Roshan Lal vs State of H.P. and Another

R.L. Khurana, J.—By virtue of the present writ petition filed under Articles 226 and 217, Constitution of India, the Petitioner, Roshan Lal, has approached this Court, inter alia, seeking the following relief''s:

(a) quashing of the order dated 22-6-1985 of the Financial Commissioner (Appeals), H.P., as at Annexure "P-6" to the writ petition;

(b) the Petitioner be conferred the proprietary rights qua the land measuring 11 kanals 4 marlas comprising of khasra No. 9/5, khatauni No. 1 min and khewat No. 1 min of village Jatuha, Mauza Balduhak, Tehsil and District Hamirpur, for short hereinafter referred to as the land in dispute; and

(c) any other writ, direction or order to which the Petitioner may be found entitled to.

Briefly stated, the facts giving rise to the present petition are these. Land measuring 44 kanals 15 marlas comprising of khasra No. 9, khatauni No. 1 and khewat No. 1 of village Jatuha, Mauza Balduhak Tehsil and District Hamirpur (of which the land in dispute forms a part) was owned by Raja Rajinder Chand son of Raja Mohinder Chand of Bela, Tappa Jalari, Tehsil Hamirpur. The same was leased out to the Petitioner and his two brOrs. S/Shri Munshi Ram and Dharam Singh on 15-3-1965 on payment of annual rent of Rs. 40 by the above said owner Raja Rajinder Singh. After the lease, the land was brought under cultivation by the Petitioner and his brOrs. .

In the year 1973, the H.P. Ceiling on Land Holdings Act, 1972, hereinafter referred to as the Ceiling Act, came into force. Under the provisions of the said Act, the landowners, who were holding land in excess of the specified limit were required to declare such excess land as "surplus". The owner Raja Rajinder Singh in terms of the provisions of the Ceiling Act declared the above mentioned land measuring 44 kanals 15 marlas, which was leased out to the Petitioner and his brOrs. , as surplus.

The H.P. Tenancy and Land Reforms Act, 1972, hereinafter referred to as the Tenancy Act, came into force on and with effect from 21-2-1974. u/s 104 of the said Act, all the tenants were to be declared as owners in respect of the land under their tenancy on and with effect from the appointed day. Since the land had already been declared as surplus by the previous owner Raja Rajinder Singh, the same was to vest in the Petitioner and his brOrs. . The State of H.P., Respondent No. 1, instead of conferring proprietary rights on the Petitioner and his brOrs. , initiated proceedings u/s 163, H.P. Land Revenue Act, 1953 against the Petitioner for his ejectment from the land in dispute. The Assistant Collector IInd Grade, Hamirpur, on 2-9-1976 passed an order against the Petitioner directing his ejectment from the land in dispute by holding that the previous owner Raja Rajinder Singh, had no authority to give the land in dispute on lease. The appeal preferred by the Petitioner against the order of ejectment dated 2-9-1976 was dismissed on 26-6-1979 by the Collector, Hamirpur. The Petitioner went up in revision before the Divisional Commissioner Such revision was also dismissed on 31-10-1980. Further revision carried before the Financial Commissioner (Appeals) was dismissed on 22-6-1985 vide order as at Annexure "P-6".

Further case of the Petitioner is that on an earlier occasion as well proceedings for ejectment of the Petitioner and his brOrs. from the above referred to land measuring 44 kanals 15 marlas were initiated and the matter went up right up to the Divisional Commissioner. The matter was remanded by the Divisional Commissioner to the Collector, Hamirpur for disposal afresh. It was observed that the Petitioner and his brother were tenants qua the land in question on payment of annual rent of Rs. 40 and that upto date rent stood paid. Though the case was remanded to the Collector by the Divisional Commissioner vide order dated 30-6-1978, the matter has still not been decided by the Collector and is still pending.

Being aggrieved by the order dated 22-6-1985 (Annexure "P-6") as passed by the Respondent No. 2, the Petitioner has approached this Court by way of the present petition seeking the reliefs as enumerated above.

The Respondents while resisting the petition has averred that the land measuring 44 kanals 15 marlas alleged to have been leased out in favour of the Petitioner and his brOrs. by Raja Rajinder Chand, was "Shamlat" within the meaning of Section 2(g) of the Punjab Village Common Lands (Regulations) Act, 1961 and the same stood vested in the Panchayat under the said Act. Therefore, Raja Rajinder Singh could not have leased out the same in favour of the Petitioner and his brOrs. . Without admitting the validity of the lease, it was averred that as per the terms of the lease the land was given only for the purpose of "growing grass". It could not have been brought under cultivation. Therefore, the Petitioner and his brOrs. are guilty of having violated the terms of the lease. The land further came to be vested in the State on the coming into force of the H.P. Village Common Lands (Vesting and Utilisation Act), 1974. This land was never declared as surplus under the Ceiling Act, since it had already been vested in the Panchayat under the Punjab Village Common Lands (Regulations) Act, 1961. Since the Petitioner and his brOrs. were not the tenants qua this land on the date of coming into force of the Tenancy Act, no proprietary rights could be conferred on them u/s 104 thereof. It has further been averred that on the land having vested in the State, the same was allotted to landless and other eligible persons by the Collector vide order dated 29-2-1976. On appeal by the Petitioner against such order, the case was remanded to the Collector for disposal afresh on the ground that no adequate opportunity was given to the Petitioner. On a previous occasion neither there was any ejectment order against the Petitioner nor any appeal was tiled by the Petitioner against such alleged order of ejectment. It has also been pleaded that proceedings u/s 163. H.P. Land Revenue Act, 1953, were rightly initiated against the Petitioner and an order of ejectment stands rightly and legally passed against him Such order stands confirmed in appeal and revision by the competent authorities.

We have heard the learned Counsel for the parties and have gone through the record of the case.

The first question which arises for determination is-whether the land in dispute came to be vested in the State under the Ceiling Act on its having been declared as surplus by the owner Raja Rajinder Singh or under the provisions of the H.P. Village Common Lands (Vesting and Utilisation) Act, 1974.

According to the Petitioner, the land in dispute was owned by Raja Rajinder Singh. It was leased out in favour of the Petitioner and his brOrs. in the year 1965 and on the coming into force of the Ceiling Act, the same was declared as "surplus" under the provisions of the said Act. On the other hand, the case of the Respondent is that the land in dispute was "Shamlat". It came to be vested in the Panchayat under Punjab Village Common Lands (Regulations) Act, 1961 and thereafter in the State under the provisions of H.P. Village Common Lands (Vesting and Utilisation) Act, 1974.

It is the admitted case of the Respondents that some land out of the land in dispute was allotted to different persons on the same having vested in the State Such allotment made by the State was challenged by the petitions and his brOrs. by way of an appeal before the Divisional Commissioner, H.P. at Shimla Order dated 30-6-1978 (Annexure "P-7") was passed in appeal by the Divisional Commissioner, whereby the appeal of the Petitioner and his brOrs. was allowed. The order dated 28-2-1976 of the Collector, Hamirpur, alloting a portion of the land in dispute in favour of S/Shri Raula, Surti, Ghasitu and banshi was set aside and case remanded to Collector for disposal afresh. The said appeal was tiled by the Petitioner and his brOrs. u/s 20 of the Ceiling Act.

At this stage, it would not be out of place to quote some of the provisions of the Ceiling Act which are relevant for the purpose of the present case.

Section 4 of the Ceiling Act prescribes the "permissible area" which may be held by a landowner, tenant or a mortgagee. Section 5 provides for exemptions to the lands of certain categories to which the provisions of the Ceiling Act would not apply. Section 6 prohibits the holding of land in excess of the permissible area Section 8 provides for selection of permissible area by the person holding the land in excess of the permissible area and for submission of a requsite return to the Collector within a prescribed period. Section 9 provides for submission of a declaration supported by an affidavit by the person submitting the return u/s 8 Section 10 imposes a duty on the Collector to publish the information gathered on the basis of returns/declarations, after due verification, and to serve a copy thereof on the person(s) concerned. It further provides that after affording the objector(s) an opportunity of being heard, the Collector shall pass such order as he may deem fit. Section 11 which deals with the vesting of surplus area in the State Government, reads:

The surplus area of a person shall, on the date on which possession thereof is taken by or on behalf of the State Government be deemed to have been acquired by the State Government for a public purpose on payment of amount hereafter provided and all rights, title, interests (including the contingent interest, if any) recognised by any law, custom or usage for the time being in force, of all persons in such area shall stand extinguished and such rights, title and interests shall vest in the State Government free from any encumbrance:

Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.

Section 12 of the Ceiling Act empowers the Collector to take possession of the land becoming surplus. Section 13 deals with the separation of shares of the joint landowners. Section 14 lays down the principles for determination of compensation payable to the landowners in respect of the land becoming surplus and vesting in the State.

Section 15 deals with the disposal of the surplus area, it provides:

(1) The surplus area which has vested in the State Government u/s 11 shall be at the disposal of the State Government.

(2) The State Government may, by notification in the official Gazette, frame a scheme for utilizing the surplus area vested in the State Government by allotment:

(a) to a landless person or any other eligible person; or

(b) for allotment of a site to a handicapped or houseless person for the construction of a house; and the allottee shall pay amount:

(i) for the land allotted to him at the rate of ninety-five times the land revenue and rates and cases, thereof;

(ii) for building, structure or tube-well, if any, at 50% of the market price of such building, structure or tube-well:

Provided that if the holding or part thereof comprising surplus area is not assessed to land revenue, the land revenue on such land shall be construed to be assessed as on similar land in the estate and if not available in the estate then on the adjoining estate or estates, as the case may be:

Provided further that the waste land shall be treated as ''Banjar'' land for the purposes of assessment of land revenue and determination of the amount.

(2-A) For making the allotment of the surplus land under Sub-section (2), the first preference among landless persons shall be given to the members of the Scheduled Castes and Scheduled Tribes.

(3) Any scheme framed by the State Government under Sub-section (2) may provide for the terms and conditions on which the land comprised in surplus area is to be allotted.

(4) The State Government may, by notification in the official Gazette, add to, amend, vary or revoke any scheme made under this section.

Section 15-A provides for utilisation of surplus land for the development of the State. Sections 16 and 17 impose a bar on future acquisition of land in excess of the permissible area by way of inheritance or otherwise. Section 18 bars the jurisdiction of civil courts to entertain/proceed with the suit for specific performance of a contract for sale of land which may affects the right of the State Government to the surplus area under the Act or to settle, decide or deal with any matter which under the Act is required to be settled, decided or dealt with by the authorities prescribed under the Act. Section 19 prescribes the mode for recovery of the amount and/or penalty payable under the Act.

Section 20 provides for appeal, review and revision. It reads:

(1) Any person aggrieved by any decision or order of the Collector may within sixty days from the date of the decision or order prefer an appeal to the Commissioner:

Provided that the Comminssioner may entertain the appeal after the expiry of the said period of sixty days if he is satisfied that the appellant was prevented by sufficient cause from filling the appeal time.

(2) Any person aggrieved by an order of the Commissioner made under Sub-section (1) may, within ninety days from the date of the order, file a revision petition before the Financial Commissioner so as to challenge she legality or propriety of such order and the Financial Commissioner may pass such order as he may deem fit. The order of the Financial Commissioner shall be final.

(3) Notwithstanding anything contained in the foregoing Sub-sections, the Financial Commissioner may at any time call for the record of any proceedings or order of any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order, and may pass such order in relation thereto as he may deem lie.

A scheme, known as H.P. Utilisation of Surplus Area Scheme, 1974, was framed by the State Government for the purpose of disposal of surplus area u/s 15 of the Ceiling Act.

As stated above, a part of the land in dispute was allotted by Collector, Hamirpur, in favour of certain persons. Such allotment appears to have been made u/s 15 of the Ceiling Act read with the Scheme made by the State there under. That is why an appeal was tiled by the Petitioner and his brOrs. u/s 20 of the Ceiling Act assailing the allotments made by the Collector, Hamirpur, vide order dated 28-2-1976.

Had the land in dispute vested in the State under the provisions of the H.P. Village Common Lands (Vesting and Utilisation) Act, 1974, then the same was required to be dealt with and utilized in accordance with Sections 8 and 8-A of the said Act and the-Scheme made there under known as H.P. Village Common Lands Vesting and Utilisation Scheme, 1975. An appeal against the order of the Collector allotting land to landless/eligible persons u/s 8 or 8-A of the H.P. Village Common Lands (Vesting and Utilisation) Act, 1974 lies to the State Government u/s 9 of the said Act.

Annexure "P-7", therefore, establishes that the land in dispute became vested in the State on the same having been declared surplus under the Ceiling Act.

The next question which arises for consideration is-whether the Petitioner could have been dealt with and proceeded against u/s 163, H.P. Land Revenue Act, 1953, on the land having vested in the State under the Ceiling Act.

Section 163, H.P. Land Revenue Act, 1953, reads:

(1) Where Government land or land which has been reserved for the site of a village or for the common purposes of the co-sharers therein has been encroached upon by any co-sharer or other person for any purpose including construction of a building or other structure thereon, then:

(a) the Revenue Officer may of his own motion or on the application of any other co-sharer eject the encroaching person (hereinafter in this section referred to as the encroacher) from such land and by order, proclaimed in the manner mentioned in Section 23, prohibit repetition of the encroachment therein:

Provided that no encroacher shall be ejected under this clause unless he has been given a reasonable opportunity of showing cause against the ejectment.

(b) the Revenue Officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of such encroachment and may, by order, require the encroacher to pay the damages within such period and in such installments as may be specified in the order;

(c) if the encroacher has erected any building or other structure or has grown crops or planted trees on the encroached land it shall be competent for the Revenue Officer, while ordering his ejectment, to dismantle such building or other structure and confiscate any produce or other material on such land and put the same in public auction and deposit the sale proceeds thereof into the Government Treasury; and

(d) The Revenue Officer may impose upon the encroacher a fine up to (one thousand rupees per Bigha or part thereof in the case of first encroachment) and, where the encroachment is repeated, a fine upto (two thousand rupees per Bigha or part thereof for each such subsequent encroachment).

In the present case, the Petitioner, admittedly, was coming in possession of the land in dispute as a tenant under the previous owner, Raja Rajinder Singh, since prior to the coming into force of the Ceiling Act and the vesting of the land in the State on its having been declared surplus. Therefore, the Petitioner cannot be said to have "encroached upon" the Government land within the meaning of Section 163, quoted above. Therefore, the Petitioner could not have been dealt with and proceeded against under the provisions of the said section. The order dated 22-6-1985 of the Financial Commissioner (Appeals) as at Annexure "P-6", therefore, is bad and liable to be quashed on this short ground alone.

The course open to the Collector for taking possession of the land in dispute on its becoming surplus was to proceed against the Petitioner u/s 12 of the Ceiling Act, which provides:

(1) The Collector may, by order in writing, at any time after an area becomes surplus, direct the person in possession of such area to deliver possession thereof within ten days of the service of the order on him to such person as may be specified in the order.

(2) If the person in possession of surplus area refuses or fails without reasonable cause to comply with the order made under Sub-section (1), the Collector may take possession of the surplus area and may for that purpose use such force as may be necessary.

Next comes the question-whether the Petitioner can be conferred the proprietary rights qua the land in dispute u/s 104 of the Tenancy Act, 1972. The answer to the same is simply-No. Firstly, the tenancy of the Petitioner came to an end on the land having become surplus and vested in the State. Secondly, even if it be assumed that the tenancy never came to an end, the proprietary rights cannot be conferred on the Petitioner in view of the proviso u/s 104, Tenancy Act, which reads:

Provided that nothing contained in this section shall apply to such land which is either owned by or is vested in the Government under any law, whether before or after the commencement of this Act, and is leased out to any person.

Consequently, the present petition is partly allowed and the order dated 22-6-1985 of the Financial Commissioner (Appeals) as at Annexure "P-6" is quashed. No order as to costs.

Be it stated, that the quashing of the order dated 22-6-1985 (Annexure "P-6") will not in any manner preclude the Respondent No. 1 to recover the possession of the land in dispute in accordance with the provisions of Section 12 of the Ceiling Act.

Petition partly allowed.