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2017 DIGILAW 906 (HP)

Rajinder Mohan v. State Of H. P.

2017-08-03

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this writ Petition, the Petitioner has prayed for the following reliefs: "(A) That this writ Petition may kindly be allowed and the order passed by the Id. Financial Commissioner dated 24.07.2009 be set aside in the light of justice. (B) That Petitioner may kindly be allowed to resume the whole land owned by the Petitioner but is under tenancy, which was already reserved by the father of the Petitioner under going LR-X proceeding and was ordered by the competent authority on 15.10.1976. (C) the entire record pertaining to the case may kindly be summoned for the kind perusal of this Hon''ble Court. (D) That the Petition may kindly be allowed with cost. (E) Any such other or further orders which this Hon''ble Court may deems just and proper in the light of facts and circumstances of the case may also kindly be passed." 2. The case of the Petitioner is that he joined Armed Force on 21st August, 1963 and was discharged from service on 1st of February, 1991. His father was owner of land when H.P. Tenancy and Land Reforms Act came into force, whereas the Petitioner was serving in the Armed Forces at that time. According to the Petitioner, during this period his father got his inheritable share reserved under the LR-X proceedings to the extent of five acres as per the provisions of H.P. Tenancy and Land Reforms Act (Hereinafter referred to as the ''Act'' for short) and order of reservation was made by the competent authority on 15.10.1976 in the Jamabandi for the year 2001-02 as is evident in the note in the jamabandi (Annexure P-1). After his retirement, he moved an application before the Land Reforms Officer, Palampur in form LR-V seeking resumption of the land which was reserved by his father but was under tenants. After holding an inquiry, Land Reforms Officer passed an order on 04.11.1991, vide which, he allowed the Petitioner to resume the land measuring 0-03-39 hectares from Chikla, 0-04-64 hectares land from Ratto, 008-71 hectare land from Raghu and 0-08-29 hectares land from Keso Ram, Ishwar Dass, Hoshiar Singh, Jaru Ram, Bihari Lal and Dhani Ram sons of Bartu, who were tenants on the said land. 3. Appeal filed by him against the said order was dismissed by the Collector (ADM Kangra). 3. Appeal filed by him against the said order was dismissed by the Collector (ADM Kangra). On a further Appeal filed by him before the Divisional Commissioner, Kangra, the said authority remanded the case back to the Land Reforms Officer. Order of remand so passed by the Divisional Commissioner, Kangra was challenged before learned Financial Commissioner (Appeals), who set aside the order passed by the Divisional Commissioner and upheld the order passed by the Land Reforms Officer. 4. Feeling aggrieved by the order so passed by the learned Financial Commissioner (Appeals), the Petitioner has filed this writ Petition. 5. In his reply filed to the writ Petition by respondent No. 3, the said respondent while denying the averments made in the Petition stated that the Petitioner was entitled to succeed only to the extent of 1/8th share of estate of his father alongwith his three brothers, three sisters and mother and he was not entitled to 1 /4th share as was being claimed by the Petitioner. As per respondent No. 3, landlord can resume to the extent of inheritable share only and as such, there was no infirmity with the order passed by the Land Reforms Officer. 6. I have heard learned Counsel for the parties and also carefully gone through the pleadings of the parties. 7. A perusal of the impugned order so passed by the learned Financial Commissioner demonstrates that the property of father of the present Petitioner, namely, Madan Mohan, was inherited by his four sons. Learned Financial Commissioner also took note of the fact that the Petitioner''s father had four sons, three daughters and a wife at the time of his death and he was suffering a disability and was entitled for protection provided under Sub Section 8 of Section 104 of the Act during his lifetime. Learned Financial Commissioner took note of Section 104 (8)(d) of the Act which provides that father of a person who is serving in the Armed Forces shall reserve land up to the extent of the inheritable share of such a member of the Armed Forces on the date of his joining the Armed Forces and same was to be declared by his father in the prescribed manner. Learned Financial Commissioner thereafter held that Petitioner was entitled to succeed only 1 /8th share alongwith his three brothers, three sisters and a mother. Learned Financial Commissioner thereafter held that Petitioner was entitled to succeed only 1 /8th share alongwith his three brothers, three sisters and a mother. It was further held by the said Authority that protection could be granted to the extent of ''inheritable share'' as per Act as the protection was not to what actually could be inherited by the person concerned. On these bases, it was held by the learned Financial Commissioner that as the ''inheritable share'' of the Petitioner was only 1/8th, therefore, there was no infirmity in the order passed by the Land Reforms Officer who had ordered resumption of the land of the Petitioner to the extent of ''inheritable share''. The relevant extract of the order passed by the learned Financial Commissioner is quoted herein below. "Section 104(8)(d) provides that the father of a person who is serving in the Armed Forces shall reserve land up to the extent of the inheritable share of such a member of the Armed Forces on the date of his joining the Armed Forces and is to be declared by his father in the prescribed manner. The respondent was entitled to succeed only to the extent of 1/8th share of the estate of his father alongwith his three brothers, three sisters and mother. But later on in this case he is alleged to have become entitled of 1/8th share as the land was bequeathed by the father to the four sons only. There is nothing on record when the father of the respondent expired. The father could indeed protect the respondent''s share (when he was in armed forces). Such protection could be to the extent of "inheritable" share only as per the Act, which does not take into account as to what is actually inherited. For example, actual inheritance could have been more in case the other brother do not inherit for any reason. But the ''inheritable'' share, which the Act provides for, would remain the same. The respondent can resume the land from his tenants to the extent of his ''inheritable'' share only. The Land Reforms officer had rightly ordered resumption of half of the land from his tenants and in respect of the remaining half of the land, conferred proprietary rights to the tenants. It is also evident from the file of the Land Reforms Officer that both the Petitioners as well the respondent agree to such a division. The Land Reforms officer had rightly ordered resumption of half of the land from his tenants and in respect of the remaining half of the land, conferred proprietary rights to the tenants. It is also evident from the file of the Land Reforms Officer that both the Petitioners as well the respondent agree to such a division. The respondent has acknowledged the tenants and stated that half the land may be resumed and the remaining half share may be given to the tenants as per the law. The respondent''s statement is at page 19/20 of the Land Reforms Officer''s file. The Land Reforms officer had ordered accordingly. In the Appeal before the Collector (ADM) as well as before the Commissioner, the respondent has prayed for the resumption of the entire land, which is contrary to what the respondent himself agreed before the Land Reforms Officer. The Collector has rightly held that under Section 104 of the Act, the respondent is not entitled to resume more than half of the tenancy land as the respondent could not prove that tenancy was created within a period of six months before his joining the Armed Forces or during his service period. The Commissioner has apparently not taken into consideration all the provisions of the Act." 8. It could not be disputed by learned Counsel for the Petitioner at the time of arguments that when Petitioner joined Armed Forces and at the time when H.P. Tenancy and Land Reforms Act came into force, the inheritable share of Petitioner was only 1/8th qua the property of his father as his father was having four sons, three daughters and a wife. In this view of the matter, when inheritable share of the Petitioner, as is envisaged in Section 104(8)(d) of the Act was 1/8th, there cannot be said to be any infirmity with the order passed by the learned Financial Commissioner who has upheld the order passed by the Land Reforms Officer who has ordered the resumption of the land in favour of the Petitioner to the extent of his inheritable share i.e. 1/8th share. The contention of learned Counsel for the Petitioner that the Petitioner was entitled to more share in view of the fact that his father had bequeathed the entire property only to his sons, in my considered view, does not renders the order passed by learned Financial Commissioner bad in law because protection as is envisaged in Section 104(8)(d) of the Act is only of ''inheritable share'' and not of ''actually inherited share''. The protection so envisaged is in favour of a person who is serving in armed forces at the relevant time. It could not be disputed by learned Counsel for the Petitioner that inheritable share of the Petitioner, as is envisaged in Section 104(d)(d) of the Act, stood resumed in his favour by the Land Reforms Officer. 9. Therefore, in view of above discussion, in my considered view, as there is no infirmity with the order passed by the learned Financial Commissioner and further as land of the Petitioner duly stood resumed in his favour, as per his inheritable share, as is envisaged in Section 104(8)(d) of the H.P. Tenancy and Land Reforms Act, there is no merit in the present Petition and the same is accordingly dismissed. Petition stands disposed of in above terms, so also pending miscellaneous application(s), if any. No orders as to costs.