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Himachal Pradesh High Court · body

2019 DIGILAW 1098 (HP)

Sharwan Kumar v. Financial Commissioner

2019-08-05

DHARAM CHAND CHAUDHARY, JYOTSNA REWAL DUA

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JUDGMENT : Justice Dharam Chand Chaudhary, J (Oral). Appellants herein are successors-in-interest of one Krishan respondent No. 3 (since dead) in an application registered as case No. 1829 of 1975 filed under Section 104 of the H.P. Tenancy and Land Reforms Act by Ripu Daman Singh, respondent No. 5 herein before Land Reforms Officer (Tehsildar) Hamirpur, on the grounds inter alia that he is entitled to the resumption of land which was in the possession of said Krishnu in the capacity of tenant awal. The land of other tenants, namely, Gurbachhan Singh, Shiv Charan Singh, Hari Charan Singh, sons of Kapoor Singh (respondent No. 1 before learned Land Reforms Officer) and S/Sh. Jaisi Ram, Dev Raj sons of Pala, respondent No. 2 was also sought to be resumed. The resumption of the land by Ripu Daman Singh aforesaid, the landlord perhaps was sought on the grounds inter alia that the tenancy land to the extent he is entitled to retain for his self cultivation is not in his actual possession. Sh. Krishanu, the predecessor-in-interest of the appellants herein was represented before learned Land Reforms Officer by Prem Chand, his son who is predecessor-in-interest of the present appellants. 2. The Land Reforms Officer has allowed the application (case No. 1829/75) vide order dated 25.8.1977 with the observation that Sh. Ripu Daman Singh, the applicant has allowed the tenants including Krishanu to cultivate his land without rent as he was jagirdar and designated as Raja. The rent as per the entry in the revenue record qua the land in the possession of Krishnu tenant was ?Muaf? (exempted), therefore, Sh. Krishanu was stated to be wrongly entered as tenant awal in revenue record. The order Annexure P-1 further reveals that the Land Reforms Officer when explained this position to Prem Singh who represented Krishnu and suggested that no Khasras to be given to the land owner as well as started recording the statements, said Sh. Prem Singh had left the spot without signing his statement on the advice of one Pratap Chand, a retired Government Servant. The Land Reforms Officer while making observations that this retired official is not doing good work even after his retirement, recorded further in the order Annexure P-1 that Kh. Nos. 470, 466 (whole) and area 8-0 kanals out of Kh. The Land Reforms Officer while making observations that this retired official is not doing good work even after his retirement, recorded further in the order Annexure P-1 that Kh. Nos. 470, 466 (whole) and area 8-0 kanals out of Kh. No. 471 allotted to some Thakur Dass was given to landlord Ripu Daman Singh and ownership rights to the extent of 13-17 kanals given to Krishanu, the predecessor-in-interest of the appellants herein. Similarly, the land was also sanctioned in favour of Gurbachhan Singh, Shiv Charan Singh, Hari Charan Singh, sons of Kapoor Singh, respondent No. 1 and in favour of S/Sh. Jaisi Ram, Dev Raj sons of Pala, respondent No. 2 in the application. The remaining tenants of Ripu Daman Singh, the applicants were declared owners of whole of the tenancy land in their respective possession as according to Land Reforms Officer, the land he was allowed to resume vide Annexure P-1 plus the land previously under his self cultivating possession comes to 3 acres, the maximum sealing fixed for resumption. 3. The predecessor-in-interest of the appellants aggrieved by the order Annexure P-1 preferred in an appeal before SDO(C)-cum- Collector, Hamirpur, Sub Division Hamirpur registered as case No 49 of 1980 and 29 of 1980 on the grounds inter alia that the Land Reforms Officer has not followed the procedure prescribed in the matter of resumption of land by the land owner nor determined the area which on the day he applied for resumption in his actual physical and cultivating possession nor they were given the opportunity to select the land as per their choice before the area out of it is allowed to be resumed by the applicant-landlord etc. etc. However, the SDO(C)-cum- Collector, Hamirpur dismissed the appeal vide order dated 17.1.1981 (Annexure P-2 to the writ petition). 4. The Revision registered as Revision Petition No. 19 of 1981 (Annexure P-3) preferred against the order Annexure P-2 before the Divisional Commissioner, Dharamshala, also met the same fate because the same has also been dismissed vide order dated 20.6.1986 (Annexure P-4). The predecessor-in-interest of the appellants herein Sh. Prem Chand thereafter preferred the Revision Petition under Section 114 of the H.P. Tenancy and Land Reforms Act (Annexure P-5) against the order Annexure P-4 before the Financial Commissioner, Himachal Pradesh. The Financial Commissioner, has also dismissed the same vide order dated 31.3.1992 (Annexure P-7). The predecessor-in-interest of the appellants herein Sh. Prem Chand thereafter preferred the Revision Petition under Section 114 of the H.P. Tenancy and Land Reforms Act (Annexure P-5) against the order Annexure P-4 before the Financial Commissioner, Himachal Pradesh. The Financial Commissioner, has also dismissed the same vide order dated 31.3.1992 (Annexure P-7). This has led in filing the writ petition registered as CWP No. 584 of 1992 in this Court. The same has also been disposed of by learned Single Judge vide judgment dated 5.7.2010 with the following directions: ?(a). The findings with respect to the area of tenancy for which the predecessor-in-interest of the petitioner has acquired proprietary rights is confirmed as held by the Revenue Authorities. (b). The entitlement of Sh. Ripu Daman Singh as adjudicated by the Revenue Authorities is also not disturbed as these findings are based on facts properly determined by the Revenue Courts. (c). The Land Reforms Officer shall grant an opportunity to the petitioners in terms of Rule 24(2) to exercise their choice.? 5. The appellants, however, aggrieved by the impugned judgment passed by learned Single Judge has questioned the legality and validity thereof in this Court on the grounds inter alia that there is non-compliance of Rule 24(2) of the Rules framed under H.P. Tenancy and Land Reforms Act. The mandatory provisions contained under Section 104 of the Act qua the right of choice of the tenant and the land which according to the appellantstenants is more than 100 kanals cultivated/irrigated has not been taken into consideration. It is not the case that the applicant-landlord holding less than 1 ½ acres of irrigated land or 3 acres of un-irrigated land. On the other hand, he was having more than 100 kanals of cultivated and irrigated land in his actual and physical possession at the relevant time when he filed the application for resumption. However, the Land Reforms Officer has not determined the land in his actual possession and recorded the findings to the contrary arbitrarily, whimsically and contrary to the entries in the revenue record produced by the appellants-tenants on record. For that matter, the SDO(C)-cum-Collector, Divisional Commissioner, and Financial Commissioner, Himachal Pradesh have also not considered the grounds raised in the appeal/Revision, particularly when no opportunity was given to the appellants-tenants to exercise their right of choice/selection guaranteed by Section 104 of the Act. For that matter, the SDO(C)-cum-Collector, Divisional Commissioner, and Financial Commissioner, Himachal Pradesh have also not considered the grounds raised in the appeal/Revision, particularly when no opportunity was given to the appellants-tenants to exercise their right of choice/selection guaranteed by Section 104 of the Act. The area in actual and physical possession of the applicant-landlord Ripu Daman Singh was not determined before passing the order qua resumption of land in the possession of Krishanu in the capacity of tenant by him. Further complaint as brought to appellate/Revisional Authorities below that the applicant-landlord failed to mention the land in his physical and actual possession in Form LR-V and the evidence showing that he had more than 3 acres of un-irrigated land in his cultivating possession at the relevant time, hence was not entitled to resume the land under Section 104 of the Act, has not been considered. The further case of the appellants-tenants that the procedure prescribed under Section 104 of the Act and the Rules framed there under has not been followed by the Land Reforms Officer and also the appellate/Revisional authorities. This aspect is also stated to be erroneously ignored. It has further been pointed out that the documents X-1 to X-18 placed on record of the writ petition by way of filing the applications CMP No. 846/2009 and Annexure A-1 to CMP No. 7663 of 2009 have not been considered at all. As a matter of fact, the pleadings i.e. reply, rejoinder etc. were complete in these applications, however, the same neither considered nor decided and to the contrary the writ petition was finally disposed of vide judgment under challenge. Therefore, the direction of learned Single Judge that the ownership of land conferred on the tenants as also the area resumed by the applicant-landlord Ripu Daman Singh should not be disturbed are without taking note of the material and subsequent developments having been brought on record of the writ petition by way of filing the applications hereinabove, hence not legally sustainable. 6. We have heard learned counsel representing the parties on both sides and also gone through the record of the case. 7. 6. We have heard learned counsel representing the parties on both sides and also gone through the record of the case. 7. In the nature of the order we propose to pass in this matter, there is no need to advert to the facts and also the points in issue and the appeal can be disposed of after taking into consideration the provisions contained under Section 104 of the Act which provides for procedure required to be followed in the matter of conferment of proprietary rights upon the tenants other than occupancy tenants/resumption of the land by landlord. The relevant extract of Section 104 of the Act reads as follows: [104. Right of tenant other than occupancy tenant to acquire interests of landowner. The relevant extract of Section 104 of the Act reads as follows: [104. Right of tenant other than occupancy tenant to acquire interests of landowner. - (1) Notwithstanding anything to the contrary contained in any law, contract, custom or usage for the time being in force, on and from the commencement of this Act, if the whole of the land of the landowner is under nonoccupancy tenants, and if such a landowner has not exercised the right of resumption of tenancy land at any time since January 26, 1955 under any law as in force :- (i) such a landowner shall be entitled to resume before the date to be notified by the State Government in the Official Gazette and in the manner prescribed, either one and a half acres of irrigated land or three acres of unirrigated land under tenancy from one or more than one tenants for his personal cultivation and the right, title and interest (including contingent interest, if any) of the tenant or tenants, as the case may be, therefrom shall stand extinguished free from all encumbrances created by the tenant or tenants to that extent : x x x x x x x x x x x x x x x x x x x x x x x x x x x x x Provided further that the landowner shall not be entitled to resume from a tenant more than one half of the tenancy land; (ii) in case the landowner holds less than one and a half acres of irrigated land or three acres of unirrigated land in his personal cultivation, he shall be entitled to resume tenancy land only to make up the land under his personal cultivation to the extent of one and a half acres of irrigated land, or three acres of unirrigated land, as the case may be, subject to the other conditions laid down in this section; (iii) the right, title and interest in the rest of the tenancy land of the landowner, who is entitled to resume land under clauses (i) and (ii) shall vest in the tenant free from an encumbrances with effect from the date to be notified by the State Government in the Official Gazette; (iv) in case the land under the tenancy is partly irrigated and partly unirrigated and the landowner intends to resume land of both these classes, he shall be entitled to do so in the ratio and manner to be prescribed; (v) in the event of any dispute between the landowner and the tenant with regard to the selection of land for resumption, the first right of selection of the land shall be that of the tenant who may exercise this right in the prescribed manner and before the date to be notified by the State Government in this respect in the Official Gazette; (vi) in case the tenant fails to exercise his right of selection of land by the date notified under clause (v), the Land Reforms Officer shall determine his share after giving the parties an opportunity of being beard. In such a case also, the tenant shall be given the first choice to select the land. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x? 8. What we could gather from the above quoted provision, in a nut shell, is that a landlord is entitled to exercise his right of resumption of tenancy in the eventualities; firstly if whole of his land is in the possession of non-occupancy tenants and secondly he has not exercised the right of resumption of tenancy land at any time since January 28, 1955 under any law in force. The conditions that the landlord shall only be entitled to resume the land before the day to be notified by the State Government in the official gazettee and in any other manner prescribed to the extent of either 1 ½ acres irrigated land or 3 acres un-irrigated land under tenancy from one or more than one tenants for his personal cultivation and on resumption the rights of tenant shall stand extinguished free from all encumbrances. It is thus seen that a land owner if holds less than 1 ½ acres of irrigated land or 3 acres of un-irrigated land in his physical and cultivating possession, only is entitled to resume tenancy land so that the land under his personal cultivation comes to 1 ½ acres irrigated land or 3 acres if it is un-irrigated. After allowing the landlord to resume the land in the manner as aforesaid, the remaining land shall vest in the tenant free from all encumbrances w.e.f. the day to be notified by the State Government. In case, the tenancy land is partly irrigated and partly un-irrigated and the land owner intends to resume the land of both classes, he shall be entitled to do so in the manner to be prescribed by the Land Reforms Officer. In the event of any dispute between the land owner and the tenant with regard to selection of land for resumption, the first right of selection will be that of the tenant who may exercise such right in the prescribed manner and before the day to be notified by the State Government in this regard in official gazettee. In the event of any dispute between the land owner and the tenant with regard to selection of land for resumption, the first right of selection will be that of the tenant who may exercise such right in the prescribed manner and before the day to be notified by the State Government in this regard in official gazettee. In case the tenant fails to exercise his right of selection of land within the stipulated period, the Land Reforms Officer shall determine his share after giving the parties an opportunity of being heard. In such case also, the tenant shall be given the first choice to select the land. 9. It would not be improper to conclude that no such procedure has been followed in the case in hand. As a matter of fact, the Land Reforms Officer has never determined the question as to how much was the land in actual and physical possession of the applicant-landlord well before the date of notification published in the official gazettee. The landlord is thus entitled to exercise the right of resumption only in case having less than 1 ½ acres irrigated land or 3 acres un-irrigated land, as the case may be. The appellants-tenants having produced on record the documents showing that the applicantlandlord was in possession of more than 100 kanals of land, the same were not taken into consideration either by Land Reforms Officer or the statutory Appellate/Revisional Authorities. Even such record sought to be placed on record of the writ petition by way of filing CMP No. 846/2009 and CMP No. 7663 of 2009 could not be considered by learned Single Judge as both applications were not taken into consideration by learned Single Judge nor any order passed irrespective of reply/rejoinder having come on record thereof. The Land Reforms Officer has also not considered the question as to whether the applicantlandlord has exercised the right of resumption of tenancy land at any point of time since January, 1955 or not under any law in force, which is also a condition precedent to seek resumption of tenancy land in terms of Section 104 of the Act. 10. The appellants-tenants were never given an opportunity to exercise their right of selection/choice as envisaged under the provisions referred to hereinabove. 10. The appellants-tenants were never given an opportunity to exercise their right of selection/choice as envisaged under the provisions referred to hereinabove. The order Annexure P-1 passed by learned Land Reforms Officer on the other hand is not only evasive but vague also and makes no sense. The observations that the Land Reforms Officer explained certain facts to Prem Chand, the son of deceased Krishanu, however, the later left the spot without signing his statement at the advice of the so called retired mischievous employee, to us are absolutely meaningless and made to sidetrack the real point in controversy and also to give colour to the matter to avoid deciding the points in issue in accordance with the provisions contained under the Act and the Rules framed thereunder. Learned Land Reforms Officer, to our mind, has very cleverly tried to divert the attention of the Appellate/Revisional Authorities from the statutory provisions and the procedure under the Act and Rules framed thereunder required to be followed in the matter of resumption of land by the landlord. The Appellate/Revisional Authorities have also not appreciated the points in issue in its right perspective and to the contrary upheld the order passed by the Land Reforms Officer mechanically and without application of mind. Learned Single Judge has also not appreciated the question as to whether on the appointed day, the land in actual and physical possession of the applicant-landlord was less than 1 ½ acres irrigated land or 3 acres un-irrigated land. The legal right of the appellants-tenants to select/choose the land out of the land in their possession has also escaped the notice of learned Single Judge. Therefore, not only the impugned judgment but also the orders Annexure P-1 passed by Land Reforms Officer, Annexure P-2 by SDO(C)-cum-Collector, Hamirpur, Annexure P-4 passed by Divisional Commissioner, Dharamshala and Annexure P-7 passed by Financial Commissioner, Himachal Pradesh are neither legally nor factually sustainable. The same, as such, are quashed and set aside. 11. Consequently, the case is remanded to learned Land Reforms Officer, Hamirpur, H.P., for fresh disposal in accordance with law and in the light of the observations made hereinabove as well as taking into consideration the entire records including the documents which were sought to be placed on record of the writ petition by filing applications CMP No. 846/2009 and CMP No. 7663 of 2009. Since the matter is quite old, it is expected from learned Land Reforms Officer to decide the same at the earliest, however, not beyond 30th October, 2019. The parties through learned counsel representing them are directed to appear before the Land Reforms Officer on 2.9.2019. The appeal is accordingly disposed of so also the pending application(s), if any.