Himachal Pradesh High Court
State Of H.P vs Smt. Ram Rakhi And Others on 14 August, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 138 of 2004 .
Reserved on 27th July, 2015
Decided on: 14th August, 2015
State of H.P. .......Appellant.
Versus
Smt. Ram Rakhi and others. ...Respondents.
of
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1 No. rt For the appellant: Mr. D.S Nainta, Addl. A.G with Mr. Pushpinder Jaswal, Dy. A.G. For the respondent: Mr. K.D. Sood, Senior Advocate with Mr. Rajnish K. Lall, Advocate for respondents No. 1, 8 to 11 and 17 to 19.
None for the remaining
respondents.
Dharam Chand Chaudhary, Judge.
The State of Himachal Pradesh, (defendant in the trial Court), is in second appeal before this Court.
Challenge herein is to the judgment and decree passed by learned Additional District Judge, Una on 27.12.2003 in Civil appeal (RBT) No. 50/95/94, whereby the appeal has been dismissed and the judgment and decree 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 2passed by learned trial Court in Civil Suit No. 539 of 1987 affirmed.
.
2. The complaint is that the suit land entered in khewat No. 61min, Khatoni No. 246min, Khasra No. 333 and 331 measuring 0-21-65 hectares situated in village of Chhaproh is 'Shamlat' and in allotable pool, as per fehrist (list) Ext. D-21 and Ext. D-22 of the appellant-
defendant.
rt However, both Courts below have erroneously concluded that the same is 'Charand' and in possession of the respondents-plaintiffs as 'Bartandaran' (the right holders) of village Chhaproh, Tehsil Amb, District Una, H.P. The entries showing the suit land in possession of 'Bartandaran' are nonest, in view of the order dated 02.02.1990 passed by Settlement Collector, Kangra Division at Dharamshala in Misal No. 2/90, as reflected in rapat rojnamcha wakayati, Ext. D-
20, whereby such entries were ordered to be deleted and the suit land is recorded in the revenue record as 'Rafai-am'(for the benefit of public at large) and the entry 'Chargah Bila Darakhtan' was also deleted and the suit land entered as 'Banjar Kadim'. The suit land, ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 3 therefore, is stated to be neither in possession of the plaintiffs in the capacity of 'Bartandarans' nor its nature .
'Charagah Bila Darakhtan'. The same rather is in allotable pool of the appellant-defendant under H.P. Village Common Lands (Vesting and Utilization) Act, 1974 of (hereinafter referred to as the 'Act') hence, can be put to use for any common purpose for the benefit of public rt at large. The appellant-defendant, therefore, intended to raise construction of a 'Sarai' over a portion of the suit land measuring 2 kanals for being used by the pilgrims and devotees visiting an old temple situated over the suit land and also by the local inhabitants. The suit filed by the plaintiffs for the relief of permanent prohibitory injunction is stated to be without any merits, however, irrespective of that both Courts below have erred in law in decreeing the same against the appellant-defendant.
3. The impugned judgment and decree has further been assailed on the grounds that the findings recorded by both Courts below qua Ext. D-21 and Ext. D-
22 not proved, are against the law and facts, because according to the appellant-defendant, Ext. D-21 and Ext.
::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 4D-22 are not two different documents but only one document containing two leaves vide which 'Shamlat' .
land was divided by the Collector into two pools i.e. one reserved pool and another allotable pool. The order Ext.
D-21/22 passed on 25.02.1988 bears the signature of of Collector and also the other statutory authorities and is duly certified by the Patwari concerned. Otherwise also, rt no objection was raised when this document produced in evidence. The evidence, to the contrary is stated to legally and factually unsustainable. Also that, both Courts below have ignored the basic principles of the Act. The Act on the face of it is a complete Code and Section 10 thereof bars the jurisdiction of a Civil Court.
Therefore, had the plaintiffs been aggrieved from putting the suit land in an allotable pool vide order of the Collector, they would have questioned the same before the State Government or any other officer authorized in this regard at an appropriate stage. The amendment in the Act, particularly in its definition Clause 2(a) (1), that the common purposes includes grazing, collection of fuel wood and tree leaves for fodder, school buildings, ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 5 Panchayat Ghars, Mahilla Mandal Bhawans, School Playgrounds, Community Halls, Janj Ghars, Dispensaries, .
Government Offices, Kisan Mandies, Tree Plantation under various State Government Schemes and any other public facilities has not been appreciated. The of construction of 'Sarai' is covered under the definition of common purpose and as such no objection to such rt construction work can be allowed to be raised. The findings that the construction of a 'Sarai' will change the user of the land from common purpose are also stated to be against the law and facts. It is submitted that 'Rafai-am' means that the land is meant for the benefit and welfare of general public including inhabitants of the area. The appellant-defendant is constructing a 'Sarai' in a small portion of the land for the benefit of public and it has not been established as to how the same will diminish the grazing rights of inhabitants. The findings that 50% of land is not reserved for common purposes are also against the evidence on record. Both Courts below have not placed reliance on the documents Ext. D-21 and Ext. D-22, however, to the ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 6 contrary held that the land reserved for common purposes is less than 50%. The word common purposes .
allegedly have been given a narrow meaning. The appellate Court has further erred in holding that the order passed by the Collector is null and void, without of there being any challenge to the same in the plaint.
4. The appeal has been admitted on the rt following substantial questions of law:
1. Whether Ld. Courts below have passed the judgment/decree without appreciating the provisions of H.P. Village Common Land Vesting and Utilization Act 1974 and ignored Ext. D-21 and D-22.
2. Whether civil court has got the jurisdiction to entertain and decide the suit where there is specific bar u/s 10 of H.P. Village Common Land Vesting and Utilization Act 1974.
3. Whether the civil court may directly entertain the suit if the objections by the Villagers have not been filed as per the H.P. Village Common Land Vesting and Utilization Act 1974 when the Collector under the Act passed the order.::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 7 5. Substantial questions of law No. 1 and 3
pertain to the non-appreciation of the provisions under .
the Act and documents Ext. D-21 and Ext. D-22. It has, therefore, been urged on behalf of the appellant-
defendant that on this count alone, the judgment and of decree is vitiated and is not legally sustainable.
6. The suit land admittedly was vested in the rt Gram Panchayat under the provisions of Punjab Village Common Lands (Vesting and Utilization) Act, 1954 and entered in the revenue record as 'Mufidaam. Its old Khasra numbers were 838/297 and 298 and area 7-5. It is recorded so in the Jamabandis for the year 1950-51 and 1955-56 Ext. P-1 and Ext. P-2. As per the entries in the Jamabandis for the year 1970-71 and Ext. 1980-81 Ext. P-3 and Ext. P-4 the same has been entered as 'Rafai- am'.
Subsequently, coming into being of the Act, suit land in terms of Section 3 thereof came to be vested in the State of Himachal Pradesh and denoted by new Khasra Nos. 333 and 331. The same instead of 'Rafai-am' came to be entered in the possession of 'Bartan-Bartandaran' and its nature changed to 'Charagah Bila Darakhtan ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 8 from 'Banjar Kadim'. A reference to this effect can be made to the entries in Jamabandi for the year 1986-87, .
Ext. P-5. Ext. D-20, rapat rojnamcha reveals that as per order dated 2.2.1990 passed by Settlement Collector, Kangra Division under the column of possession, the suit of land came to be changed from Bartan-Bartandaran' to 'Rafai-am'. The word 'Rafai-am' admittedly stands for rt 'public at large'. Meaning thereby that as per entries in the revenue record, the suit land could have been used for the larger public interest. The order passed by the Settlement Collector seems to be not challenged by the plaintiffs, as neither any pleadings nor any proof to this effect brought on record. Therefore, the suit land admittedly is in the ownership of the State Government, whereas, to be utilized for the benefit of public at large.
7. Here, it is relevant to discuss that how the land vested in the State Government is to be utilized.
Section 8 of the Act which takes care of this aspect of the matter, reads as follows:-
::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 98. Utilization of land vested in the State Government. - (1) All lands vested in the State .
Government under this Act shall be utilized for the following purposes:-
(a) an area not less fifty percent of the total area vested in the State Government under Section 3 of this Act for grazing and other of common purposes of the inhabitants of an estate; and
(b) The remaining land-
rt(i) for allotment to a landless person or any other eligible person ; or
(ii) for allotment of site to a handicapped or houseless person for the construction of a house;
(iii) for allotment of land to the eligible persons under the schemes notified by the State Government for providing houses to the poorer sections of the society;
Under a scheme to be claimed by the State Government by notification in the official Gazette and the allottee shall pay an amount at the rate of forty-eight times of the land revenue and rates and cesses chargeable on the land allotted to him under the said scheme, either in lump sum or in six monthly installments not exceeding four.
::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 10(2) The land reserved under clause (a) of sub- section (1) of this section shall be .
demarcated by such Revenue officer and in such a manner as may be prescribed.
(3) Any scheme framed by the State Government under clause (b) of sub-section (1) of this section may provide for the terms of and conditions on which the land is to be allotted.
(4) The State Government may, by
rt
notification in the Official Gazette, add to, amend, vary or revoke any scheme made under this section."
8. It is apparent from the provisions ibid that 50% of the total area vested in the State Government under Section 3 of the Act is to be reserved for grazing and other common purposes of the inhabitants of the estate concerned, whereas, remaining for allotment to landless, handicapped or houseless persons and also to the eligible persons under the scheme notified by the State Government.
9. In the case in hand, while resorting to the provisions of Section 8 ibid, out of 'Shamlat' land of ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 11 patwar circle, Chhaproh, Tehsil Amb, District Una, the Collector has divided the same into allotable .
(Government) pool and for 'Charand'. Defendant-State has placed reliance on Ext. D-21 and D-22 in this regard.
Ext. D-21 makes it crystal clear that the suit land was kept of in allotable (Government) pool. Both Courts below have not relied upon this document on the ground that the rt same is not complete nor attested by any authority. It is, however, not so, as Ext. D-21 and Ext. D-22 is the complete document. While Ext. D-21 depicts the bifurcation for grazing and other common purposes of the inhabitants, Ext. D-22 is in continuity. Second page (Ext. D-22) contains a note that in the total 'Shamlat' land 50% has been left for grazing and common purposes. This document bears the signatures of Patwari, Girdawar, R.O., S.D.M and finally that of Collector, who has approved the bifurcation of the land in Ext. D-21 on 29.02.1988. Not only this, but the Patwari, patwar circle, Chhaproh has certified Ext. D-22 as true and correct as per original under his signatures and date. This document, therefore, is not incomplete but complete in ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 12 all respects. The case, as set out by the appellant-
defendant, in the grounds of appeal, therefore, carries .
substance and the findings to the contrary recorded by both Courts below are not legally and factually sustainable.
of
10. The suit land, therefore, is in allotable pool and not part of the land which the Collector has left for rt being used as 'Charand' for common purposes of the inhabitants. On bifurcation of the land so vested in the State Government, the same is required to be demarcated in terms of Rule 6 of Himachal Pradesh Village Common Purposes (Vesting and Utilization) Rules, 1975. Rule 6.5 demonstrates that the land used for common purposes like cattle ponds, manure pits, sand bihag, kuhls, paths and the land recorded in the khataunis, of 'Sharai-am' and 'Rafai-am' shall continue to be so used. Admittedly, word 'Sharai-am' stands for "inhabitants of the estate", whereas, 'Rafai-am' public at large. The suit land in the revenue record has been entered as 'Rafai-am'. The same otherwise also in the Government pool not form part of the land meant for ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 13 grazing and common purposes of the inhabitants. The definition as assigned to word 'common purposes' under .
Section 2 (a-1) of the Act reads as follows:
(a-1) "Common purposes" means and includes grazing, collection of fuel wood and tree leaves for fodder, school buildings, of Panchayat Ghars, Mahila Mandal Bhawans, School Playgrounds, Community Halls, Janj Ghars, Dispensaries, Government Offices, rt Kisan Mandies, tree plantation under various State Government Schemes and any other public facilities."
11. The definition ibid, therefore, makes it crystal clear that the land in addition to the common purposes specifically mentioned can also be used for providing any other facilities to the public. Therefore, if the appellant-defendant has planned to raise construction of a 'Sarai' over a small portion thereof i.e. 2 kanals, that too, when the suit land is in Government pool, it is not understandable as to what prejudice will be caused thereby to the plaintiffs. Admittedly, there exists an old temple and the 'Sarai' has been proposed to be ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 14 constructed to provide shelter to the devotees visiting the temple. The inhabitants including plaintiffs will also .
be benefited by the construction of 'Sarai' because they can also put the same in use as and when there is common and individual function(s) in the temple. True it of is that the land reserved for grazing of cattle and common purposes has to be used by the inhabitants of rt the estate concerned as contained under Section 8(i) of the Act. However, irrespective of the suit land is in the Government pool and not in the pool reserved for grazing and common purposes and even if in the pool reserved for grazing and common purposes of inhabitants as per the meaning under Section 2(a-1) of the Act assigned to words "common purposes" can also be put to use by the Government for providing facilities to the public.
12. Both Courts below have also erred in not placing reliance on Ext. D-21 and Ext. D-22 and to the contrary erroneously concluded that the suit land is grazing land and meant for common purposes of local inhabitants and as such could have not been utilized for ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 15 the purpose of raising construction of 'Sarai', forgetting that vide Ext. D-21 and Ext. D-22, the suit land on .
bifurcation fell in the allotable pool and not in the pool reserved for grazing and common purposes of local inhabitants. Both Courts below have also failed to of appreciate that the entries in the column of possession of 'Bartan-Bartandaran' were ordered to be changed rt into 'Rafai-am' vide order of the Settlement Collector which seems to be not assailed any further. As a matter of fact, had the plaintiffs been aggrieved from the order passed by the Settlement Collector, Kangra as reflected in the rapat rojnamcha, Ext. D-20 and the order Ext. D-21/22 qua bifurcation of the 'Shamlat' land of village Chhaproh into reserved pool and allotable pool, the plaintiffs should have preferred an appeal/review as provided under Section 9 and 9-A of the Act. The Act in fact is a complete Code. Therefore, without resorting to the remedies provided under the Act itself, the suit could have not been maintained. The objection qua maintainability of the suit has been decided by both Courts below, however, not in accordance with law.
::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 16The present is also a case where both Courts below have not appreciated the provisions contained under the Act .
in its right perspective. The findings, to the contrary, recorded by both Courts below are, therefore, vitiated and on this count the judgment and decree cannot be of said to be legally sustainable. Otherwise also, the use of small portion of the suit land by the State Government rt that too for a benevolent purpose i.e. construction of a 'Sarai', no prejudice is likely to be caused to the plaintiffs.
Therefore, in all fairness and in the ends of justice, the suit should have been dismissed, as no case is made out for granting the decree of permanent prohibitory injunction in favour of the respondents-plaintiffs.
13. Now, if coming to substantial question of law No. 2, the jurisdiction of the Civil Court, of course, is barred under Section 10 of the Act, however, the appellant-defendant did not raise any objection to this effect in the trial Court. Otherwise also, in view of findings hereinabove that both Courts below have failed to appreciate the provisions contained under the Act in its right perspective, it is not deemed appropriate to go ::: Downloaded on - 15/04/2017 18:45:41 :::HCHP 17 into and adjudicate this question at this stage, when it was never raised either in the trial Court or before .
learned lower appellate Court. All the aforesaid substantial questions of law are answered accordingly.
14. In view of what has been said hereinabove, of this appeal succeeds and the same is accordingly allowed. Consequently, the judgment and decree rt passed by both Courts below are quashed and set aside and the suit dismissed, however, with no orders so as to costs.
August 14, 2015 (Dharam Chand Chaudhary)
(naveen) Judge
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