The main legal point established is the prohibition of benami transactions and the enforcement of Section 118 to prevent circumvention of land laws.

ORDER :

Narinder Chauhan, Financial Commissioner

This revision petition has been filed against the orders of Divisional Commissioner, Shimla, who in revenue appeal No. 128/2006 vide order dated 25.04.2008, upheld the orders of Collector Solan, who in case No. 51/13 of 1997, orders dated 17.04.2006, under Section 118 (3) (d) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, wherein land bearing khasra No. 629/1 measuring 0.2 bigha and khasra No. 940/630/1 measuring 0.8 bigha, total 0.10 bigha, situated in mauza Gahi, Tehsil Kasauli, District Solan, was ordered to be vested in favour of the State Government free from all encumbrances on the grounds of violation of Section 118 (1) of the 1972 Act.

2. The brief facts of the case are that the Tehsildar Kasauli, had sent a report dated 7.6.1994, alongwith relevant papers to the District Collector, Solan stating therein that Sh. Arun Jain resident of House No. 3237, Sector 21-D, Chandigarh has constructed a house on land comprising khasra No. 629/1 measuring 0-2 bigha and khasra No. 940/630/1 measuring 0-8 bigha kitas 2 total measuring 0-10 bigha situated in Mauja Gahi, Tehsil Kasauli, District Solan. That Sh. Durga Ram and Smt. Kanta Devi proforma respondents No. 2 and 3 respectively were the owners of this land and Sh, Arun Jain proforma respondent No. 4, who is a non-agriculturist and non Himachali, had constructed the house without the prior permission of State Government in utter violation of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The Additional Deputy Commissioner, Solan who was also exercising the powers of Collector, Solan started proceeding against the proforma respondents and confiscated the property in favour of the State. The Commissioner, Shimla Division, vide his order dated 25.03.1997, set aside the proceeding conducted by the Collector (ADM) Solan on the basis that the Collector (A.D.M.) has no jurisdiction to conduct the proceedings under Section 118 (3) (b) of the Act and directed Collector Solan, to conduct an enquiry afresh.

3. The lower Court after examination of witnesses and documentary evidence placed before it arrived at the conclusion that there had been clear violation of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and confiscated the land bearing Khasra No. 629/1 measuring 0-2 bighas and Khasra No. 940/630/1 measuring 0-8 bigha total 0-10 bighas situated in Mauja Gahi, Tehsii Kasauli, District Solan, Himachal Pradesh to the State of Himachal Pradesh. The appeal filed by the petitioner before Ld. Divisional Commissioner Shimla, was also dismissed, hence the present revision

4. Advocate for petitioner has argued that the orders of Ld. Divisional Commissioner dated 25.04.2008, are based on surmises and conjecture, and there is insufficient material on record to presume that a benami transaction has taken place that there has been non- application of mind. That the proforma respondents No. 4, was not associated with the enquiry, and proper material was not gathered either during the preliminary enquiry or even during the regular inquiry. That the inference drawn that the alleged property is a benami property owned by Sh. Arun Jain and the sister, is in sharp contrast to the revenue record wherein under Section 45 of the Himachal Pradesh Land Revenue Act, 1954, a presumption of truth is attached to the revenue entries which are in favour of petitioners and reliance has simply been placed on the fact that Sh. Nand Lal, predecessor in interest of the petitioners could not furnish any bills of material consumed or proof of income for the construction of house and the inquiry report and statement of PW-4 Sh. Sanjay Sharma, A.C. Parwanoo, who has stated that the building was funded by Sh. Arun Jain, proforma respondent No. 4, cannot be relied upon. It has been further argued that even if the statement is true, mere availing of a loan from Sh. Arun Jain, does not tantamount to proof of benami transactio