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1996 Supreme(HP) 242
High Court Of Himachal Pradesh
A.L.VAIDYA,R L.KHURANA
ROSHAN LAL - Appellant
Versus
STATE OF H.P. - Respondent
Civil Writ Petition No. 742 of 1985
Decided On : 12/06/1996
For the petitioner:R. K. Sharma, Advocate. For the respondent(s):Mrs. Shyama Dogra, Dy, Advocate General.
A tenant in possession of land prior to its vesting in the State under the Ceiling Act cannot be considered an encroacher within the meaning of section 163 of the H.P. Land Revenue Act, 1953, and cannot be proceeded against under that provision.
Headnote:
LAND REFORMS - H.P. CEILING ON LAND HOLDINGS ACT, 1972 - H.P. TENANCY AND LAND REFORMS ACT, 1972 - H.P. VILLAGE COMMON LANDS (VESTING AND UTILIZATION) ACT, 1974 - H.P. LAND REVENUE ACT, 1953 - SURPLUS LAND - TENANCY RIGHTS - PROPRIETARY RIGHTS - EJECTMENT - ENCROACHMENT - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:
The petitioner, a tenant of land declared surplus under the H.P. Ceiling on Land Holdings Act, 1972, challenged the order of ejectment passed against him under section 163 of the H.P. Land Revenue Act, 1953, and sought conferment of proprietary rights under section 104 of the H.P. Tenancy and Land Reforms Act, 1972.
Finding of the Court:
1. The land in dispute vested in the State under the Ceiling Act on its declaration as surplus, not under the H.P. Village Common Lands (Vesting and Utilization) Act, 1974. 2. The petitioner, being a tenant prior to the vesting of the land in the State, was not an encroacher within the meaning of section 163 of the H.P. Land Revenue Act, 1953, and could not be proceeded against under that provision. 3. The petitioner was not entitled to conferment of proprietary rights under section 104 of the Tenancy Act, as the land was vested in the Government and leased out to him.
Issues: 1. Whether the land in dispute vested in the State under the Ceiling Act or the H.P. Village Common Lands (Vesting and Utilization) Act, 1974. 2. Whether the petitioner could be proceeded against under section 163 of the H.P. Land Revenue Act, 1953, for encroachment. 3. Whether the petitioner was entitled to conferment of proprietary rights under section 104 of the Tenancy Act.
Ratio Decidendi: 1. The allotment of a portion of the land in dispute to certain persons by the Collector under section 15 of the Ceiling Act and the appeal filed by the petitioner under section 20 of the Act established that the land vested in the State under the Ceiling Act. 2. The petitioner, being in possession of the land as a tenant prior to its vesting in the State, could not be considered an encroacher within the meaning of section 163 of the H.P. Land Revenue Act, 1953, and therefore could not be proceeded against under that provision. 3. The proviso under section 104 of the Tenancy Act barred the conferment of proprietary rights on the petitioner since the land was vested in the Government and leased out to him.
Final Decision: The petition was partly allowed. The order of ejectment passed against the petitioner under section 163 of the H.P. Land Revenue Act, 1953, was quashed. However, the quashing of the order did not preclude the State from recovering possession of the land in accordance with the provisions of section 12 of the Ceiling Act.
R L. Kborana, J.-—By virtue of the present writ petition filed under Articles 226 and 227, Constitution of India, the petitioner, Roshan Lal, has approached this court, inter alia, seeking the following reliefs:-— (a) quashing of the order dated 22-6 1985 of the Financial Commissioner (Appeals), H. P., as at Annexure “T-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, khataual I o. I min and khewat No. l 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.
2. Briefly stated, the facts giving rise to the present petition are these. Land measuring 44 kanals 15 marlas comprising of khasra No. 9t khatauni No. 1 and khewat No. 1 of village Jatuha, Mauza Balduhak Tehsil and District Ha mirpur (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 brothers S/Shri Munshi Ram and Dharam Singh on 1^-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 brothers.
3 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 abovementioned land measuring 44 kanals 15 mailas, which was leased out to the petitioner and his brothers, as surplus
4. 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 Under section 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 brothers. The State of H. P , respondent No !f instead of conferring proprietary rights on the petitioner and his brothers, initiated proceedings under section 163, H. P. Land Revenue Act, 1953 against the petitioner for his ejectment from the land in dispute The Assistant Collector H.P. 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"
5. Further case of the petitioner is that on an earlier occasion as well proceedings for ejectment of the petitioner and his brothers 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 remmanded to the Col lector by the Divisional Commissioner vide order dated 30 6-W78, the matter has still not been decided by the Collector and is still pending
6. Being aggrieved by the
