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2017 DIGILAW 737 (HP)

Tejinder Singh v. State Of Himachal Pradesh

2017-06-29

NARINDER CHAUHAN

body2017
ORDER Narinder Chauhan, I.A.S., Financial Commissioner (Appeals) —These revision petitions have been preferred under Section 118(3-C) of the Himachal Pradesh Tenancy &Land Reforms Act, 1972 (hereinafter referred to as ''the Act''), against the order dated 15.01.2014, passed by the Commissioner, Shimla Division in Case No. 241/2001, 242/ 2011,243/2001 and 244/2011, whereby the Ld. Commissioner has dismissed the aforesaid tour appeal of the present petitioner by upholding the order dated 24.09.2011, passed by eld. District Collector, Sirmaur, in case No.26/2004, 27/ 2004,19/2004 and 20/2004. The nature, facts, circumstances and grounds of all these revision petitions are similar and as such the same are hereby being disposed off collectively. 2. Briefly stated, the facts of the revisions are that on the report of Tehsildar, Paonta Sahib, District Sirmour, the District Collector initiated proceedings against the present petitioner for violation of the provisions of Section 118 of the Act, for reasons of purchasing land bearing khasra No. 493/468/1, measuring 0-1 bigha, Khasra No.5021 418/7, measuring, 0-13 bigha, Khasra No.502/418/5 measuring 0-4 bighas and Khasra No.497/418 measuring 0-6 biswas, total kita 4 area measuring 1-4 bighas, situated in Mauza Bhuppur, Tehsil Paonta Sahib, without seeking prior approval of the State Government. After processing the matters in accordance with law, the District Collector, Sirmour, vide his order dated 20.09.2011, passed in four Cases No.26/2004, 27/2004, 19/2004 and 20/2004, ordered vestment of the aforesaid land in favour of the State Government for reasons of violation of Section 118 of the Act and petitioner being an non-agriculturist. 3. Feeling aggrieved with the orders of the District Collector, Sirmaur, the present petitioner filed four appeals (No.241/2011,242/2011,243/2011 and 244/2011) before the Ld. Divisional Commissioner, Shimla, mainly on the grounds that the impugned orders are both against fact and law; that the petitioner falls under the exempted category under Sub-Section (2) of Section 118 of the Act, being a village artisan and a landless labourer, residing in Paonta Sahib since 1970; further the sellers have not been made party and the proceedings should have been concluded by the Collector within a period of six months. After hearing the matter and having gone through the record of the Court below, the Ld. After hearing the matter and having gone through the record of the Court below, the Ld. Commissioner, Shimla Division, vide impugned order dated 15.1.2014, dismissed all the appeals, observing that all the issues raised by the petitioner have been adequately addressed by the Trial Court by way of a well reasoned order and the citations submitted have also been discussed and not found relevant to the instant proceedings. Hence, the present revision petitions. 4. I have heard the learned counsel for the petitioner, who also filed written submissions and the Id. District Attorney (Rev) for the State/respondent. The Ld. Counsel for the petitioner, while reiterating the grounds of revision argued that the impugned orders of the Ld. District Collector are without jurisdiction as the same have been passed after expiry of limitation prescribed in the Act, for conclusion of proceedings. In support of his contentions the Ld. Counsel cited UOI v. C.L.Jain Woolan Pvt. Ltd. Delhi High Court; Popat Bahiru Goverdhane v. Special Land Acquisition Officer; Supreme Court-CA No.6976/2013, 2015 (6)SCC 412 (para 46 to 53 and 58). Ld. Counsel further objected that the vendors were also necessary party in the proceedings, but the Ld. Collector has even not bothered to issue any notice to them and has proceeded without association impleading them as a necessary party. Further, no inquiry has been conducted by the Collector, before passing the vestment orders and thus both the Courts below have failed to apply the provisions of law and have passed non-speaking orders. In support of his contention the Ld. Counsel has cited 2013(1)SLC.203 (para-11) and 2014 (2) SLC-835 (Para 10). Ld. Counsel further added that father of the petitioner had purchased land in the year 1984, and thereafter the petitioner has purchased the land in the year, 1993 and has been working as a landless labourer and village artisan in Paonta Sahib, since 1970 That they were covered under the categories as exempted under Section 118 (2) clause (c), of the Act. The Ld. Counsel further averred that the evidences and witnesses produced by the petitioner in support of his claim, as well as the provisions of the Act, have n been properly appreciated by the Court below and thus the orders passed by the Collector, as well as by the Divisional Commissioner are against the facts and law. To support h contention the Ld. To support h contention the Ld. Counsel cited, 2016(6)SCC 725, 2015 (12) SCC 179 , AIR 2008 S.C. 179 and L.HLJ 2013 HP (Full Bench) 1157. 5. Ld. District Attorney (Revenue) appearing for the State, argued that there are concurrent finding of both the Courts below, which are based on a proper appreciation of facts and law. Ld. District Attorney further argued that the petitioner has failed to produce any cogent material in support of his contention that he is a "Village Artisan" and is entitled for exemption under the provisions of Section 118 of the Act. Ld. District Attorney further added that the District Collector, has rightly ordered the vestment of land in question being transferred in favour of a person who is not an agriculturist of the State, without seeking prior approval of the State Government as per requirement of the provisions of Section 118 of the Act, which has further been upheld by the Divisional Commissioner, Shimla. He further contended that in the instant case the District Collector, has sought extension of the time limit of six month prescribed in the Act for conclusion of the proceedings under Section 118, from the Divisional Commissioner and moreover once the Divisional Commissioner has upheld the order of the Court below, the requirement of the Act to seek approval of the higher authority to continue proceedings beyond the time limit prescribed in the Act, are deemed to have been fulfilled/allowed. Lastly, the Ld. District Attorney, argued that since there is no illegality or irregularity in the orders of Courts below, the revisional jurisdiction cannot be exercised by this Hon''ble Courts. 6. I have considered the arguments advanced by the Id. counsel for petitioner and the Ld. District Attorney (Revenue) and have gone through records of the Courts below. The present petitioner is a non-agriculturist of the State is an admitted fact and has not been contested by the petitioner before this Court. The petitioner has mainly stressed the issue that being a "village artisan" his case is under the exemption provided under clause (c), of sub-Section (2), of Section 118 of the Act and he has not violated any provision of Section 118 of the Act. The petitioner has mainly stressed the issue that being a "village artisan" his case is under the exemption provided under clause (c), of sub-Section (2), of Section 118 of the Act and he has not violated any provision of Section 118 of the Act. No doubt, clause (c) of sub-Section 2 of Section 118 provides exemption to village artisan from the provisions of sub-Section (1) of said Section, but the term; village artisan was not defined in the Act till 2012. In the year 2012 the principal Act has further been amended vide Act No. 34 of 2012 (the Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 2010} and after clause (18) of Section 2 of the Act and a new clause (18-A) has been inserted, defining therein the term "village artisan" as follows:- "(18-A). "village artisan" means a person who does not hold any agricultural land and whose principal means of livelihood is production or repair of traditional tools, implements and articles or things used for agriculture purposes or purposes ancillary thereto and also a person who normally earns his livelihood by practicing a craft either by his own labour or by the help of the labour of the members of his family in the rural area and whose annual house hold income does not exceed the income limit fixed for the persons living below poverty line."No doubt, the provisions of Act 34 of 2012 cannot be enacted/ implemented retrospectively. In the instant case, from the perusal of the record of trial Court, it is clear that the present petitioner has failed to produce any cogent documentary evidences in support of his claim to be a village artisan. Even, the copies of sale deed available on record do not disclose such a status of the petitioner. From a further perusal of the record, the witnesses, whose affidavits were furnished by the petitioner in support of his claim, have denied this fact in their statement during cross examination, before the trial Court. Further, there is a copy of Shajra Nasab (pedigree table) available on the record of trial Court in which the caste of the petitioner has been shown and ''Khatri (Raghuvanshi)'' and not as ''Lohar''. Hence, the claim of the petitioner to be a village artisan, is not acceptable and the Id. District Collector, Sirmaur has rightly rejected the same which has further been upheld by the Id. Hence, the claim of the petitioner to be a village artisan, is not acceptable and the Id. District Collector, Sirmaur has rightly rejected the same which has further been upheld by the Id. Divisional Commissioner. 7. As far as the claim of the petitioner that the District Collector has passed the impugned order without jurisdiction and having been passed after expiry of the period prescribed in the Act is concerned, the perusal of record shows that the District Collector, Sirmaur had sought extension from the competent authority i.e. Divisional Commissioner, Shimla and the extension of six months was duly granted by the Id. Commissioner on 5.1.2011. No doubt, the District Collector, has decided the matter after lapse of extension provided by the Id. Divisional Commissioner, but to that extent, I agree with the arguments advanced by the Id. District Attorney (Rev) and once the Id. Commissioner, had dismissed the appeal, against the order so passed by the District Collector, the extension is deemed to have been granted. Hence, this plea of the petitioner is not acceptable. 8. However, it has been observed that in the instant case some of the transactions have found to be made prior to 1988, when the provisions regarding vestment of land in favour of the State Government were for the first time introduced in the Act. Hence, such lands cannot be ordered to be vested in favour of the State Government. Further, it has been averred that the land in question falls within urban area, thus this fact is also required to be ascertained, because prior to 1988 there was a provision in Section 118 of the Act, itself under which land could have been purchased within the limits of municipal corporations, municipal committees, notified area committees for any one of the purposes; i.e. for residential purpose an area upto 500 square meters or for establishment of shop or commercial establishment or an office, upto the limit of 300 square meters. 9. Further it has been observed that a number of cases are coming in appeal or revision wherein the Tehsildars/Naib-Tehsildars have registered the ''land transfer deeds'' in favour of non-agriculturists without asking them to seek the necessary permission from the State Government as per provisions of Section 118, despite a specific bar in sub-Section (3) of the said Section. 9. Further it has been observed that a number of cases are coming in appeal or revision wherein the Tehsildars/Naib-Tehsildars have registered the ''land transfer deeds'' in favour of non-agriculturists without asking them to seek the necessary permission from the State Government as per provisions of Section 118, despite a specific bar in sub-Section (3) of the said Section. Thereafter, proceedings under Section 118 of the Act, I have been initiated against such non-agriculturists, whereas such non-agriculturists have bonafidely got the sale deeds registered after payment of stamp duty and registration charges payable as per law. In other words, the non-agriculturists are facing legal proceedings due to negligence on the part of the Revenue Officers and had the Revenue Officers refused to register the land transfer deeds of such non-agriculturists at the relevant point of time, they would have either obtained the necessary permission from the State Government as per requirement of Section 118 of the Act or would have not got the land transferred in their favour. In the instant case, also the Revenue Officers exercising the powers of Sub-Registrar has registered sale deeds vide which parcels of land have been transferred in favour of the petitioner. The record shows that the petitioner has neither produced any forged documents to establish his status as an agriculturist nor he has suppressed any fact from the Sub-Registrar concerned or has entered into a benami transaction, and thus it was the duty of the Sub-Registrar concerned not to register such sale deeds, rather he should have asked the petitioner either to produce the agriculturist certificate or to seek permission from the State Government. As such, it would not be in the interest of justice to penalize a person who has acted in a bonafide manner, and more so for the negligence on the part of the Government functionaries. Hence, the State Government may consider such cases by taking a policy view for such a bonafide purchaser. 10. Further, Section 118 (3) stipulates that ''No Registrar or Sub-Registrar appointed under the India Registration Act, 1908, shall register any document pertaining to a transfer of land, which is in contravention to Sub-Section (1)''. Hence, the State Government may consider such cases by taking a policy view for such a bonafide purchaser. 10. Further, Section 118 (3) stipulates that ''No Registrar or Sub-Registrar appointed under the India Registration Act, 1908, shall register any document pertaining to a transfer of land, which is in contravention to Sub-Section (1)''. Section 118 (3), actually casts a duty on a revenue officer or Registrar/Sub-Registrar under the Indian Registration Act, 1908, before whom a document pertaining to land is presented for registration, or being presented, to given an opportunity of being heard and holding an enquiry etc. to determine whether a violation has taken place or not. 11. In view of the above the revision petitions are accepted and orders dated 15.1.2014 passed by the Ld. Divisional Commissioner, Shimla, in cases referred to above, and order dated 24.09.2011, passed by the Ld. District Collector, Sirmaur, ordering vestment of land in question are set aside. The case is remanded to Collector, Sirmaur, to examine the matter in view of the provisions of the Act, from time to time. It is further to be examined whether the land in question falls within a Municipal area, at the time of purchase and further whether certain structures existed on the land or whether petitioner is covered under Section 2(7) of the 1972 Act, which excludes from the definition of land all categories of land; which are not occupied as the site of any building in a town or a village, except the one which are occupied or has been let for agricultural purposes or purposes subservient to agriculture. 12. Orders 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.