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2018 DIGILAW 705 (HP)

Om Parkash v. State Of H. P.

2018-04-20

ANIL KUMAR KHACHI

body2018
ORDER Anil Kumar Khachi, I.A.S. - This revision petition under Section 17 of the H.P. Land Revenue Act 1954 (hereinafter referred to as ''the Act''), has been preferred against the order dated 18.6.2015, passed by the Ld. Commissioner, Shimla Division in Case No 250/2011 vide which the Ld. Commissioner has dismissed the revision of the present petitioner by upholding the order dated 19.8.2011, passed by the learned Sub-Divisional Collector, Kandaghat, District Solan, in appeal No. 1/2011, as well as the order dated 20.10.2011, passed by the Ld. A.C. 2nd Grade, Kandaghat District Solan, by case No. 1/2009. 2. Briefly stated, the facts of the case are that on the basis of a report dated 9.4.2009 of the Patwari, Patwar Circle Vakna, and endorsed by the Field Kanungo, the Assistant Collector, 2nd Grade, (AC 2nd Grade), Kandaghat, District Solan, initiated proceedings under Section 163 of the Act, against the present petitioner for encroaching upon Government land bearing Khasra No. 409/4/1, area measuring 0-7 bighas, situated in Mauza Rachhiyana, Tehsil Kandaghat, by raising construction thereon. After processing the matter the AC 2n Grade, vide his order dated 20.10.2010, passing in case No. 01/2009, ordered eviction of the petitioner from the land in question. 3. Feeling aggrieved with the orders dated 26.10.2010, passed by the ac 2nd Grade, Kandaghat, the present petitioner filed an appeal No. 01/2011, before the Ld. Sub-Divisional Collector, Kandaghat, mainly on the grounds that the appellant (present petitioner) is not at al anl encroacher on the land in question and his possession is legal and valid inn the eyes of law; that the revenue entries depicting the State of HP as owner in possession are wrong, illegal, null and void as the land in question is owned and possessed by the appellant (present petitioner) since the items of his ancestor; that in fact, the land question is part of land bearings khasra No. 1, which is recorded in the ownership column as ''Shamlat Deh hasab Rasad Arazi Khewat'' and possessed by the owners of village and same has been wrongly vested in the State under the H P. Village Common Lands Vesting and utilization Act, 1974 and is required to be reverted back to the appellant/villagers. After hearing the parties and having perused the record of the trial court, the Ld. After hearing the parties and having perused the record of the trial court, the Ld. Sub-Divisional Collector, Kandaghat, vide his order dated 19.8.2011 passed in case No. 01/2011, dismissed the appeal of the present petitioner observing that the land in question does not fall under the category of the land to be revered back to the land owners as per the amended provisions of the H.P. Village Common Lands Vesting and Utilization Act, 1974, as amended in 2001. 4. Still dissatisfied, the present petitioner filed a revision petition (No. 250/11, challenging the order dated 19.08/2011 passed by the Ld. Sub-Divisional Collector, Kandaghat, before the Ld. Commissioner, Shimla Division, on the similar grounds as were taken in appeal before the court below. The Ld. Commissioner, dismissed the revision petition vide his impugned order dated 18.6.2015. Hence, the present revision petition. 5. I have heard the Ld. Counsel for the petitioner and the District Attorney (Revenue) who appeared on behalf of the state of H P. The Ld. Counsel for the petitioner argued that the Ld. Courts below have miserably failed to appreciate the evidence and law in its true perspective. He further argued that as per jamabandi for the year 1914-15 till 1945-46 the land bearing khasra No. 4 area measuring 95-15 bighas, on a part of which the present petitioner has construct his residential house, was recorded as "Shamlat Deh Hasab Arazi Khewat" in ownership column of jamabandi and was in recorded possession of "Makbuza Malkan" and this land was earlier vested in the Nagar Panchayat as per provisions Punjab Vilalge Common Land (Regulation) Act, 1961 and thereafter on coming into force the H.P. Village Common Lands Vesting and Utilization Act, 1974, the same was vested in the State Government. Ld. Counsel further added that in the year 2001, the State legislature has amended the H.P. Village Common Lands Vesting and Utilization Act, 1974 and the shamlat land described as "Shamlat Tikka Hasab Rasad Malgujari" or by any such other name in the ownership column of jamabandi ad assessed to land revenue having been continuously recorded in cultivating possession of the Co-sharers so recorded before 26th January, 1950 has been exempted from vestment in the State under the said Act, Ld. Counsel added that land in dispute is also covered under the aforesaid amendment Act and is to be reverted to the co-sharers and alleged that once the aforesaid issue was raised before the AC 2nd Grade, by way of evidence exhibit R-1/A (copy of Missal haquiat), he was not competent to order eviction of the petitioner from the land in dispute, because the issue amounts to question of title. He further added that prima facie evidence exhibit R-1/A was sufficient to prove the contention of the petitioner and moreover the onus was with the State to prove its case. Ld. Counsel further alleged that both the courts below have not taken these facts into considerations despite having been raised before them. He further added that the jamabandi for the year 2003-04 (exhibit PW1/C) relied upon by the Ld. Commissioner is not relevant for the purpose of proper adjudication of the case as the jamabandi for the year 1950 or prior to that was required to be seen. Lastly, referring to judgment dated 23rd march, 2010 delivered by the Hon''ble High Court of H.P. in RSA No. 335 of 1996- Satya Parkash and other v. State of H.P. and others, (Latest HLJ 2010 (HP) 778) , the Ld. "Counsel for the petitioner that his case is securely covered under the amendment Act, 2001 and as such the orders of all the courts below deserve to be quashed and set aside by allowing the present revision petition. 6. In reply, Ld. District Attorney (Revenue) appearing for state, argued that the petitioner had raised all the questions being raised here before the courts below and the same have been answered in detail by all the courts below. He further added that the revenue entries clearly show that the land in question is a government land and thus the trial court has rightly ordered eviction of the petitioner from such land, which order has further been upheld by appellate as well as the revision authority below, Ld. District Attorney (Revenue) further alleged that it was the responsibility of the petitioner to produce all relevant documents before the trial court and nobody has restrained him to do so. Ld. District Attorney (Revenue) further alleged that it was the responsibility of the petitioner to produce all relevant documents before the trial court and nobody has restrained him to do so. Ld. District Attorney further added that there must be some document which can prima facie establish the question of title and in case the petitioner feels that his case is covered under the Amendment Act, of 2001, he should have applied for implementation of such law. 7. In rebuttal the Id. Counsel for the petitioner argued that the entry of jamabandi cannot overrule the provisions of law and law is in favour of the petitioner and the exhibit R-a/A prima facie establishes the claim of the petitioner. 8. On considering the arguments advanced by the Ld. Counsel for petitioner and the Ld. District Attorney (Revenue) for State, the only issue which emerges for adjudication is that whether the land in question is covered under clause (d) of Sub-Section (2) of Section 3 of the H.P. Village Common Land Vesting and Utilization Act, 1974 (Amended in the year 20010 or not? It is does, then clearly no case of encroachment can be made out; if it does''t then the present petitioner has no defence. 9. In order to adjudicate upon the aforesaid issue, it would be appropriate to reproduce provisions of Section 3 of the H.P. Village Common Lands Vesting and Utilization Act, 1974 (Amended upto date), which reads as follows:- "3. 9. In order to adjudicate upon the aforesaid issue, it would be appropriate to reproduce provisions of Section 3 of the H.P. Village Common Lands Vesting and Utilization Act, 1974 (Amended upto date), which reads as follows:- "3. vesting of rights in the State Government:- Notwithstanding anything to the contrary contained in any other law for the time being in force or in an agreement, instrument, custom or usage or any decree or order of any court or other authority all rights, title and interests including the contingent interest, if any, of the landowner in the lands in any estate-(b) Vested in a Panchayat under section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961 as in force in the area added to Himachal Pradesh under section 5 of the Punjab Re-organization act, 1966 (31 of 1966) except lands used reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds within abaci deh or garah deh; (b) described in the revenue records as shamalt taraf, pattis, pannas thola, shamlat, shamlat deh, shamlat chak, shamlet tika or by any such other description and not used according to revenue records for the benefit of the community in the village or a part thereof or for common purposes of the village in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organization Act, 1966; and (c) described in revenue records as shamlat, shamlat deh, shamlat taraf, shamlat chak, patti or by any other such description in the areas, comprised in Himachal Pradesh, immediately before 1st November, 1966; shall stand extinguished and all such rights, title and interest shall vest in the state government free from all encumbrances. (2). (2). The provisions of sub-section (1) of this section shall (c) of that subsection if, before the date of commencement of this Act- (a) partition of such lands is made by the individuals co-sharers through a process of law by a competent court or authority, (b) transfer of such, land is made by the landowner by way of sale, gift or exchange, (c)such land built upon by an inhabitant by raising a residential house or cow-shed, (d) land recorded as "shamlat tika Hasab Rasad Malguzari" or by any other name in the ownership column of jamabandi and assessed to land revenue and has been continuously recorded in cultivating possession of the Co-sharers so recorded before 26th January, 1950 to the extent of their shares therein; Provided that the provisions of this clue shall not be applicable to such lands which have already been put to use by the Government. (2-a). The land reverted back to co-sharers under clause (d) of subsection (2) shall not be transferred by such co-sharers, by way of sale, gift, mortgage or otherwise, during a period of twenty five years from the date of mutation of such land. (2-b). No Registrar or the Sub-Registrar, appointed under (16 of 1908) the Registration Act, 1908, shall register any document pertaining to transfer of such land, which is in contravention of sub-section (2-a) and such transfer shall be void abinitio and the land involved in such transfer, if made in contravention of sub-section (2-a), shall vest in the State Government free from all encumbrances. (3) The State Government shall be liable to pay, and the landowners whose rights have been extinguished under sub-section(1) of this section shall be entitled to receive the amount in lieu thereof at the following rates;- (i) for the land reserved for grazing and other common purpose under clause(a) of sub-section (1) of section 8, five times the annual land revenue including rates and cesses chargeable thereon; and (ii) for the remaining land, fifteen times the annual land revenue including rates and cesses chargeable thereon'' Provided that where the land vested in the State Government under this Act is not assessed to land revenue, the same shall be construed to be assessed as on similar land in the estate and if not available in the estate then in the adjoining estate or estates, as the case may be. (4) The amount paid to a Panchayat under section 7 shall be deemed to be the Sabha Fund and shall such purposes as are mentioned in section 40 of the Himachal Pradesh Panchayati Raj Act, 1968, (19 of 1970). (5) The collector may, by order in writing, at any time after the land vested in the State Government, direct the landowners to deliver possession thereof within 10 days from the service of the order to such person as may be specified in the order. (6) If the landowners refuse or fail without reasonable cause to comply with the order made under sub-section (5), the Collector may take possession of the land and may for that purpose use such force as may be necessary. " It is also pertinent to mention here that clause (d) has been inserted: Sub-section (2) of Section 3 of the H.P. Village Common Lands Vesting Utilization Act. 1974, in the year, 2001 vide Act No. 20 of 2001. From a bare perusal of the provisions of said clause (d), it is clear that the land recorded as "Shamlat Tika Hasab Rasad Mallguzari" or by any other name in the ownership column of jamabandi and assessed to land revenue an has been continuously recorded in cultivating possession of the Co-sharers so recorded before 26th January, 1950 has been exempted from vestment in the State Government under Section 3 of the Act ibid, and has to be reverted back to the co-sharers provide that such land has not benefit of exemption the land has to satisfy all the following four conditions:- (i) should have been recorded as "Shamlat Tika Hasab Rasi Malguzari" or by any other name in the ownership column jamabandi. (ii) Should be assessed to land revenue; (iii) Should have been continuously recorded in cultivating possession of the Co-sharers so recorded before 26th January, 1950; and (iv) Should not have already been put to use by the Government. 10. In the instant case, from the perusal of copy of Missal Haquiat (Exhibit R-1-A) land by bearing Khasra No. 4 area measuring 95-15 bighas, situated in Mauza Richhana, has been recorded as "Shamlat Deh Hasab Rasad Arazi Khewat" in ownership column and "Makbuza Malkan" in the column of possession. 10. In the instant case, from the perusal of copy of Missal Haquiat (Exhibit R-1-A) land by bearing Khasra No. 4 area measuring 95-15 bighas, situated in Mauza Richhana, has been recorded as "Shamlat Deh Hasab Rasad Arazi Khewat" in ownership column and "Makbuza Malkan" in the column of possession. The classification of land has been entered as "Charnad Banjar Kadeem" and in the column of land revenue the entry is "Jaka Shamal Asal Khatajat hai." From the aforesaid entries it is apparent that the land in dispute satisfies the condition Nos. 1 and 4, as referred to in supra. As far the conditions No. 2 is concerned, the entry "Jama Shamlat Asal Khatajat hai". Means that the land in dispute was also assessed to land revenue and the revenue so assessed was added to main khatas of the right holders. But, from the perusal of jamabandi for the years 1953-54, 91957-58, 1965-66, 1970-71 and 1975-76, submitted by the petitioner, the entry regarding land revenue is not continuous and it is surprising to see as to how the land revenue has not been shown in some of the jamabandis. Hence, this issue is not clear. Further in order to satisfy the condition No. 3, Jamabandis from the period prior to 1950 upto the year of vestment of land in the State under the H.P. Village Common Lands Vesting and Utilization Act, 1974 are relevant. Though the present petitioner has submitted copy of jamabandi for the year 1953-54, 1957-58,1965-66,1970-71 & 1975-76; but the classification of land has been shown as Ghasni, Ghasni Charand and Charand. However, in copy of Missal Haquiat (exhibit R-1-A) the land is classified as "Charnd-Banjar Kadeem" but it appears that the classification of land keep on changing every time. Thus on the basis of record available on the file, the conditions at SI. No. 2 and 3 above, cannot be ascertained, but it would not be appropriate to deny the claim of the petitioner merely on the basis of these papers, rather in the interest of justice it will appropriate to provide him reasonable opportunity to prove his case. 11. Under the H.P. Village Common Land Vesting and Utilization Act, 1974, vide notification No. 2-29/73-Rev.1, dated 31.12.1974, the powers of Collector have been conferred upon all the Sub-Divisional Collectors, for the propose of said Act, in their respective jurisdiction. 11. Under the H.P. Village Common Land Vesting and Utilization Act, 1974, vide notification No. 2-29/73-Rev.1, dated 31.12.1974, the powers of Collector have been conferred upon all the Sub-Divisional Collectors, for the propose of said Act, in their respective jurisdiction. Hence, it would be appropriate I to remand this matter to the Ld. Sub-Divisional Collector, Kandaghat for determination of the issue/claim of the petitioner qua exemption of the land in dispute from vestment in favour of the State keeping in view the amendment carried out in the H.P;. Village Common Lands Vesting and Utilization Act, 1974, in the year, 2011. 12. In view of the observations made herein above, the case is remanded back to the Sub-Divisional Collector, Kandaghat, District Solan with the direction to decide this matter in accordance with the provisions contained in H.P Village Common Lands Vesting and Utilization Act, 1974, after providing reasonable opportunity of being heard to the parities. Further, the present petitioner is also directed to submit all the relevant record in support of his claim before the Ld. Sub-Divisional Collector, Kandaghat, within a period of three months. In case the present petitioner fails to produce the relevant papers before the Ld. Sub-Divisional Collector, or after examination of record, the Sub-Divisional Collector comes to the conclusion that the claim of the. petitioner is not covered under the said Act, the order dated 26.10.2010 passed by the Ld. Ac 2nd Grade Kandaghat, in case No. 01/2009, shall prevail and the present petitioner will be liable to be evicted from the land under encroachment accordingly. 13. Orders be communicated to parties. The records of the courts below be returned and file of this court be consigned to the record room after due completion.