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2023 DIGILAW 550 (HP)

Om Parkash v. State of H. P.

2023-12-15

VIVEK SINGH THAKUR

body2023
JUDGMENT : Vivek Singh Thakur, J. This appeal, with consent of the parties, has been heard finally and is being decided at admission stage. 2. For convenience, the parties in present appeal shall be referred according to their status in the Civil Suit. As such, appellants (herein) shall be referred to as ‘plaintiffs’ and respondents (herein) shall be referred to as ‘defendants’. 3. This appeal has been preferred against judgment and decree dated 20.4.2019, passed by District Judge Hamirpur in Civil Appeal No.163 of 2018, titled as Om Parkash & others v. State of H.P. & others, whereby the District Judge, affirming the findings returned by the Senior Civil Judge Hamirpur that suit was not maintainable, has modified the judgment and decree dated 3.10.2018, passed in Civil Suit No.219 of 2012, titled as Om Parkash & others v. State of H.P. & others, to the extent that after arriving at conclusion that suit was not maintainable, instead of dismissing the same, plaint was to be returned to the plaintiffs for presenting the same before appropriate forum/ Court. 4. In present case, plaintiffs-appellants had preferred a Suit for declaration, permanent prohibitory injunction and mandatory injunction against defendants-respondents, with averments that suit land, earlier was recorded as ‘Shamlat Tika Hasab Hissa Mundarza Shajra Nasab’ in the Revenue Record, which was being used as common usage by Gautam community, but it has been wrongly mutated in the name of Municipal Council Hamirpur in the year 1970, without any notice to the plaintiffs. It is stand of the plaintiffs that suit land had been rightly mutated in favour of Provincial Government, vide Mutation No.928. However, in the column of ‘possession’, possession of Government was recorded as ‘Bakhana Kast Kabja Swayam’, which was transferred in favour of Nagar Parishad Hamirpur and Urban Development, Shimla, without any notice to the plaintiffs, who came to know about the wrong revenue entries in the year 2012, whereupon he served a notice upon the defendants and thereafter preferred the suit. 5. 5. As per stand of the defendants, suit land was never used by the plaintiffs and it was rightly shown in the ownership and possession of Notified Area Committee Hamirpur in the Jamabandi for the year 1970-71, and as it had vested in the State free from all encumbrances, for application of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 (for short ‘the Act’) and, therefore, its further transfer to Urban Development Department for public purpose has been claimed to be legal and justified. It has been contended that suit land was uncultivated Banjar Kadim and was not assessed for land revenue and it had taken shape of ‘Charagah with passage of time and, therefore, there is no illegality in attesting mutation in favour of Municipal Council Hamirpur and Urban Development Department. 6. The Trial Court, referring provisions of the Act, has dismissed the suit by holding that suit was not maintainable in the Civil Court and the remedy provided under the Act was required to be invoked by the plaintiffs. 7. In the appeal preferred by the plaintiffs, as recorded supra, the District Judge, instead of dismissing the suit, ordered the return of plaint to the plaintiffs, with affirmation of conclusion arrived at by the Senior Civil Judge that in view of provisions of the Act, Civil Suit was not maintainable. 8. Learned counsel for the plaintiffs, referring evidence on record, has argued in length with submission that on the basis of said evidence right of the plaintiffs on the suit land stands established and has contended that where there is violation of procedure, terms of judgment of this High Court in Chuhniya Devi v. Jindu Ram, 1991(1) Shim. L.C. 223, a suit is maintainable. He has contended that rights of Bartandaran cannot be extinguished by attesting mutation with respect to possession in favour of Nagar Parishad Hamirpur and, thereafter, in favour of Urban Development Department without following fair procedure. 9. L.C. 223, a suit is maintainable. He has contended that rights of Bartandaran cannot be extinguished by attesting mutation with respect to possession in favour of Nagar Parishad Hamirpur and, thereafter, in favour of Urban Development Department without following fair procedure. 9. Proposed substantial questions of law, framed for assailing the judgments and decrees passed by the Courts below, are based on arguments raised by the plaintiffs that the possession of the suit land has been vested in the State without any notice and behind the back of plaintiffs, in contravention of fundamental principle of judicial procedure and, in such eventuality, Civil Court has jurisdiction to adjudicate the matter in a Civil Suit for failure in following the prescribed procedure and, therefore, it has been contended that impugned judgments and decrees are in conflict with the verdict of the Court. 10. Learned Additional Advocate General has submitted that the suit land has rightly been vested in the State of Himachal Pradesh and it was neither in use nor in possession of the plaintiffs, but, as evident from Ex. P-1, it was owned and possessed by the Provincial Government before reorganization of the States of Punjab, Haryana and Himachal Pradesh, when area in reference was in Punjab Province and, thereafter, after transfer of the area to Himachal Pradesh it was rightly vested in the State of Himachal Pradesh. It has been contended on behalf of the State that even in cases where land is recorded as ‘Shamlat Tika Hasab Hissa Mundarza Shajra Nasab’ or in any other name in the Jamabandi, it shall vest in the State if it is not assessed for land revenue and has not been continuously recorded in cultivating possession of co-sharers so recorded before 26.1.1950 with their distinct shares, and as these conditions are not existing in present case and, therefore, claim of the plaintiffs is not sustainable under law. 11. Mr. 11. Mr. Hamender Chandel appearing for interveners has submitted that suit is for declaration, claiming that vesting of possession and attestation of mutation in favour of the Municipal Council/Nagar Parishad and Urban Development Department is illegal, whereas vesting of the suit land was automatic, in terms of provisions of the Act and prior to statutory vestment no notice is prescribed to be issued and the persons having any right in the property are entitled to compensation amount in lieu of extinguished rights in the property as prescribed under the Act and, therefore, suit is not maintainable. 12. Learned counsel for Municipal Council/Nagar Parishad Hamirpur has also supported the impugned judgments and decrees, for reasons assigned therein. 13. Undisputedly, the revenue record relied upon by the plaintiffs, Ex. P-3 shows that Notified Area Committee Hamirpur has been recorded in possession and as per Para-4 of the plaint, according to Jamabandi for the year 2007-2008, suit land has rightly been mutated in favour of Provincial Government; as per Jamabandi for the year 1952-53 (Ex.P-4), land was recorded as ‘Shamlat Tika Hasab Hissa Mundarza Shajra Nasab’ with ‘Kharjbachh’ entry in the column of land revenue, indicating that land revenue over the holding was cancelled and, therefore, no revenue was payable with respect to the suit land. 14. Sections 3, 9, 9-A and 10 of the Act, relevant to be considered, read as under: “3. 14. Sections 3, 9, 9-A and 10 of the Act, relevant to be considered, read as under: “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- (a) vested in a Panchayat under section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961 as in force in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organization Act, 1966 (31 of 1966) except lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds within abadi deh or garah deh; (b) described in the revenue records as shamlat taraf, pattis, pannas, thola, shamlat, shamlat deh, shamlat chak, shamlat 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-organisation Act, 1966; and (c) described in revenue records as shamlat, shamlat deh, shmlat taraf, shmlat chak, pattti 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 not apply to lands described in clause (b) and (c) of that sub- section 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 lands 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 clause 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 sub-section (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 subsection (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 be utilized for 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. ………….. ……….. ………….. 9. Appeal.- An appeal from the order of a Collector passed under this Act shall lie to the State Government or an Officer to be authorized by it, by a notification, within 60 days, of passing of the order. 9-A. Review.- (1) The Collector or the Officer authorized by the State Government under section 9 may, either on his own motion or on the application of any party interested, review and on so reviewing, modify, reverse or confirm any order passed by himself or by any of his predecessors in office. (2) No order shall be modified or reversed in review unless a notice has been given to the parties affected thereby to appear and be heard in support of the order. (2) No order shall be modified or reversed in review unless a notice has been given to the parties affected thereby to appear and be heard in support of the order. (3) An order against which an appeal has been preferred shall not be reviewed. (4) An application for review of an order shall not be entertained unless it is made within 90 days of the passing of the order, or unless the applicant satisfies the Collector or an Officer authorized by the State Government that he had sufficient cause for not making the application within that period. 10. Bar of jurisdiction.- Save as otherwise expressly provided in this Act, no order made by the Collector or the State Government or any officer authorized by it as the case may be, shall be called in question by any court or before any officer or authority.” 15. From the pleadings, response thereto and evidence placed on record, it is apparent that dispute involved in present case is with respect to proceedings undertaken by the concerned authority under the Act. 16. The only issue raised by the plaintiffs is that land has been vested in the State of Himachal Pradesh without issuing notice. As concluded in the impugned judgments and decrees, the vesting of land in the State was automatic and for that purpose no notice was required to be issued. Therefore, claim of the plaintiffs that there is violation of procedure in the process of vestment of the land in the State is not legally sustainable. 17. In present case, the land was recorded as ‘Shamlat Tika Hasab Hissa Mundarza Shajra Nasab’ at one point of time and mutation was attested in favour of Provincial Government and as evident from the documents no land revenue was being assessed thereon and it was not recorded in cultivating possession of plaintiffs or anybody else or any other co-sharer before 26.1.1950 or thereafter. It is not a land where inhabitants had raised residential house or cowshed or transfer of land has been made by the landowner by way of sale, gift or exchange or it has been partitioned by the individual co-sharers or through a process of law by a competent Court or authority. It is not a land where inhabitants had raised residential house or cowshed or transfer of land has been made by the landowner by way of sale, gift or exchange or it has been partitioned by the individual co-sharers or through a process of law by a competent Court or authority. For absence of all these essential ingredients, to justify the claim of the plaintiffs, for not to apply vestment of the suit land in the State Government, no violation of procedure has been established on record in this regard. Therefore, plea of the plaintiffs that there is violation of procedure is not sustainable. 18. For other remedies, including compensation in lieu of extinguished right, there is complete procedure prescribed in the Act by providing appeal and review and there is bar on jurisdiction of the Court with respect to filing a Civil Suit, as provided in Section 10 of the Act. 19. The District Judge in the impugned judgment has discussed the judgments passed in Athmanathswami Devasthanam v. K. Gopalaswami Ayyangar, AIR 1965 SC 338 ; Jagdish Chand & others v. Amar Singh & others, 2015(2) Shim.L.C. 976 ; Satya Parkash & others v. State of H.P. & othes, Latest HLJ 2010 (HP) 778; and Chuhniya Devi v. Jindu Ram, 1991(1) Shim.L.C. 223 , in right perspective. 20. From the material placed on record and in the given facts and circumstances of the case, I do not find any infirmity, illegality or perversity in the impugned judgments and decrees passed by the Courts below. No question of law, muchless substantial question of law, arises for consideration in the present appeal. 21. Hence, the appeal is dismissed. Interim stay order stands vacated. Pending applications, if any, also stand disposed of accordingly. Records of the Courts below be sent back.