rulia Ram, present respondent assailed this order in appeal before the Collector, Sub-Division, Nadaun, who vide order dated 15.6.1996 passed in case No. 12/95/22/96, accepted the appeal and remanded the case back to the LRO, Nadaun, with a direction to hear the case in the true spirit of the enactment and particularly the Rules etc. (wrongly mentioned as section) 21(2) read with section 104(8) and give full opportunity of being heard to the parties. 3. The Land Reforms Officer processed the matter again and after hearing the parties, vide order dated 22.2.2002, rejected the application on the ground that neither the application has been filed within a period of six month from the date of retirement from Army nor the applicant was entitled to resume the land from the tenant as per the provisions of Section 34(d) of the Act. Feeling aggrieved with the above order of the LRO, the present respondent filed an appeal before the District Collector, Hamirpur who vide order dated 1.3.2004, passed in appeal No. 2/2003, accepted the same and remanded the case back to the LRO, Nadaun to examine the matter afresh in view of his observation given in the order and also directed to dispose of the same within a period of six months. The matter was again heard by the LRO and vide order dated 31.5.2005, he disposed of the matter observing that the application was not filed within prescribed period of limitation. The present respondent challenged this order before the District Collector, Hamirpur, who accepted the appeal vide order dated 7.2.2006, passed in Appeal No. 10/2005, holding that the application for resumption has been filed on 1.9.1990 and the same is within period of limitation, and remanded the case to the LRO, Nadaun with a direction to decide the matter afresh on merits within a period of six months. 4. Feeling aggrieved with the above order of the Id. Collector, District Hamirpur, the present petitioner Shri Milkhi Ram filed an appeal under section 114 of the Act, before the Commissioner, Mandi Division mainly on the grounds that the order passed by the lower court is perverse, unjust, unreasonable and against the law as well as against the principle of natural justice, that the impugned order is based on surmises and conjecture and is not a speaking order in the eyes of law. Lastly, it was averred that the lower court has committed a material illegality and irregularity while passing the impugned order. The Id Commissioner, after hearing the parties and on perusal of the record, vide order dated 10.7.2008, passed in Case No. 305/06, dismissed the appeal, on laches and delay. 5. Feeling aggrieved with the above order of the id. Commissioner, the present petitioner further challenged the same before this court by filing a revision petition. This court, vide order dated 7.12.2009, passed in Revision petition No. 86/2008, remanded the matter to the Id. Commissioner, Mandi Division, with the direction to decide the same on merits. On remand, the id. 5. Feeling aggrieved with the above order of the id. Commissioner, the present petitioner further challenged the same before this court by filing a revision petition. This court, vide order dated 7.12.2009, passed in Revision petition No. 86/2008, remanded the matter to the Id. Commissioner, Mandi Division, with the direction to decide the same on merits. On remand, the id. Commissioner, after hearing the parties, has dismissed the appeal vide the impugned order dated 23.4.2014, observing that; "Perusal of record reveals that the sole issue in this case is with regard to filing of application for resumption of land by the owner is respect of tenancy land and limitation thereof. The respondent served in armed forces till 31.8.1987 and he filed application for resumption of land on 1.9.1990. I am in conformity with the lower court that in computing period of limitation of any application, the delay from which the period is to be reckoned, shall be excluded. The lower court has drawn this force from section 12 of the Limitation Act, 1963. This way the period of limitation is to be reckoned from 1.9.1987 and this day is to be excluded for computing the period of limitation. Therefore, the application is filed within period of limitation." 6. Hence the present revision petition, inter-alia on the grounds that as per section 21(2)(iii) of the H.P. Tenancy & Land Reforms Act, 1975, the application was required to be made within a period of three years from the date, the owner ceased to be a member of the Armed Forces; that the present respondent retired from the Army on 31.8.1987 and application has been filed on 1.9.1990, thus there was delay of two days but the ld. lower courts have wrongly counted three years w.e.f. 2.9.1987, whereas it should have been from 1.9.1987. It has been averred that the Id. Collector has wrongly ignored his own decision dated 1.3.2004, and has committed a material illegality. Further that no tenancy was created by the respondent before six month of joining the Armed Forces or during his service in the Armed Forces, as the respondent had purchased the share from the previous owner under whom the present petitioner was a tenant, and thus the present respondent is not entitled for resumption of land under-tenant, but this aspect has wrongly been ignored by all the courts below. Lastly, it has been asserted that the respondent sought resumption of whole of khasra no. 98/1, measuring 3K-19M, but as per provision of section 104(i) read with section 21 (2)(ii) the respondent is entitled to resume 3/16 share only i.e. 0-8 marlas, but the ld. courts below have not touched this aspect of the case also, as such, the orders passed by the courts below are totally against the basic law and are not sustainable in the eyes of law, therefore, the petitioner has urged that the impugned order dated 23.4.2014, passed by the Id. Commissioner and Id. District Collector, dated 7.2.2006, may be set aside and the order dated 31.5.2005, passed by the Id. LRO, Nadaun be upheld. 7. I have heard the ld. counsels for both the parties. Id., counsel for the petitioner has reiterated the grounds of the revision petition and also argued that respondent has ceased to be the member of the Armed Forces on 31.8.1987, but he has applied for resumption of land from the tenant on 1.9.2009. The ld. counsel further argued that there are two questions involved in the matter, (i) whether application for resumption was filed within limitation, and (ii) whether the respondent was entitled to resume entire land measuring 3-19 kanals. On the issue of delay in filing resumption application, ld. counsel sated that the application was time barred by one day because the prescribed time of three years expired on 31.9.1990 from the date he retired from the Armed Forces on 31.8.1987, whereas the application was filed on 1.9.1990, thus the ld. counsel asserted that the orders passed by both the appellate courts below are not sustainable in the eyes of law. On the second issue, the ld. counsel stated that the respondent Shri Rulia Ram, is owner of 0-8marla, as such, he cannot claim to resume land more than his entitlement. 8. In reply, ld. counsel for the respondent argued that limitation of respondent retired from Armed Forces on 31.8.1987 was valid upto 1.9.1990, as per the provision of Section 12 of the India Limitation Act, 1963. It has been averred that the application is lying pending since 1990. Ld. counsel further argued that the Id. Distt. 8. In reply, ld. counsel for the respondent argued that limitation of respondent retired from Armed Forces on 31.8.1987 was valid upto 1.9.1990, as per the provision of Section 12 of the India Limitation Act, 1963. It has been averred that the application is lying pending since 1990. Ld. counsel further argued that the Id. Distt. Collector, vide order dated 1.3.2004, had accepted the appeal of the respondent and remanded the case to the LRO who vide order dated 31.5.2005, has again wrongly observed that the application was not within limitation. In appeal, the Id. Collector vide order dated 7.2.2006, has held that the respondent had served in the Armed Forces till 31.8.1987 and ceased to be a member of Indian Army w.e.f. 1.9.1987, as such, the application for resumption of land was within the prescribed period of three years as contained in Rule 21 (2)(iii) of the H.P. Tenancy & Land Reforms Rules, 1975. This order has further been upheld by the Id. Commissioner in second appeal filed before him. Lastly, ld. counsel stated that the orders dated 7.2.2006 and 23.4.2014 passed by the of the Id. Collector and Id. Commissioner are legally well reasoned and valid orders which have been wrongly challenged by the present petitioner without any cogent reason, with a view to harass the respondent. 9. On considering the arguments advanced by the ld. counsels for both the parties and going through the record of the courts below, only one issue is required to be adjudicated by this court and the issue is as to whether the present respondent has filed the application for resumption of land under tenancy within the time period prescribed under the law or not ?. From the perusal of the record, it is transpired that the present respondent had retired from the Armed Forces on 31.8.1987, and he has filed the application for resumption of land under tenant on 1.9.2009. As per provision of Rule 21 (2)(iii) of the H.P. Tenancy & Land Rules, 1975, the period for submission of application under sub-rule (i) of said Rules, for members of Armed Forces is within 3 years from the date on which the member ceases to be the member of the Armed Forces. Further, for the purpose of computation of period of limitation. Further, for the purpose of computation of period of limitation. Section 12 (i) of the Indian Limitation Act, 1963 provides that the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. 10. In the instant case, 1.9.1987 in the day from which the period of limitation is to be reckoned, and as such this day shall be excluded from the period of limitation as per the provision of the section 12(i) of the Limitation Act, 1963. As such, the Id. Distt. Collector, Hamirpur, vide his order dated 7.2.2006, passed in appeal No. 10/2005, has rightly set aside the orders dated 31.5.2005 of the Id. LRO (Tehsildar), Nadaun, passed in Misal No. 7/90. Further, the Id. Commissioner has also committed no illegality or irregularity by upholding the orders of the Id. Distt. Collector, vide impugned orders. Hence, the petitioner has failed to substantiate any illegality or irregularity in the orders passed by both the Courts below, which are well within the ambit and spirit of the Act. Accordingly, the present revision petition, is hereby dismissed, being devoid of any merit. The matter is remanded to the LRO, Nadaun with the direction to dispose off the Form LR-V on merits in accordance with the law. Both the parties are at liberty to raise their issues, which are not being adjudicated upon by this court, before the Land Reforms Officer. 11. Order be communicated. The record of the courts below be returned and the file of this court be consigned to the record room after due completion.