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2017 DIGILAW 666 (HP)

Ranu Ram v. State of H. P.

2017-06-14

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Original petitioner Ranu Ram has preferred this appeal against the judgment passed by learned Single Judge of this Court on September 1, 2016 in CWP No. 3904 of 2015 filed the attestation of Mutation of the land which is subject matter of dispute in the present lis may be cancelled. 2. The grouse of the petitioner as has been brought to the Court in these proceedings in a nut shell is that he is owner in possession of land bearing Khata Khatauni No. 7/11-12 Kita 25 measuring 33-12 Bigha to the extent of ¼ share, Khata Kahtauni No. 12/18, Khasra No. 243 to the extent of 1/32 share situate in village Jadhyak Pargana Chail, Tehsil Kandaghat, District Solan, Himachal Pradesh. The Assistant Collector Ist Grade, Kandaghat, District Solan allegedly entered respondents No. 3 and 4 as coowners in the aforesaid land entered in Khata Khatauni No. 7/12 to the extent of 60/120 shares and Khata Khatauni No. 12/18 to the extent of 30/960 share. The gift of the land by one Kanshi Ram vide gift deed No. 62, dated 13.7.1996 in favour of Jaman Lal, the predecessor-in-interest of respondent No. 4 Sandeep in the writ petition and also in the present appeal and attestation of Mutation No. 81 on the basis thereof in the name of said Jaman Lal is stated to be illegal as said Shri Jaman Lal was not the citizen of India, hence not competent to acquire the land in question by way of gift. Similarly the execution of ‘Will’ by Janki wife of Kanshi Ram aforesaid registered vide Mutation No. 23 dated 24.1.1969 in favour of respondent No. 3 Tulsi Ram is also stated to be illegal as said Shri Tulsi Ram was also not the citizen of India. In this regard, it was pleaded that as per the Constitutional provision a person having domicile in the territory of India at the time of commencement of the Constitution could have only acquired the citizenship of India. Also that a person born in the territory of India and whose parents were born in the territory of India and who was ordinarily residing in the territory of India for a period not less than five years immediately preceding the commencement of Constitution can only be said to be the citizen of India. Also that a person born in the territory of India and whose parents were born in the territory of India and who was ordinarily residing in the territory of India for a period not less than five years immediately preceding the commencement of Constitution can only be said to be the citizen of India. Respondents No. 3 and Jaman Lal being Nepali nationals having not resided within the territory of India for five years preceding the commencement of the Constitution were not the citizen of India and as such could have not acquire the land in question by way of a gift/Will. 3. The complaint made by the petitioner against them was not gone into in accordance with law and the conclusion drawn by respondents No. 1 and 2 that respondents No. 3 and 4 entered the territory of India before the commencement of the Constitution is contrary to the factual position. 4. The respondents on entering appearance have contested the writ petition. In preliminary, the maintainability of the writ petition was contested on the grounds, inter-alia, that disputed questions of facts and law are involved and the same cannot be gone into in the exercise of powers vested under Article 226 of the Constitution of India. The writ petition was also stated to be barred by delay and latches. The respondents No. 3 and 4 having resided in the State of Himachal Pradesh prior to the year 1950 and recorded owners in possession of the land in question in the year 1966 are citizen of India and their citizenship as well as entries qua the land in question showing them owners in possession thereof cannot be said to be illegal or erroneous. The petition in view of the opinion sought from the Law department and received vide Annexure R-1 is stated to be not maintainable and has, therefore, been sought to be dismissed. 5. The petition in view of the opinion sought from the Law department and received vide Annexure R-1 is stated to be not maintainable and has, therefore, been sought to be dismissed. 5. On merits, while denying that the predecessor-in-interest of respondents No. 3 and 4 were not citizen of India at the time when they acquired the land in question it was submitted that matter was got inquired into through Revenue agencies and the complaint made by the petitioner against the respondents on inquiry was found to be incorrect because during the course of inquiry it transpired that the predecessor-in-interest of respondents No. 3 and 4 had been living in revenue estate Jadhyak, Tehsil Kandaghat, District Solan prior to the freedom movement i.e. commencement of Constitution of India on 26.1.1950. Therefore, it was a case of acquiring deemed Indian nationality by them and as such acquiring the land by them by way of gift deed on 13.7.1966 and the ‘Will’ on 24.1.1969 was not violative of Section 118 of the H.P. Tenancy and Land Reforms Act. 6. The stand of respondent No. 3 in separate reply filed to the writ petition is that they were citizen of India and as such rightly acquired the land by way of gift and also ‘Will’ executed by Kanshi Ram and his wife, the previous owners thereof. 7. Rejoinder to the reply filed on behalf of respondents No. 1 and 2 was also filed. 8. Learned Single Judge on appreciation of the record and the pleadings of the parties, has arrived at a conclusion that the predecessor-in-interest of the private respondents were ordinarily residing within the territorial limits of India well before the commencement of the Constitution and as such, acquired the Indian nationality. In view of the stand taken by the respondent-State in reply to the writ petition, learned Single Judge was of the opinion that disputed questions of facts in the writ petition cannot be allowed to be adjudicated or gone into in writ jurisdiction. The petition, as such, was dismissed leaving it open to the petitioner to resort to appropriate remedy available to him in accordance with law, if so advised. 9. The petition, as such, was dismissed leaving it open to the petitioner to resort to appropriate remedy available to him in accordance with law, if so advised. 9. The legality and validity of the judgment passed by learned Single Judge has been questioned on the grounds, inter-alia, that since respondents No. 3 and 4 have failed to satisfy the mandate and dictate of Article 5 of the Constitution of India and as per their own admission the land in question came to be possessed by them in the year 1965-66, they cannot claim themselves to be the citizen of India. The disputed facts are not involved in the present lis and as such, the conclusion drawn by learned Single Judge is stated to be not legally sustainable. 10. Having gone through the rival submissions and also the record of this case, it would not be improper to conclude that the disputed facts cannot be gone into in writ jurisdiction and the aggrieved party rather, if so advised, may get the same adjudicated in appropriate proceedings including in a civil suit in accordance with law. We can draw support in this regard from the judgment of Principal Bench of this Court in Parkash Chand versus The Sub Divisional Collector and others, Latest HLJ 2012(HP) 943. 11. Adverting to the facts of this case, respondents No. 3 and 4 admittedly are co-owners of the land entered in Khata Khatauni No. 7/12 and Khata Khatauni No. 12/18 situate in village Jadhyak Pargana Chail, Tehsil Kandaghat, District Solan, Himachal Pradesh. They have acquired this land by way of gift executed in favour of Jaman Lal, the predecessor-in-interest of respondent No. 4 on 17.9.1966 by one Kanshi Ram and his wife Smt. Janki in favour of respondent No. 3 vide registered ‘Will’ dated 24.1.1969. Mutation of the land in question was attested and sanctioned in their favour on the basis of gift deed and also the ‘Will’ in question. The petitioner, no doubt, had made written complaint and the matter was got inquired into by the revenue department, Government of Himachal Pradesh. Mutation of the land in question was attested and sanctioned in their favour on the basis of gift deed and also the ‘Will’ in question. The petitioner, no doubt, had made written complaint and the matter was got inquired into by the revenue department, Government of Himachal Pradesh. The Deputy Commissioner, Solan on the basis of the inquiry got conducted through Sub Divisional Magistrate, Kandaghat, District Solan and after obtaining the opinion of the Law department to the Government of Himachal Pradesh through the department of Revenue had informed the office of the Chief Minister, Himachal Pradesh vide letter dated 18.5.2015 Annexure-B to the writ petition that Jaman Lal (predecessor-in-interest of respondent No. 4) and Tulsi Ram respondent No. 3 were living in the State of Himachal Pradesh prior to 1950 and that there was no question of violation of the provisions contained under Section 118 of H.P. Tenancy and Land Reforms Act, 1972 in the matter of acquiring the landed property by both of them in Revenue estate Jadhyak, Tehsil Kandghat, District Solan. The inquiry report submitted by the Sub Divisional Magistrate, Kandaghat is Annexure-A. The perusal thereof reveals that the predecessor-in-interest of the private respondents were residing in district Solan prior to 1950 which is surfaced on record from the statements of old and aged persons, one of them was even 84 years old recorded during the course of inquiry. The legal opinion of the Law department is Annexure R-1 (colly) placed on record by respondents No. 1 and 2 with reply to the writ petition. No doubt, the land in question came to be occupied by the private respondents in the year 1966 and 1969 and they started cultivating the same thereafter, however, on this score it cannot be said that they were not ordinarily residing within the territorial limit of India prior to the commencement of the Constitution in the year 1950. 12. Therefore, in view of the specific stand taken by the respondent-State the private respondents and their predecessor-in- interest having been residing prior to 1950 and prior to the commencement of the Constitution of India had acquired the Indian citizenship and as such, were competent to acquire the land in question the Mutation thereof has, therefore, been rightly sanctioned and attested in their favour. True it is, that as per the petitioner’s case there is no evidence that the private respondents had entered into the territory of India and started residing in the State of Himachal Pradesh prior to commencement of the Constitution of India i.e. 1950, hence are not citizen of India. However, the reply to the writ petition filed on behalf of the respondent-State renders such facts raised in the petition highly undisputed, hence cannot be gone into in writ jurisdiction. Learned Single Judge has, therefore, not committed any illegality or irregularity while dismissing the writ petition leaving it open to the petitioner to resort to appropriate remedy i.e. including filing a civil suit, if so advised. 13. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed.