State of Himachal Pradesh vs Ram Parkash and Others

Rajiv Sharma, Judge

This Regular Second Appeal is directed against the judgment and decree dated 31.05.2010, passed by the learned Additional District Judge (Fast Track Court), Una, District Una, H.P. in Civil Appeal No. 76 of 2008. Whether the reporters of the local papers may be allowed to see the judgment No. Material facts necessary for adjudication of this Regular Second Appeal are that respondent No. 1-plaintiff, Ram Parkash (hereinafter referred to as ''the plaintiff'' for the sake of convenience), filed a suit against the appellant-defendant (hereinafter referred to as ''the defendant'' for the sake of convenience), seeking declaration to the effect that the land detailed in the plaint, as entered in Jamabandi for the year 1996-97, situated in Village Takarla, Mauza Dhandari, Tehsil Amb, District Una, H.P., was coming in possession of the plaintiff, as non-occupancy tenant on payment of annual chakota/rent. The revenue entries of the suit land as in illegal possession of kabjan, i.e., possession in cultivation column of revenue record and the order dated 29.8.2003, passed by Assistant Collector 1st Grade to the extent of non-incorporating the name of plaintiff in the revenue record as non-occupancy tenant was absolutely wrong and illegal. According to him, earlier the suit land was owned and possessed by Gram Panchayat, Takarla. He was inducted as non-occupancy tenant by the Gram Panchayat in the month of June, 1970 on the basis of annual chakota/rent of Rs. 64.25/- per year. He was coming in possession over the suit land on payment of rent. According to him, the tenancy was never terminated nor determined by any lawful authority. The plaintiff has never relinquished his tenancy or ejected therefrom. However, in the first week of January, 2003, the plaintiff came to know that the revenue entries qua the suit land were wrongly recorded in cultivation column as kabjan against the actual and factual position on the spot. He applied for correction of revenue entries before the Assistant Settlement Officer, Kangra at Dharamsala. The application was forwarded to the Assistant Collector, 1st Grade-Cum-Tehsildar (Settlement) Barsar. The Assistant Collector, 1st Grade-Cum-Tehsildar Settlement after making a detailed inquiry, found the claim of the plaintiff to be genuine and correct and also found the plaintiff in possession by way of cultivation as non-occupancy tenant. The revenue entries and order dated 29.8.2003 of Assistant Collector 1st Grade to the extent of dismissing the application, according to the plaintiff, are wrong, false and illegal. According to the plaintiff, these entries and order of the Assistant 1st Grade, have no effect on the rights, title and interest of the plaintiff in the suit land. In the garb of above situation, in the 3rd week of November, 2003, the Halka Patwari, Kanoongo and Tehsildar, Amb started threatening the plaintiff to leave his possession or they would take forcible possession of the suit land. It is in these circumstances, the plaintiff has filed the suit.

The suit was contested by the defendant-State by filing a written statement. According to the defendant, the suit was not maintainable in the present form; the plaintiff was estopped by his act and conduct; the suit was time barred; the plaintiff has no cause of action and that the suit was not valued properly. On merits, it was contended that the suit land was owned by the State of H.P. and was in possession as ''Mukhtilif Kabijan Najayaj''. The suit land has vested in the State of H.P. free from all encumbrances under the H.P. Village Common Land Vesting and Utilization Act, 1974 vide mutation No. 1376 sanctioned on 30.12.1975. It was admitted that the plaintiff has filed an application before the Assistant Settlement Officer, Kangra Division at Dharamshala. The same was forwarded to the Tehsildar, Settlement Circle, Barsar. It was rejected on 29.08.2003. It was denied that the plaintiff was ever inducted as non-occupancy tenant over the suit land on the basis of annual chakota. It is further contended that the Gram Panchayat was not competent to grant suit land to the plaintiff as non-occupancy tenant, as according to the defendant, the land has vested in the State of H.P. free from all encumbrances.

On 15th March, 2004, the learned trial Court has directed to serve the General Public by way of publication in the ''Hindi Danik Tribune''. The same was published, however, no appearance was put in on behalf of the General Public. In these circumstances, the General Public, i.e., defendant No. 2 in the original suit, was proceeded ex parte.

The plaintiff filed the replication to the written statement. The issues were framed by the learned Civil Judge (Junior Division), Court No. II, Amb, District Una, H.P. on 06.12.2004. Learned Civil Judge (Junior Division), Court No. II, Amb, District Una, H.P. decreed the suit on 28.06.2007.

The defendant filed an appeal before the learned Additional District Judge (Fast Track Court), Una, District Una, H.P. The same was dismissed on 31.05.2010. Hence, this Regular Second Appeal.

It would be pertinent to mention at this stage that the respondents No. 2 to 8, namely, Surinder Kumar, Labhu Ram, Milkhi Ram, Waryam Singh, Vijay Kumar, Hans Raj and Parkash Chand moved an application before the 1st Appellate Court under Order 1 Rule 10 of the Code of Civil Procedure. The same was allowed on 09.03.2009 by the 1st Appellate Court.

This regular Second Appeal was admitted on the following substantial questions of law:

Whether Civil Court has jurisdiction to try and decide the case in view of Section 10 and 11 of the Himachal Pradesh Village Common Lands Vesting & Utilization Act, 1974?

Whether the Civil Suit as filed by the plaintiff is within limitation as the mutation No. 1376 dated 30.12.1975 has been sanctioned in favour of State Government under H.P. Village Common Lands Vesting and Utilization Act, 1974

Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the suit was filed beyond limitation and the Civil Court has no jurisdiction to decide the matter in view of Sections 10 and 11 of ''The Himachal Pradesh Village Common Lands Vested and Utilization Act, 1974'' (hereinafter referred to as ''the Act'' for the sake of brevity).

Mr. G.C. Gupta, learned Senior Advocate has supported the judgments and decrees passed by the Courts below.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

PW-1 is Shri Kishori Lal, Tehsildar (Settlement). He has stated in his cross-examination that he enquired into the application moved by the plaintiff in the capacity of Assistant Collector 1st Grade. He came to the conclusion that the plaintiff was coming as non-occupancy tenant over the suit land since 1970. He has proved the inquiry report Ex. PW-1/A. According to him, as per the copy of Khasra Girdawari, the name of the plaintiff was recorded as non-occupancy tenant from 1974-1977. He was inducted as non-occupancy tenant by the Gram Panchayat, Takarla on rent.

PW-2, plaintiff Sh. Ram Parkash has led his evidence by filing an affidavit. In his cross-examination, he has denied that he was in possession over the suit land as ''Najayaj Kabaz''. He voluntarily stated that he was non-occupancy tenant.

PW-3, Sh. Anil Kumar has deposed that he was Lumberdar of village Takarla and Up-pardhan of Gram Panchayat, Takarla. He also stated that he had been seeing the plaintiff in possession over the suit land as non-occupancy tenant. He has denied the suggestion that the plaintiff never paid any rent to the Gram Panchayat.

PW-4, Shri Karim Baksh has deposed that in the month of June, 1970, the plaintiff was inducted as non-occupancy tenant over the suit land on payment of rent and from that period he was in possession over the suit land in his capacity as nonoccupancy tenant.

According to DW-1, Padam Raj, Patwari, the suit land was owned and possessed by the State of Himachal Pradesh. The land was vested in the State of Himachal Pradesh vide mutation No. 1376 sanctioned on 30.12.1979. In his cross-examination, he stated that the plaintiff was in possession of the suit land for the last more than 35-36 years. He also admitted that the plaintiff was cultivating the suit land from the time of Panchayat, as nonoccupancy tenant on payment of rent.

It is evident from report, Ex. PW-1/A that a detailed inquiry was conducted by the learned Assistant Collector 1st Grade-Cum-Tehsildar (Settlement) and it was found during the course of inquiry that the plaintiff was in possession of the suit land as non-occupancy tenant under the Gram Panchayat since 1970 and he was not dispossessed. DW-1, Padam Raj, Patwari has also admitted the possession of the plaintiff over the suit land. No competent authority has passed the orders to terminate the tenancy of the plaintiff.

It is made clear that in view of the provisions contained u/s 104 of the H.P. Tenancy and Land Reforms Act, 1972, the proprietary rights cannot be conferred upon the plaintiff, but he has right to continue in possession till the tenancy is terminated in accordance with law. The land was owned by the Gram Panchayat at the time when the plaintiff was inducted as tenant. It is always open to the Collector under sub-section (1) of Section-4 of the H.P. Village Common Lands Vesting and Utilisation Act, 1974 to call for from the Panchayats in his district, the record of leases, contracts or agreements entered into by the Panchayats in respect of any land vested in the Panchayats under the Punjab Village Common Lands (Regulation) Act, 1961 and the rules made thereunder and examine such record for satisfying himself as to the legality or propriety of such leases, contracts or agreements. It is further provided under sub-section (2) of Section-4 that where on examination of the record under sub-section (1) and after making such enquiry as he deems fit, the Collector is satisfied that such leases, contracts or agreements are in accordance with the provisions of the said Act and rules, he shall pass orders declaring such leases, contracts or agreements having been made on behalf of the State Government and will fix the lease money at the rate notified by the State Government from time to time. However, as per sub-section (3) of Section-4 where on such examination and enquiry the Collector finds that a lease, contract or agreement has been entered into in contravention of any of the provisions of the said Act or the rules made thereunder or has been entered into as a result of fraud or concealment of facts or is detrimental to the interest of the estate right-holders, he shall cancel such a lease, contract or agreement and such person shall be liable to ejectment under the provisions of Section 150 of the Punjab Land Revenue Act, 1887.

Thus, it is open to the Collector to call for the records from the Panchayat to see whether the plaintiff was inducted as tenant in accordance with law or not. The regulation of use and occupation of lands vested or deemed to have been vested in Panchayats were regulated under Section-5 of The Punjab Village Common Lands (Regulation) Act, 1961 and the Rules framed thereunder. The Punjab Government has framed The Punjab Village Common Lands (Regulation) Rules, 1964, the manner in which and the purpose for which Shamilat deh may be used.

According to Section 37 of the Himachal Pradesh Panchayat Rules, 1971, the Gram Panchayat could not transfer by way of lease, licence, contract or agreement, any immovable property vested in it, except with the previous approval of the Director with such conditions as he may impose; provided that the land which vested in the Panchayats under the Punjab Village Common Lands (Regulation) Act, 1961 or the land, the management and control of which vested in the Panchayat under the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 could continued to be leased according to the rules under the said Acts and instructions issued by the Government from time to time in pursuance of the said Act and the rules made thereunder.

Tehsil Amb, District Una was part of Punjab in 1970 and The Punjab Village Common Lands (Regulation) Act, 1961 and The Punjab Village Common Lands (Regulation) Rules, 1964 framed under Section-15 of The Punjab Village Common Lands (Regulation) Act, 1961 were applicable in the area.

According to Section 10-A of The Punjab Village Common Lands (Regulation) Act, 1961, the Collector is empowered to call for from any Panchayat in his district the record of any lease, contract or agreement entered into by the Panchayat in respect of any land vested or deemed to be vested in it, whether such lease, contract or agreement is entered into before or after the commencement of Punjab Village Common Lands (Regulation) Amendment Act, 1964, and examine such record for the purpose of satisfying himself as to the legality or propriety of such lease, contract or agreement. Section 10-A reads thus:

Section 10-A. Power of Collector to cancel or vary lease etc. of lands vested in Panchayats-

(1) Notwithstanding anything contained in this Act or the Shamilat Law or in any other law for the time being in force, the Collector may call for from any Panchayat in his in his district the record of any lease, contract or agreement entered into by the Panchayat in respect of any land vested or deemed to be vested in it, whether such lease, contract or agreement is entered into before or after the commencement of Punjab Village Common Lands (Regulation) Amendment Act, 1964, and examine such record for the purpose of satisfying himself as to the legality or propriety of such lease, contract or agreement.

(2) Where, on examination of the record under sub-section (1) and after making such inquiry, if any, as he may deemed fit, the Collector is satisfied that such lease, contract or agreement:-

such inquiry, if nay, as he may deemed fit, the Collector is satisfied that such lease, contract or agreement:-

(i) has been entered into in contravention of any of the provisions of this Act or the rules made thereunder; or

(ii) has been entered into as a result of fraud or concealment of facts; or

(iii) is detrimental to the interests of the Panchayat as prescribed; the Collector may, notwithstanding anything as aforesaid, cancel the lease, contract or agreement or vary the terms thereof unconditionally or subject to such conditions as he may think fit. Provided that no order under this sub-section shall be passed by the Collector without affording an opportunity of being heard to the parties to the lease, contract or agreement

(3) Where the terms of any lease, contract or agreement have been varied by the Collector under sub-section (2), the variation shall, notwithstanding anything contained in this Act or the Shamilat Law or in any law for the time being in force, be binding on the parties to the lease, contract or agreement, as the case may be.

(4) Where the lessee or the person with whom a contract or agreement has been entered into by a Panchayat refuses to accept the variation made by the Collector under this section in the terms of his lease, contract or agreement, such lease, contract or agreement, as the case may, shall be deemed to be cancelled by the Collector under this Section with effect from the date of such refusal.

(5) Where under this section any lease, contract or agreement is cancelled or deemed to be cancelled or its terms are varied, the lessee or the person with whom the contract or agreement has been entered into, who suffers by such cancellation or variation, is entitled to receive compensation to be assessed by the Collector for any loss or damage caused to the lessee or such person which naturally arose in the usual course of things from such cancellation or variation.

Provided that no such compensation shall be given for any remote and indirect loss or damage sustained by reasons of such cancellation or variation:

(6) Notwithstanding anything in anything contained in any law of the time being in force, the amount of compensation awarded by the Collector under this section shall be payable by the Panchayat in the prescribed manner and shall be valid charge on the Sabha fund.

(7) Any party to a lease, contract or agreement aggrieved by any order of the Collector made under this Section may, within a period of thirty days from the date of such order, appeal to the Commissioner, whose decision thereon shall be final.

The defendants have not taken a specific ground in the written statement that the suit was not maintainable in view of Sections 10 and 11 of the Act. What has been stated in the preliminary objections, is that the suit was not maintainable in the present form. It has not been explained why the suit was not maintainable. This ground has also not been taken in the appeal preferred against the judgment dated 28.06.2007 before the learned Additional District Judge (Fast Track Court), Una, District Una, H.P. It was necessary for the defendant to plead that the suit was not maintainable in view of Sections 10 and 11 of the Act. This ground has been taken for the first time in the second appeal and the same cannot be permitted to be raised at this stage. The only issue which was framed with regard to jurisdiction by the learned trial Court on 06.12.2004 reads thus:

Whether this Court has no jurisdiction to try the present suit, as alleged? OPD

The plaintiff has filed the suit seeking declaration that he was non-occupancy tenant over the suit land and the revenue entries in the column of cultivation were wrong. He has also assailed the order passed by the Assistant Collector 1st Grade, dated 29.08.2003, whereby the name of the plaintiff was not incorporated as non-occupancy tenant. According to order dated 29.08.2003, passed by the Assistant Collector 1st Grade-Cum-Tehsildar (Settlement), Barsar, the plaintiff was in possession of the suit land in the capacity of non-occupancy tenant under the Gram Panchayat w.e.f. the year 1970. He was never dispossessed from the suit land. However, the Assistant Collector, 1st Grade-Cum-Tehsildar (Settlement), Barsar came to the conclusion that he had no power to decide the matter to correct the revenue entries. The plaintiff was advised to file an application before appropriate Forum. It is in these circumstances, the Civil Suit was filed and the Civil Court had the jurisdiction to decide the matter.

The plaintiff has challenged the order dated 29.08.2003, passed by the Assistant Collector, 1st Grade-Cum-Tehsildar (Settlement), Barsar and the suit was filed on 12.03.2004. It has been filed within a period of one year. In these circumstances, it cannot be said that the suit was barred by limitation.

Accordingly, in view of the observations and discussions made hereinabove, there is no substantial question of law involved in this Regular Second Appeal and the same is dismissed being devoid of merit.

C.M.P. No. 527 of 2011

In view of the view taken by this Court hereinabove, this application is rendered infructuous and the same is dismissed having become infructuous.