Himachal Pradesh High Court
State Of H.P And Others vs Bhagwan Dass And Others on 12 September, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
RSA No. 227 of 2019
Reserved on: 9.9.2019
Decided on : 12.9.2019
State of H.P and others ...Appellants.
Versus
Bhagwan Dass and Others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Yes.
Whether approved for reporting?1 For the Appellants: Mr. Vikrant Chandel, Deputy Advocate General.
For the Respondents: Mr. Ramakant Sharma, Sr. Advocate with Mr. Dinesh Bhatia, Advocate.
Sureshwar Thakur, Judge Through, the, instant appeal cast before this Court, the aggrieved defendants/appellants herein (for short "defendants), cast a challenge, upon, the concurrently recorded verdicts, by both the Courts below respectively, upon, Civil Suit No. 20/1 of 2005, and, upon Civil Appeal No. 18NL/13 of 1 Whether reporters of the local papers may be allowed to see the judgment?
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2014, (i) wherethrough the plaintiff's suit, for, rendition, of, a .
decree of declaration, and, for setting aside the order of cancellation of lease, visavis, the suit land, and, granted qua the plaintiff/respondent herein (for short "the plaintiff), stood decreed, and, also a decree of permanent prohibitory injunction, stood rendered against the defendants, hence, restraining them, from, making any interference, in, the possession, of, the plaintiff, upon, the suit land.
2. The brief facts of the case are that the land measuring 10 bigha out of land measuring 111 bigha 12 biswas, comprised in khata Khatauni No. 21/21 min, bearing khasra No. 66 min, situated in village Baindhu, Hadbast No. 29, Pargana Gullarwala, Tehsil Nalagarh, District Solan, H.P. (for short "the suit land") was alloted to the plaintiff by Gram Panchayat, Joghon, Tehsil Nalagarh, District Solan, on lease at the rate of Rs.1/ per bigha per year on 9.11.1970, vide, resolution No. 2, rendered by the Panchayat, and, accordingly, the plaintiff was put in physical possession of the suit land, as, ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...3...
lessee, and, lease so created was initially for five years, and, .
the plaintiff had deposited the lease money for five years with the Panchayat concerned, amounting to Rs.50/, and, as such the plaintiff entered into possession of the suit land. It is further averred that the plaintiff has not been dispossessed from the suit land at any point of time till date and he is still in possession of the suit land. It is further averred that the plaintiff has been in occupation of the suit land as lessee under a valid lease up to 8.11.1975 and thereafter he has been holding the suit land so leased to him, and, as such the defendants have no right title and interest to forcibly and illegally dispossess the plaintiff from the suit land except in due course of law. It is further averred that during the month of October, 2004 the defendants started extending threats through themselves and through their subordinates to forcibly dispossess the plaintiff from the suit land by proclaiming that the status of the plaintiff of being lessee in possession of the suit land is no more in existence and stood cancelled by the ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...4...
defendants, and, as such, the plaintiff obtained copies of the .
relevant lease record from the office of defendant No.2 and also obtained copies of revenue record appertaining to the suit land, and, on perusal whereof the plaintiff came to know that the entries showing the plaintiff to be in possession of the suit land were illegally and wrongly changed vide rapat No. 427 of 4.6.1995, upon, the order of Assistant Collector, Ist class, Nalagarh by Patwari Halqua which order was passed behind his back, on the basis of expart order of cancellation of lease in favour of the plaintiff passed by Sub Divisional Collect, Nalagarh on 31.5.1976 which order was also passed behind the back of the plaintiff as no notice prior thereto was issued in favour of the plaintiff nor the plaintiff was given any opportunity of being heard, and, therefore the order cancelling the lease of the plaintiff passed by the defendant No.2 is illegal null void and not binding upon the plaintiff, and, entries changed on the basis of the afore order also not binding upon the plaintiff. It is further averred that the defendants ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...5...
never took any steps nor followed mandatory provisions of .
Sections 3 and 4 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act (for short "the Act") and rules framed thereunder wherein it is clearly mandated in section 4 of sub section (3) that no order under sub section 2 and 3 shall be passed by the collector without affording an opportunity of being heard to the parties to the lease, contract or agreement, as such, the defendants have no right to interfere in the suit land.
3. The defendants, by filing the writtenstatement, have contested the suit of the plaintiff, and, have taken preliminary objections of locus standi, estoppel, limitation, case of action, jurisdiction, valuation and the suit is bad for want of mandatory notice under Section 80(1) CPC. On merits, it is denied that the plaintiff was allotted the suit land measuring 10 bighas as lessee by Gram Panchayat, Joghon, but averred that the plaintiff was allotted only 5 bighs of land by gram Panchayat, Joghon which stood cancelled vide order ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...6...
dated 31.5.1976 passed by defendant No.2 as the plaintiff has .
never deposited Chakota money either with the Gram Panchayat or with the replying defendants. It is denied that the plaintiff is in possession of the suit land since 1970. It is also averred that the plaintiff is stranger having no right title or interest over the suit land which is owned and possessed by the State of H.P and the plaintiff has concocted a false story in order to grab the government land. It is further averred that the plaintiff stood evicted from the suit land in pursuance of cancellation order passed by Sub Divisional Collector, Nalagarh on 31.5.1976 and the proforma defendant Khushi Ram who is brother of plaintiff has deposed before the Sub Divisional Collector, Nalagarh that the chakota of the plaintiff be cancelled due to the reason that the plaintiff is not entitled to lease of the land as the plaintiff has been living with his father who is owning 36 bighas of the land, and, as such the Sub Divisional Collector Nalagah has rightly cancelled the lease qua the suit land granted to the plaintiff by Gram ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...7...
Panchyat, Joghon. It is further averred that Sub Divisional .
Collector, Nalagarh when found that the wrong entries in the record are still existing even after passing of the order of cancellation of lease, further ordered on 3.5.1995 that the entries existing in the revenue record showing the plaintiff as lessee be corrected and the revenue entires were accordingly corrected. It is further averred that since the plaintiff is in possession of the suit land, therefore, there is no question of threatening the plaintiff by the defendants or its subordinates to dispossess him forcibly from the suit land. It is also averred that after scrutiny of records, it was found that both plaintiff and proforma defendant were shown in possession of 20 bighas of land as lessee which was wrong in view of the order of cancellation of lease of the plaintiff, and, as such, the Sub Divisional Collector, Nalagarh passed an order on 3.5.1995 that only proforma defendant be recorded as lessee of the land measuring 5 bighas whereas rest of the entry showing the plaintiff and proforma defendant as lessees was ordered to be ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...8...
deleted which was accordingly deleted vide rapat No. 427 of .
14.6.1995 and such order passed by the Sub Divisional Collector Nalagarh is also legal and valid, and, sub Divisional Collector, Nalagarh was fully competent to cancel the lease, contract or agreement under Section 4 of the Act, whenever reported to him and he has taken all the mandatory steps under Section 3 and 4 of the Act.
4. In the replication, the plaintiff has reiterated, and, reasserted the contents, as, enumerated in the plaint, and, has controverted contention(s) raised, in, the writtenstatement.
5. From the pleadings of the parties, the following issues were framed by the learned trial Court: "1. Whether the cancellation of lease is wrong, illegal and void as the defendants never took any steps or followed mandatory provisions, as alleged? OPP
2. Whether the revenue entries showing the plaintiff to be the lessee of th suit land till 14.6.1995 are illegally and wrongly changed, as alleged? OPP
3. Whether the plaintiff is entitled to the relief of declaration, as alleged? OPP ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...9...
4. Whether the plaintiff is also entitled to the .
relief of permanent prohibitory injunction, as prayed? OPP
5. Whether the suit is not maintainable? OPD
6. Whether the plaintiff is estopped to file the present suit on account of his acts, deeds, conducts and acquiescence? OPD
7. Whether the suit is time barred? OPD
8. Whether this Court has no jurisdiction to try and entertain the present suit? OPD
9. Whether the plaintiff has no cause of action against the defendants.
10. Whether the suit has not been valued properly for the purpose of Court fee and jurisdiction? OPD
11. Relief."
6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, decreed the suit of the plaintiff. In an appeal, preferred therefrom, by the aggrieved defendants, before the learned First Appellate Court, the latter Court, hence, affirmed the findings recorded by the learned trial Court.
7. Now the defendants have instituted the instant Regular Second Appeal before this Court, wherein, they assail ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...10...
the findings recorded, in the impugned verdicts, hence by both .
the learned Courts below.
8. The entire fulcrum of the lis engaging the contesting parties, is, founded upon the afore cancellation being a sequel of the proforma defendant, the brother of the plaintiff, making a deposition before the Collector Sub Division, Nalagarh qua the grant made, visavis, the suit khasra number, and, visavis the plaintiff, being amenable for cancellation given (a) his being ineligible for the afore grant
(b) and, the failure of the plaintiff, to, deposit the lease money.
9. For the afore order of cancellation, being construed to be , meritworthy, it necessitated qua its standing preceded by the authority concerned, evidently meteing the strictest compliance qua the provisions, borne, in Section 4 of the Act, provisions whereof stand extracted hereinafter: "4. Treatment of leases made by Panchayats. (1) The Collector shall call for from Panchayats in his district the record of eases contracts or agreements entered into by the Panchayats in respect of any land vested in the Panchayats under the Punjab Village ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...11...
Common Lands (Regulation) Act, 1961, (18 of 1961) .
and the rules made thereunder and examine such record himself to the legality or propriety of such leases, contracts or agreements.
(2) 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. Such lease money shall be recovered by the Panchayat concerned from the lessee.
(3) 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 rightholders, 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:(17 of 1887). Provided that no order under subsections (2) and (3) of this section shall be passed by the Collector without ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...12...
affording an opportunity of being heard to the parties .
to the lease, contract or agreement."
10. A perusal of the hereinbefore extracted provisions of Section 4 of the Act, makes imminent upsurgings, visavis, it being incumbent, upon, the cancelling authority, to, prior, to, its making an order, of, cancelling, the, apposite grant, it affording an opportunity of being heard, to, the purported errant concerned. However, a perusal of record, discloses that the afore dire statutory necessity, cast upon, the cancelling authority, remained uncomplied with, (i) hence, for want of meteing of the strictest mandatory compliance, visavis, the peremptory mandate, as, borne in Section of 4 of the Act, (ii) thereupon the order of cancellation, of, grant, as, made by the authority concerned, visavis, the suit khasra numbers, and, visavis, the plaintiff, rather suffers from a gross frailty, and, infirmity, obviously sparked by an evident deepest breach, of, the afore mandatory statutory provisions, being made, by the authority concerned.
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11. Be that as it may, even if the aggrieved defendants .
had contended, visavis, the cancellation, of, the afore grant, visavis, the suit khasra numbers, being a sequel, of, non deposit, of, lease money by the plaintiff. However, with the defendants, despite, holding all the records appertaining therewith, (i) yet theirs omitting to place them before the learned trial Court concerned, (ii) and, rather when only upon, their adduction or production hence before the Court below, the afore contention, would acquire both vigor and succor, (iii) whereas theirs omitting to adduce, the, afore apposite best evidence qua therewith, rather galvanizes an inference qua the defendants intentionally, and, deliberatively, withholding, the, afore records, from, the sight of the learned Courts below, merely for ensuring, qua, upon its being adduced, and, produced before the Court below, the afore contention becoming blunted, and, maimed.
12. In view of the above, there is no merit in the appeal, and, the same is accordingly dismissed. No question of ::: Downloaded on - 29/09/2019 04:17:52 :::HCHP ...14...
law, much less, a, substantial question of law hence arises for .
determination. The impugned verdicts are maintained and affirmed. Records be sent back. All pending applications stand disposed of accordingly.
12th September, 2019 ( Sureshwar Thakur ),
(priti) Judge.
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