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2016 DIGILAW 964 (HP)

State Of Himachal Pradesh v. Durga Sankirtan

2016-05-27

NARINDER CHAUHAN

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ORDER : Shri Narinder, Chauhan, I.A.S. The three revision petitions under Section 118(3-C) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 [hereinafter referred to as the Act] have been directed against the common order dated 3.10.2011, passed by the Ld. Commissioner, Kangra Division in appeals No.42/2004, 43/2004, and 44/2004 titled Shri Durga Sankirtan Mandi v. State of Himachal Pradesh through Collector, Una, whereby the appeals of present respondent have been allowed by setting aside the orders dated 3.12.2003 passed by the District. 2. Briefly stated, the facts are that the District Collector, Una initiated proceedings against the present respondent for violation of the provisions of Section 118 of the Act, and after conducting an enquiry and providing opportunity of being heard to both the parties, came to the conclusion vide order dated 3.12.2003, that following lands have been transferred in favour of the present vestment of the same in favour of the State Government. 1, Case No. 28/2001:- Land bearing Khasra No.2850, Shumar No.26, Ghat No.232/2 min, measuring area 0-00-72 hectares, situated in Village Nari Tehsil Amb, purchased by the respondent vide sale deed No.45 dated 24.9.1998. 2. Case No.29/2001:- Land bearing Khasra No.2848/1/2/1, Shumar No.221, Ghat No.221 min, area measuring 0-00-88 hectares, situated in Village Nari Tehsil Amb, purchased by the respondent vide sale deed No.57 dated 28.11.1998. 3. Case No.30/2001: Land bearing Khasra No. 3191(0-02-24 hect.) and 3192 (0-00-48 hect), khata No. 144, Khatauni No. 37 situated in village Jawal, Tehsil Amb, purchased by the respondent vide sale deed No.58 dated 28.11.98. 3. Feeling aggrieved with order dated 03.12.2003, passed by the District Collector, Una, the present respondent filed three separate appeals No.42/2004, 43/2004 and 44/2004, before the Ld. Commissioner, Kangra Division, mainly on the grounds that the order dated 3.12.2003, passed by the trial court is against the law and facts; that the Id. Collector has not even considered the application of the appellant for leading additional evidence along with the certified copy of order dated 6.3.2003, in a similar connected case between the same parties where in the appellant had become full owner of the disputed land in the State of Himachal Pradesh even before coming into operation of the Act. Further that the Id. Further that the Id. trial court has laid to much of emphasis on the aims and objectives of the trust and has not gone into the facts that the sales executed by the vendors were not pre-conditional sales and that the appellant (herein respondent) had become an agriculturist of the State prior to coming into effect of the Act. After providing proper opportunity of being heard, the Ld. Commissioner accepted all the three appeals vide his common/impugned order dated 3.10.2011, observing as follows:- "I have gone through the record and I am of the opinion that the order dated 03.01.2003 passed by the Deputy Commissioner, Una has become final and successor Deputy Commissioner cannot take a different view in respect of similarly situated properties of the appellant. As such the impugned order dated 3.12.2003 passed by the Deputy Commissioner, Una in case No.28/2001, 29/2001 and 30/2001 is not sustainable in the eyes of law and is accordingly set aside." 4. Dis-satisfied with the aforesaid orders dated 3.10.2011, passed by the Ld. Commissioner, Kangra Division, the State of Himachal Pradesh through Collector, Una, has filed the present three revision petitions. As all these revision petitions arise out of common orders and the subject matter of these petitions being the same, as such, these have been taken together for consideration and disposal. 5. I have heard the Ld. Counsel for both the parties, Ld. D.A. (Rev) appearing on behalf of petitioner State has reiterated the grounds of the revision petitions. It has been argued that the impugned orders are against facts and law and are biased, vague, ambiguous and thus liable to be quashed and set aside. That the Ld. Commissioner has misinterpreted Section 118 of the Act, as per, which, transfer of land in favour of non-land has to be vested in the State Government free from all encumbrances. However, such non-agriculturists can purchase land only after seeking prior approval of the State Government. That the present respondent is neither an agriculturist nor a tenant and does not cultivate and either by themselves or through their tenants. Further that in the instant case no such permission has been obtained by the respondent, being non-agriculturist, to purchase land in dispute, and as such, the District Collector has rightly ordered investment of land in dispute, in favour of the State Government as per provisions of the Act. 6. In reply, the Ld. Further that in the instant case no such permission has been obtained by the respondent, being non-agriculturist, to purchase land in dispute, and as such, the District Collector has rightly ordered investment of land in dispute, in favour of the State Government as per provisions of the Act. 6. In reply, the Ld. Counsel for the respondent reiterated the grounds taken before the Ld. Commissioner, Kangra Division in Appeal, and argued that the Ld. Commissioner has set aside the orders of the Ld. District Collector, after due application of mind. He further argued that as per provisions of the Act, Id. District Collector, Una had to complete the proceedings within a period of six months, but he failed to do so and has not obtained, the necessary approval of the Commissioner to continue the proceeding and as such the entire proceedings carried by him are without any jurisdiction and as such his orders are void ab initio. He further argued that the respondent has purchased land in the State prior to the commencement of the Act, and as such enjoys the status of an agriculturist i.e. Sale deeds No. 1132, 1133 dated 3.1.1974, being prior to the Act which Statute was enacted on 21.2.1974). Ld. Counsel for the respondent further stressed that in a similar case the District Collector, Una, vide order dated 3.1.2003, has dropped the proceedings against the respondent, but the contrary stand has been taken in the present cases and as such the Ld. Commissioner, Kangra has rightly pointed out this fact and set aside the orders of the District Collector, Una. Lastly, he urged that there is no illegality or irregularity in the impugned orders passed by the Ld. Commissioner, which warrant interference by way of revision and as such the present revision petitions may be dismissed in the interest of justice. 7. I have considered the arguments advanced on behalf of both the parties and carefully gone through the record of the courts below, Ld. Commissioner, vide impugned order dated 3.10.2011, has set aside the orders dated 3.12.2003, passed in three cases referred to above, by Ld. District Collector, Una, only on the ground that order dated 3.1.2003 passed by the Deputy Commissioner, Una has become final and the successor Deputy Commissioner cannot take a different view in respect of similarly situated properties of the appellant/present respondent. District Collector, Una, only on the ground that order dated 3.1.2003 passed by the Deputy Commissioner, Una has become final and the successor Deputy Commissioner cannot take a different view in respect of similarly situated properties of the appellant/present respondent. From the perusal order dated 3.1.2003, passed by the Deputy Commissioner, Una, it is clear that these orders have been passed qua land purchased before the commencement of the Act, whereas the orders dated 3.12.2003, relate to properties purchased after the commencement of the Act, hence it is wrong to conclude that successor Deputy Commissioner cannot take a different view. Moreover, the orders dated 3.1.2003, do not confer the status of an agriculturist on the present respondent as although admittedly Sale deeds No. 1132 and 1133 were entered into before commencement of the Act, the said sale deeds related to ownership of property by Surga Sankirtan Mandli, and as has been held by Deputy Commissioner, Una, in order dated 3.12.2003, such purchase cannot be construed to be for agricultural purposes. In fact for the purpose of provisions of Section 118 of the Act, it has to be ascertained as to whether as person in whose favour land has been/is being transferred is an agriculturist as defined in Section 2(2) read with Section 2(4)(5)(10) of the Act and Section 4(9) of the Himachal Pradesh Land Revenue Act, 1994 or not. No doubt the present respondent had purchased land in the State prior to the commencement of the Act, but such purchase does not automatically confer on the respondent the status of an agriculturist. It appears that the Id. Commissioner, Kangra Division, has overlooked this aspect while passing the impugned order. Hence, the impugned orders are set aside being not based upon the factual position. 8. Further, from perusal of photo copy of jamabandi/Missal Ishtemal (year 1996-97) available at page 85 of the case file No.28/2001 of the District Collector, Una and photo copies of girdawari register available at page 87-89 of said the file, it reveals that land bearing khasra No. 3193 (old No.3193 (old No.3456 min), measuring area 0-02-75 hect., in Mauza Jawal, District Una, which is owned and possessed by the respondent, is classified as "Barani Doyam". However, the Id. However, the Id. District Collector, Una has taken these facts into consideration while passing the order dated 3.12.2003, but he has not given reasons as to why the respondent does not fall under the definition of an agriculturist, whereas there is an entry in the record of rights which clearly shows that the land owned by the respondent is classified as Barani Doyam". It may also be possible that the respondent is utilising the land for purpose of 'sarai', and as a 'kitchen garden', the issue is whether such purchase prior to the Act, confers status of an agriculturist. Merely saying that the objective of the respondent being a religious body, cannot be to pursue agriculture, does not suffice the purpose, as it has to be ascertained either from the record and from the spot position, as to whether the respondent is an agriculturist or not? It would be appropriate to mention here that there are certain other such religious/spiritual societies like, "The Radha Soami Satsang Beas, Dera Baba Jaimal Singh Beas, Punjab", which have attained the status of agriculturist of the State, although with due permission under section 118, therefore, yardsticks of such judgment need to be objective. Hence, the orders dated 3.12.2003, of the District Collector, Una passed in aforesaid three cases, are also hereby set aside and the cases are remanded back to the District Collector, Una with the direction to ascertain as to whether the present respondent is an agriculturist or not and then proceed further to decide the matter in accordance with law. It is also well to remember that any purchase prior to the commencement of the Act, does not confer automatic status of an agriculturist. The contextual situation and entries in revenue records would be important in the determination of such an issue. The Explanation (1) to Section 118 along with Explanation (1)(ii) should be taken into consideration. As per the amendment Act No.6 of 1995, a vide definition has been given to the word Land, and clause (ii) of Explanation 1, define land' as follows:- Land which is a site of a building in a town or a village and is occupied or let out for agricultural purposes or purposes subservient to agriculture [but shall not include a built up area in the municipal area]. 9. Orders of remand be communicated to the parties. 9. Orders of remand be communicated to the parties. The records of the courts below be returned and file of this court be consigned to the record room after due completion.