Subhash Chand vs Financial Commissioner ...
2021 Latest Caselaw 4703 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

               ON THE 24th DAY OF SEPTEMBER 2021

                            BEFORE




                                                       .
               HON'BLE MR. JUSTICE RAVI MALIMATH,





                     ACTING CHIEF JUSTICE
                               &





             HON'BLE MS. JUSTICE JYOTSNA REWAL DUA

              LETTERS PATENT APPEAL No. 31 of 2019





       Between:-
    1. SUBHASH CHAND
    2. PAWAN KUMAR

       BOTH SONS OF LATE SHRI MILKHI RAM,

       PETITIONER NO.2 THROUGH HIS GPA
       PETITIONER NO.1
    3. RAJINDER KUMAR
    4. VIRENDER KUMAR,



       BOTH SONS OF SHRI SUBHASH CHAND,
       ALL RESIDENTS OF VILLAGE KHAROTA,
       TEHSIL JAWALI, DISTRICT KANGRA (H.P.)




                                                     ......APPELLANTS
       (BY SH. Y.P. SOOD, ADVOCATE)





       AND
    1. FINANCIAL COMMISSIONER (APPEALS),





       HIMACHAL PRADESH,
       SHIMLA-171 002 (H.P.)
    2. DIVISIONAL COMMISSIONER,
       KANGRA AT DHARAMSHALA (H.P.)
    3. EX. HONY. CAPT. TARA CHAND,
       S/O SHRI PIAR CHAND,
       R/O MOHAL SAKOH, TEHSIL JAWALI,
       DISTRICT KANGRA (H.P.)
                                                  ......RESPONDENTS




                                      ::: Downloaded on - 31/01/2022 23:07:38 :::CIS
                                      -2-


         (SH. ASHOK SHARMA, ADVOCATE GENERAL
         WITH SH. RANJAN SHARMA, MS. RITTA
         GOSWAMI & SH. VIKAS RATHORE, ADDITIONAL
         ADVOCATES GENERAL, FOR R-1 & R-2,
         SH. RAJNISH MANIKTALA, SENIOR ADVOCATE




                                                            .
         WITH SH. NARESH VERMA, ADVOCATE,





         FOR R-3)
         Whether approved for reporting? Yes.





             This Appeal coming on for admission this day, Hon'ble
    Ms. Justice Jyotsna Rewal Dua, delivered the following:

                               JUDGMENT

Because of 'merry-go-rounds' in the revenue Courts

spanning over four decades in three rounds of litigation, respondent

No.3, Landowner-an Ex-serviceman, has not been able to resume

his land from the appellants-tenants, to which he is entitled under

the provisions of Himachal Pradesh Tenancy and Land Reforms Act,

1974.

2. Facts:-

2(i). The land in question alongwith various other parcels of

land was recorded in joint ownership of respondent No.3 and his

brothers, sons of Sh. Piar Singh. A family partition took place, in

which the suit land fell to the share of respondent No.3.

2(ii). Respondent No.3 joined Indian Army on 08.09.1953.

Being in armed forces, he could not cultivate the land himself.

Respondent No.3 inducted Sh. Milkhi Ram, predecessor-in-interest

of the present appellants, as tenant over land comprised in Khasra

No.102, measuring 14 kanals 7 marla, in Mohal Kharota and Mehar

Singh & Rai Singh, sons of Sh. Ram Ditta as tenants over Khasra

.

No.1725, measuring 0-21-59 hectares, situated in village Chalwara.

2(iii). Respondent No.3 instituted a suit under Section 58 of

the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (in

short 'Act') against the aforesaid Sh. Milkhi Ram for recovery of rent.

The brothers of respondent No.3 were also impleaded as

respondents in the suit. During the pendency of the suit, Milkhi Ram

died and his legal heirs, i.e. the present appellants, were brought on

record. The contention of respondent No.3 that he was owner of the

suit land in terms of family partition, was supported by his brothers,

who were also parties to the case. The suit was decreed by the

Assistant Collector 1st Grade, Nurpur, District Kangra in favour of

respondent No.3 (plaintiff therein) on 20.10.1986. This judgment has

attained finality.

2(iv). Respondent No.3 retired from Army on 30.09.1985. On

18.10.1985, he applied for resumption of his land under tenancy.

The subsequent litigation history may be noticed in following

compartments.

First Round:-

2(iv)(a). The Land Reforms Officer Jawali/Tehsildar, vide his

order dated 02.04.1990, allowed the resumption application of

respondent No.3 upto 5 acres of land. He, however, held that under

the rules, respondent No.3/landowner cannot resume more than

.

50% of the tenancy land from the tenants.

2(iv)(b). The order dated 02.04.1990 passed by the Land

Reforms Officer, Jawali, was challenged by respondent No.3 before

the Sub-Divisional Officer, Nurpur, District Kangra. Respondent No.3

contended that he was entitled to resume the entire land under

tenancy. This appeal was dismissed on 20.01.1992.

2(iv)(c). The second appeal filed by respondent No.3 was

accepted by the Divisional Commissioner, Kangra on 18.08.1994.

The Divisional Commissioner remanded the case to the Court of

Collector, Kangra, holding that the impugned order did not discuss

the points raised before the Court.

Second Round:-

2(iv)(d). On remand, the Collector, Kangra, vide order dated

23.07.1997, quashed the order dated 02.04.1990, passed by the

Land Reforms Officer. The matter was remanded to the Land

Reforms Officer. The Collector directed the Land Reforms Officer to

allow the resumption of land from the tenants for self-cultivation by

excluding gair mumkin land.

2(iv)(e). The Land Reforms Officer vide order dated 17.04.1999,

held that respondent No.3 was authorized to resume land for self-

cultivation upto 5 acres. In all, an area of 0-75-35 hectares was

allowed to be resumed by respondent No.3.

.

2(iv)(f). The present appellants (tenants) preferred an appeal

against the order dated 17.04.1999 to the Collector. The appeal was

decided on 24.04.2001. The order of Land Reforms Officer was set

aside. The matter was again remanded to the Land Reforms Officer,

Jawali for fresh decision after taking into consideration the land,

Respondent

which was already in the ownership of land owner and to complete

the shortfall upto the limit of 5 acres for resumption of land.

2(iv)(g).

                                 No.3     challenged        the     order       dated

    24.04.2001    passed    by the      Collector,    before the          Divisional

Commissioner. The Divisional Commissioner vide order dated

07.03.2005, upheld the order passed by the Collector on

24.04.2001. He held that the Land Reforms Officer, Jawali, in his

order dated 17.04.1999, had not taken into consideration the land

owned by respondent No.3 in other mohals.

Third Round:-

2(iv)(h). Pursuant to the order passed by the Collector on

24.04.2001, as upheld by the Divisional Commissioner on

07.03.2005, the matter reached the Land Reforms Officer for the

third time. The Land Reforms Officer decided the case for the third

time on 23.06.2006. He held that respondent No.3 was not entitled

to resume any land from the tenants as he was already in

possession of the land in excess of permissible limit of 5 acres. The

.

resumption application moved by respondent No.3 on 18.10.1985

was rejected.

2(iv)(i). Respondent No.3 did not succeed in appeal before the

Collector, Kangra, who vide order dated 04.06.2007, upheld the

order dated 23.06.2006.

2(iv)(j).

Further appeal filed by respondent No.3 was accepted

by the Divisional Commissioner on 16.11.2009. It was held that the

ceiling of ownership of 5 acres in all is not relevant and is not

applicable to respondent No.3, who is covered under Sections

34(1)(d)(dd) and 104(8) & (9) of the Act. The orders dated

04.06.2007 passed by the Collector and 23.06.2006 passed by the

Land Reforms Officer, Jawali, were set aside. Respondent No.3 was

allowed to resume land from each tenant upto 5 acres.

2(iv)(k). Aggrieved, the tenants, i.e. present appellants, filed

revision petition before the Financial Commissioner. Taking stock of

the entire litigation and applicable legal provisions, the Financial

Commissioner vide order dated 22.01.2013, upheld the order dated

16.11.2009 passed by the Divisional Commissioner. Accordingly,

the revision petition was rejected.

2(v). Aggrieved against the orders passed by the Divisional

Commissioner on 16.11.2009 and by the Financial Commissioner on

21.02.2013, whereby respondent No.3 was allowed to resume land

.

upto 5 acres from each tenant, writ petition was filed by the

appellants. Learned Single Judge dismissed the writ petition on

14.06.2018. Not satisfied with the ever flowing litigation, the tenants

have preferred the instant appeal against the judgment passed by

the learned Single Judge.

3. Contentions:-

We have heard learned counsel for the parties and

gone through the material on record.

Learned counsel for the appellants contended that

respondent No.3 cannot be allowed to resume 5 acres of land from

the tenants. Learned counsel submitted that besides respondent

No.3, there were other co-owners, namely Amar Singh and Sahib

Singh. Milkhi Ram (predecessors-in-interest of the appellants) was

inducted as tenant over the land in question by all the co-owners.

The other co-owners had not exercised their right of resumption of

land. The right, title and interest of other two co-owners in the

tenancy land to the extent of their shares as per provisions of

Section 104 of the Act, had extinguished. Therefore, respondent

No.3 could not be allowed to resume the tenancy land. Learned

counsel also argued that the appellants had been conferred

proprietary rights with respect to the land falling to the shares of

Amar Singh and Sahib Singh. The corresponding entries were made

.

in the revenue record. Therefore, there was no occasion for the

authorities to allow respondent No.3 to resume 5 acres of land from

the appellants.

Defending the impugned judgment, learned Senior

Counsel for contesting respondent No.3 referred to the entire

chequered history of the litigation. In particular, he brought the

attention of the Court to the judgment dated 20.10.1986, passed by

the Assistant Collector 1st Grade, Nurpur, in a suit filed by

respondent No.3 under Section 58 of the Act, wherein respondent

No.3 was held to be the exclusive owner over the land in question

and entitled to claim rent from the present appellants. Learned

Senior Counsel contended that respondent No.3, being an

Ex-serviceman, was entitled to resume 5 acres of land from the

tenants in accordance with provisions of Section 104(1), (8) (9) and

Section 34(d)(dd) of the Act.

4. Observations:-

4(i)(a). Section 104 of the Act gives right to a tenant other than

occupancy tenant to acquire interests of landowner. Besides

conferring proprietary rights of tenancy lands upon non-occupancy

tenants, the section also provides right to the landowner to resume

the tenancy land before, the notified date, either 1.5 acres of

irrigated or 3 acres of un-irrigated land from one or more than one

.

tenants for his personal cultivation. On such resumption, right, title

and interest of the tenants over the tenancy land get extinguished.

Section 104(1)(2) and (3) read as under:-

"104. Right of tenant other than occupancy tenant to acquire interests of landowner.- (1) Notwithstanding

anything to the contrary contained in any law, contract, custom or usage for the time being in force, on and from the commencement of this Act, if the whole of the land of

the landowner is under non-occupancy tenants, and if

such a landowner has not exercised the right of resumption of tenancy land at any time since January 26, 1955, under any law as in force:-

(i) such a landowner shall be entitled to resume before the date to be notified by the State Government in

the official Gazette and in the manner prescribed, either one and a half acres of irrigated land or three

acres of un-irrigated land under tenancy from one or more than one tenants for his personal cultivation

and the right, title and interest (including contingent interest, if any) of the tenant or tenants, as the case may be, therefrom shall stand extinguished free from all encumbrances created by the tenant or tenants to that extent:

Provided that if the tenant has taken loan from the

- 10 -

State Government, a co-operative society or a bank for the improvement of tenancy land which the landowner has resumed under clause (i) or clause (ii) and has used such loan for the improvement of such land, then the

.

landowner shall be liable to repay the outstanding amount

of such loan and to the extent actually used for the said purpose and interest thereon to the State Government or

to the Cooperative Society or a bank, as the case may be, proportionate to the improved land resumed by him; Provided further that the landowner shall not be entitled

to resume from a tenant more than one half of the tenancy land;

(ii) in case the landowner holds less than one and a half

acres of irrigated land or three acres of un-irrigated

land in his personal cultivation, he shall be entitled to resume tenancy land only to make up the land under his personal cultivation to the extent of one and a

half acres of irrigated land or three acres of un- irrigated land, as the case may be, subject to the

other conditions laid down in this section;

(iii) the right, title and interest in the rest of the tenancy

land of the landowner, who is entitled to resume land under clauses (i) and (ii) shall vest in the tenant free

from all encumbrances with effect from the date to be notified by the State Government in the Official Gazette;

(iv) in case the land under the tenancy is partly irrigated and partly un-irrigated and the landowner intends to resume land of both these classes, he shall be

- 11 -

entitled to do so in the ratio and manner to be prescribed;

(v) in the event of any dispute between the landowner and the tenant with regard to the selection of land for

.

resumption, the first right of selection of the land

shall be that of the tenant who may exercise his right in the prescribed manner and before the date to be

notified by the State Government in this respect in the Official Gazette;

(vi) in case the tenant fails to exercise his right of

selection of land by the date notified under clause

(v), the Land Reforms Officer shall determine his share after giving the parties an opportunity of being

beard. In such a case also, the tenant shall be given

the first choice to select the land.

(2) Where the landowner does not cultivate the land resumed under sub-section (1) personally within one year

from taking possession thereof, then such land shall vest in the State Government on payment of an amount at the

rate of ninety-six times the land revenue plus rates and cesses and such land shall be disposed of by the State

Government in such manner as may be prescribed. In such an event the first right to get such land shall be that

of the tenant from whom the land was resumed by the landowner.

(3) All rights, title and interest (including a contingent interest, if any) of a landowner other than a landowner entitled to resume land under sub-section (1) shall be extinguished and all such rights, title and interest shall

- 12 -

with effect from the date to be notified by the State Government in the Official Gazette vest in the tenant free from all encumbrances:

Provided that if a tenancy is created after the

.

commencement of this Act, the provision of this sub-

section shall apply immediately after the creation of such tenancy."

4(i)(b). As per Section 104(8) of the Act, except in the manner

indicated under Section 104(9), the provisions of Section 104(1) to

(6) will not apply to such tenancy lands, where the landowner is a

serving member of the Armed Forces or is father of a person serving

in Armed Forces upto the extent of inheritable share of such a

member of the Armed Forces. As per Section 104(9), the provisions

of Sub-section 104(1) to (6) will remain inapplicable to such tenancy

lands during the period of service of these persons (landowners) in

the Armed Forces. Thereafter, the landowners of this category can

resume the land in accordance with and to the extent mentioned in

Section 34. Provisions of Section 104(8) and (9) read as under:-

"(8) Save as otherwise provided in sub-section (9), nothing contained in sub-sections (1) to (6) shall apply to a tenancy of a landowner during the period mentioned for each category of such landowners in sub-section 9 who,-

(a) is a minor or unmarried woman, or if married, divorced or separated from husband or widow; or

(b) is permanently incapable of cultivating land by

- 13 -

reason of any physical or mental infirmity; or

(c) is a serving member of the Armed Forces; or

(d) is the father of the person who is serving in the Armed Forces upto the extent of inheritable share of

.

such a member of the Armed Forces on the date of

his joining the Armed Forces, to be declared by his father in the prescribed manner.

(9) In the case of landowners mentioned in clauses (a) to

(d) of sub-section (8), the provisions of sub-sections (1) to (6) shall not apply,-

(a) in case of a minor during his minority and in case of other persons mentioned in clauses (a) and (b) of sub-section (8) during their life time;

(b) in case of persons mentioned in clauses (c) and (d) of

sub-section (8), during the period of their service in the Armed Forces subject to resumption of land by such persons to the extent mentioned in first proviso

to clauses (d) and (dd) of sub-section (1) of section

"Provided that nothing contained in this section shall apply to such land which either owned by or is vested in

the Government under any law, whether before or after the commencement of this Act, and is leased out to any

person."

4(i)(c). Proprietary rights of tenancy land where its landowner

is a serving member of Armed Forces, cannot be conferred over

non-occupancy tenants. Such landowner has right to resume the

- 14 -

tenancy land in accordance with Section 104(1), (8) & (9) and

Section 34 of the Act. The extent to which he can resume the land is

indicated in Section 104(9) read with Section 34 of the Act. Section

.

34(dd) of the Act provides that where tenancy land comprises share

of a landowner-member of the Armed Forces covered by Section

104(8), then such a landowner will be entitled to eject a tenant from

such land upto a maximum of 5 acres. Sub-section (1) of Section 34

reads as under:-

"34. Grounds of ejectment of tenants.-(1) A tenant other than occupancy tenant shall not be liable to ejectment

from his tenancy except on anyone or more of the

following grounds, namely:-

(a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes

for which he holds it;

(b) that he, where rent is payable in kind, has failed

without sufficient cause to cultivate or arrange for cultivation of the land comprised in his tenancy in the

manner or to the extent customary in the locality in which the land is situate;

(c) that he sublets the holding or part thereof for profit without the consent of the land-owner: Provided that a member of the Armed Forces, an unmarried woman, or if married, divorced or separated from husband of a widow, a minor, a person suffering from physical or mental disability because of which he

- 15 -

cannot cultivate the land himself, a person prosecuting studies in a recognized institution and a person under detention or imprisonment shall not be liable to ejectment because he sublets the holding or a part thereof without

.

the consent of the land-owner;

(d) that he holds his tenancy, from a person who created such tenancy within a period of six months before he

became a member of the Armed Forces or while he was serving in the Armed Forces and wants to cultivate it himself on his ceasing to be member of

the Armed Forces;

(dd) that he holds his tenancy on the land comprising the share of a member of the Armed Forces covered by

clause (d) of sub-section (8) of section 104 and who

wants to cultivate it himself on his ceasing to be a member of the Armed Forces:

Provided that such person or member of Armed

Forces referred to in clauses (d) and (dd) above, as the case may be, shall be entitled to eject a tenant from such

land upto a maximum of five acres, in the prescribed manner:

Provided further that a tenant so ejected shall be restored to possession of the land if the landowner after

ejecting him does not within one year cultivate it personally:

Provided also that if a tenant holding land from persons mentioned in clauses (d) and (dd) of this sub- section is also a member of the Armed Forces, the provision of first proviso shall not apply and the tenancy

- 16 -

shall remain and the ejectment from tenancy shall only be on the grounds given in clauses (a) to (c) of this sub- section.

(e) that the tenant as failed to pay rent within a period of

.

six months after it falls due:

Provided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay

the arrears of rent within a further period of six months from the date of the decree, or order directing his ejectment, and he had failed to pay such arrears during

that period....................."

4(ii). Section 104(3) of the Act states that non-occupancy

tenant shall acquire proprietary rights in respect of tenancy land

except that which can be resumed by the landowner. Vestment of

proprietary rights in the non-occupancy tenants is automatic except

in case of landowners falling in the protected categories. In such

cases, the vestment of land in tenants is deferred till the landowner

continues to remain protected in terms of Section 104 of the Act. In

other words, unless the landowner is entitled to resume the land, the

vestment of proprietary rights in the non-occupancy tenant is

automatic. Landowner serving in the Armed Forces falls in the

protected category. He is allowed to resume tenancy land in

accordance with Section 104(8) (9) and Section 34 of the Act. As

per Section 34, a non-occupancy tenant can be ejected from

- 17 -

tenancy land on the grounds indicated therein. The grounds for

ejectment given in Section 34(d) & (dd) pertain to those tenancy

lands, whose landowner is member of Armed Forces. In terms of

.

Section 34 of the Act alongwith its provisos, such landowner, on

ceasing to be a member of Armed Forces, is entitled to eject a

tenant from his land upto a maximum of 5 acres.

In the instant case, the land under the tenancy of the

appellants is exclusively owned by respondent No.3. This has been

held to be so in the judgment dated 20.10.1986 passed by the

Assistant Collector 1st Grade, Nurpur, District Kangra, decreeing the

suit filed by respondent No.3 under Section 58 of the Act. He was

held entitled to the arrears of rent with respect to the land in

question from the appellants. In this suit, besides the brothers of

respondent No.3, the appellants were also parties therein. All have

accepted the judgment. The same has attained finality. There is no

escape from the conclusion that respondent No.3 is the exclusive

owner of the land in question.

Being in exclusive ownership of the land and being a

member of the Armed Forces, the provisions of Section 104(1), (8) &

(9) and 34(dd) of the Act come into play. The appellants-tenants

could not be conferred proprietary rights over the land owned by a

member of Armed Forces. Respondent No.3-landowner had the

- 18 -

right to resume land upto 5 acres from the appellants. He exercised

his right to resume the tenancy land in 1985 after his retirement from

the Army. His personal holding or land in his cultivation was not to

.

be calculated in order to determine the extent of land to be allowed

to be resumed by him. Respondent No.3 was entitled in law to

resume maximum of 5 acres of land from the appellants-tenants

irrespective of landholding in his own cultivation. The order passed

by the Financial Commissioner on 22.01.2013 is in accordance with

law and was rightly not interfered with by the learned Single Judge.

5. No other point was urged.

Therefore, for all the aforesaid reasons, we find no error

in the judgment passed by the learned Single Judge. Consequently,

the instant appeal lacks merit and is accordingly dismissed. Pending

miscellaneous application is also disposed off.

                                                  ( Ravi Malimath )
                                                Acting Chief Justice





                                               ( Jyotsna Rewal Dua )
    September 24, 2021                                 Judge
         Mukesh