Greenko Him Kailash Power Project Ltd. vs Collector, Sub-Division Chamba and Anr.

Sandeep Sharma, J.

1.Being aggrieved and dis-satisfied with order dated 24.5.2017, passed by the learned Collector Sub-Division Chamba, District Chamba, H.P., in case

No. nil dated 7.2.2014, titled Nazir Muhaamod v. Sh. Surjeet Singh (now deceased) G.M. Him Kailash Project Pvt. Ltd., petitioner-company has

approached this Court in the instant proceedings filed under Article 227 of constitution of India.

2.For having bird’s eye view, facts as emerge from the record are that the petitioner-company purchased a land comprised in khata khatauni No.

140/161, khasra No. 727/550/512/396, area measuring 00-06-00 biswas from respondent No.2 (Nazir Mohd.) for construction of water channel for

generating power. It also emerges from the record that the petitioner-company paid an amount of Rs. 36,000/- as sale consideration vide sale deed

dated 29.1.2005 (Annexure P-4). Subsequent to aforesaid sale made by respondent No.2, civil construction work was completed in the year, 2007,

whereafter the project came to be commissioned on 19.3.2008.

On 7.2.2014, respondent No.2 made an application to the Collector Sub-division Chamba, H.P., alleging therein that the petitioner-company has

encroached upon his land by constructing water channel forcibly without paying him adequate compensation. The Collector, after having conducted

inquiry passed impugned order dated 24.5.2017, whereby he held the present petitioner liable to pay fine of Rs. 4 lac, on account of unlawful grabbing

made by it of the land owned and possessed by respondent No.2. Apart from above, Collector having perused the record came to conclusion that land

purchased by the petitioner-company for construction of water channel from respondent No.2, was not put to use well within the specified period and

as such, land purchased by it, after having obtained permission under Section 118 of Tenancy and Land Reforms Act, 1972 (in short “the Actâ€),

needs to be resumed/vested in the State of HP. The Collector, not only ordered for vesting of land purchased by the petitioner from respondent No.2,

but also imposed fine to the tune of Rs. 4 lac on the petitioner-company.

Mr. K.D. Shreedhar, learned Senior Advocate, duly assisted by Mr. Sameer Thakur, Advocate, representing the petitioner-company, while

referring to the impugned order vehemently argued that the impugned order is not sustainable in the eye of law and as such, same deserves to be

quashed and set-aside. Mr. Shreedhar, contended that learned Collector had no authority, if any, to pass impugned order, especially imposition of

penalty/fine. He further stated that it is not understood that under what provision of law, the Collector, proceeded to impose fine to the tune of Rs. 4

lac. Mr. Shreedhar , while fairly admitting the fact that water channel has been constructed on the land other than land purchased by it from

respondent No.2, contended that an amount of Rs. 36,000/- was paid to respondent No.2 as a sale consideration and as such, Collector has wrongly

arrived at conclusion that the petitioner unlawfully grabbed the land of respondent No.2. While inviting attention of this Court to the agreement arrived

inter-se petitioner and respondent No.2 prior to the commencement of proceedings before learned SDM (page 30), Mr. Shreedhar, contended that an

additional amount of Rs. 5 lac stands already paid to the petitioner on account of various disputes raised by respondent No.2 and as such, it cannot be

said that injustice was caused to respondent No.2.

Mr. Nithin Thakur, learned Advocate, representing respondent No.2 was unable to dispute the factum with regard to the compromise arrived at

inter-se the petitioner and respondent No.2, whereby admittedly respondent No. 2 received an amount of Rs. 5 lac on account of his various claims in

addition to sale consideration of Rs. 36,000/-. Mr. Nitin Thakur, was unable to dispute that in terms of compromise referred herein above, respondent

No.2 had agreed at the time of execution of agreement that on the receipt of aforesaid amount i.e. Rs. 5 lac, he shall withdraw all cases and shall

have no claim in future, qua the land allegedly used by the petitioner for the construction of water channel.

Having heard learned counsel for the parties and perused the record adduced on record, this Court is persuaded to agree with contention of learned

Senior counsel that Collector Sub-Division Chamba, had no authority, if any, to impose fine and to recommend vestment of land admittedly purchased

by the petitioner from respondent No.2 by way of sale agreement. At this stage, it would be profitable to take note of relevant provisions contained in

Section 118 of the Act, which read as under:- “Section 118 (h): a non-agriculturist with the permission of the State Government for the purposes

that may be prescribed: Provided that that a person who is non-agriculturist but purchases land either under [clause (dd) or clause (g)] or with the

permission granted under clause (h) of this sub-section shall, irrespective of such purchase of land, continue to non-agriculturist for the purposes of this

Act: Provided further that a non-agriculturist [who purchases land under clause (dd) or,] in whose case permission to purchase land is granted under

clause (h) of this sub-section shall put the land to such use for which the permission has been granted within a period of two years or a further such

period not exceeding one year, as may be allowed by the State Government for reasons to be recorded in writing, to be counted from the day on

which the sale deed of land is registered and if he fails to do so or diverts, without the permission of the State Government, the said use for any other

purpose or transfer by way of sale, gift or otherwise, the land so purchased by him shall, in the prescribed manner, vest in the State Government free

from all encumbrances;†Section 118 (3A) (b) (b) a Revenue Officer either on an application made to him or on receipt of any information from any

source comes to know or has reason to believe that any land has been transferred or is being transferred in contravention of the provisions of sub-

section (1); such Sub-Registrar, the Registrar or the Revenue Officer, as the case may be, shall make reference to the Collector of the District, in

which land or any part thereof is situate, and the Collector, on receipt of such reference or where the Revenue Officer happens to be the Collector of

the District himself, he either on an application made to him or on receipt of any information from any source comes to know or has reason to believe

that any land has been transferred or is being transferred in contravention of the provisions of sub-section (1), shall after affording to the persons who

are parties to the transfer, a reasonable opportunity of being heard and holding an enquiry, determine whether the transfer of land is or, is not in

contravention of sub-section (1) and he shall, within six months from the date of receipt of reference made to him or such longer period as the

Divisional Commissioner may allow for reasons to be recorded in writing record his decision thereon and intimate the findings to the Registrar, Sub-

Registrar or the Revenue Officer concerned.

Perusal of Section 118 (h) suggests that a non-agriculturist with the permission of the State Government, for the purpose that may be prescribed,

can purchase land. In the case at hand, it is not in dispute that land was purchased by the petitioner-company for the construction of water channel

from respondent No.2 after having obtained permission under Section 118 of the Act. Proviso to Section 118(h) further suggests that in case land

purchased after having obtained permission is not put to use, for which it is purchased, within a period of two years, land purchased, shall in the

prescribed manner, vest in the State free from any encumbrance. Further perusal of Section 118 (3A) (b) suggests that Sub-Registrar, Registrar or the

Revenue Officer, shall make reference to the Collector of the District, in which land or any part thereof is situate and Collector, on receipt of such

reference or where the Revenue Officer happens to be Collector of the District himself, either he on a application or on receipt of information from

any source, shall after affording to the persons, who are parties to the transfer, a reasonable opportunity of being heard and holding an enquiry,

determine whether the transfer of land is/was not in contravention of Section 118. Aforesaid provision further provides that Collector while carrying

out aforesaid exercise shall, within 90 days from receipt of reference made to him, record his decision in writing and intimate the findings to the

Registrar, Sub-Registrar or Revenue Officer concerned.

Similarly, careful perusal of Section 38 of the Act, suggests that an application for ejectment on account of contravention of provision contained in

the Act is to be made to the Revenue Officer.

In the case at hand, close scrutiny of impugned order passed by the Collector Chamba, though suggests that Collector Sub Division, Chamba, while

taking note of application made by respondent No.2 has made reference to District Collector Chamba, for initiation of a case against the petitioner for

contravention of Section 118 of the Act, but having perused reasoning/finding recorded in the said order, this court finds considerable force in the

submission of Mr. Shreedhar, learned Senior Counsel that Collector has not merely made reference, rather has recorded finding that property in

question needs to be vested in State Government on account of violation of provisions contained under Section 118 of the Act.

As has been discussed herein above, the Collector Sub Division Chamba, after having received complaint, could only make reference to Collector

for initiation of proceedings, if any, for contravention of provisions contained in Section 118 of the Act and definitely, he is/ was not competent to

record finding or recommend vestment of property in question, but in the instant case, tone and tanner of impugned order, suggests otherwise.

Collector Sub Division Chamba, has not only made reference, rather he has arrived at definite conclusion that since petitioner has contravened the

provisions contained under Section 118 of the Act, property in question needs to be vested in State Government.

Leaving everything aside, it is not understood that under what provision, Collector Sub Division Chamba, could impose fine of Rs. 4 lac and this

Court has no hesitation to conclude that Collector Sub Division Chamba, has exceeded his jurisdiction, rather he has travelled beyond the prayer made

in the application, wherein respondent No.2 had only alleged that his land has been encroached upon by the petitioner-company without paying him

adequate compensation. Had the petitioner encroached upon the government land, Collector could proceed under Section 163 of HP Land Revenue

Act against the petitioner for ejectment, but Collector had no authority to intervene or pass any order in the instant case where encroachment, if any,

is/was made on the private land of respondent No.2.

Consequently, in view of the discussion made herein above, this Court finds impugned order dated 24.5.2017, passed by the learned Collector, to

be without jurisdiction and as such, same is quashed and set-aside. Similarly, the Collector had no authority whatsoever, to impose fine, as has been

held herein above, order made in this regard is also quashed and set-aside. As is quite evident from material available on record that since respondent

No.2 has already received an additional amount of Rs. 5 lac in the year, 2012, over and above the sale consideration of Rs. 36,000/-, there appears to

be no force in the argument of Mr. Nitin Thakur, that great prejudice has been caused to respondent No.2.

At this stage, Mr. Shreedhar, stated that though sufficient amount stands already paid to the respondent No.2 on account of land allegedly used for

construction of water channel, but even that petitioner-company is ready and willing to suitably compensate respondent No. 2 qua the land other than

purchased by it for construction of water channel. He further stated that land which was initially purchased by the petitioner company for construction

of water channel is already in possession of respondent No.2 and the petitioner is ready and willing to surrender that in lieu of land used by it for

construction of water channel in addition to reasonable amount/market price.

In view of the aforesaid, respondent No.2 is directed to make a written request to the petitioner-company for additional compensation at the rate

of market price qua the land used for construction of water channel, which shall be considered and decided by the petitioner-company sympathetically

as has been fairly stated by the learned senior counsel. Accordingly, present petition stands disposed of, so also pending applications, if any.