Susheel Kumar vs State Of H.P
2024 Latest Caselaw 12151 HP

Himachal Pradesh High Court

Susheel Kumar vs State Of H.P on 23 August, 2024

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

( 2024:HHC:7272

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Decided on: 23.08.2024

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    Susheel Kumar                                                     ....Petitioner

                                           Versus
    State of H.P.                                                    ......Respondent

............................................................................................. Coram Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?1

For the petitioner r : Mr. Y.P. Sood, Advocate.

For the respondent : Ms. Leena Guleria, Deputy Advocate General.

Jyotsna Rewal Dua, J

Notice. Ms. Leena Guleria, learned Deputy Advocate

General, accepts notice on behalf of the respondent.

2. With the consent of learned counsel for the parties, the

matter is heard at this stage.

3. Background Facts

3(i) Petitioner purchased land measuring 0-6 biswas out of

khasra no 1206/648, total measuring 0-10 biswas, situated at Mohal

Chauri, Tehsil Junga, District Shimla vide Sale Deed dated 59/2004

registered in the office of Sub-Registrar, Junga, District Shimla on

16.06.2004.

Whether reporters of the local papers may be allowed to see the judgment? yes

( 2024:HHC:7272

3(ii) Respondent issued a show cause notice to the petitioner

on 20.07.2010 under Section 118 of the H.P. Tenancy and Land

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Reforms Act 1972 (in short the Act) with the allegations that:-

(i) Petitioner was not an agriculturist as defined in Section 118 of the

Act at the time of purchase of the aforesaid land. (ii) Petitioner had

purchased the land without the permission of the State Government.

3(iii) The petitioner replied to the show cause notice claiming

therein that; He was an agriculturist at the time of purchase of land. He

was competent to purchase the land in the State of Himachal Pradesh

as his father late Sh. Jamna Prasad was also an agriculturist in the

State of Himachal Pradesh; That his late father Sh. Jamna Prasad had

owned agricultural land measuring 7 bighas situated at Mauza Kot,

Tehsil Junga, District Shimla. Petitioner being son of agriculturist was

also an agriculturist for the purpose of Section 118 of the Act. Thus,

according to the petitioner, there had been no violation of provisions of

Section 118 of the Act. Alongwith the reply, the petitioner placed on

record certain documents in support of his contentions.

3(iv) Respondent-District Collector, Shimla vide order dated

01.12.2010 passed in Case No. 30/2010 held that the petitioner had

purchased the land in-violation of provisions of Section 118 of the Act.

In coming to this conclusion, the respondent observed that 7 bighas of

land purchased by petitioner's father was also hit by Section 118 of the

Act and that proceedings in that regard were still pending adjudication.

( 2024:HHC:7272

Therefore, it was held that petitioner could not derive any advantage

out of his assertion about his father being an agriculturist. The order

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passed by the District Collector, Shimla, was affirmed in appeal by the

Divisional Commissioner, Shimla on 18.11.2019. Feeling aggrieved

against the orders passed by the District Collector on 01.12.2010 and

by the Divisional Commissioner on 18.11.2019, petitioner preferred a

revision petition before the Financial Commissioner (Appeals) Himachal

Pradesh. The revenue petition was also dismissed on 04.11.2023,

giving occasion to the petitioner to institute the present writ petition.

4. Submissions.

4(i) Learned counsel for the petitioner submitted that the

learned authorities below have committed error in law as also on facts,

inasmuch it has not been appreciated that proceedings under Section

118 of the Act initiated against the father of the petitioner have since

been closed. Reference in this regard was made to an order passed on

18.11.2019 by the Divisional Commissioner, Shimla in Appeal No.

249/2011 preferred by late Sh. Jamna Prasad, father of the petitioner.

The operative part of this order, which is stated to have attained finality,

reads as under:-

"14. From the discussions above it is evident that the order dated 24- 04-2006 passed by District Collector Shimla was legally correct. Further the conclusion by District Collector Shimla dated 20-09-2011 is also legally valid to the extent that-

"the land cannot be ordered to be vested in the State Government."

( 2024:HHC:7272

However further conclusion that-

"Since there is violation of the provisions of the Act the transaction is liable to be declared invalid"

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is not legally sustainable as the District Collector did not have power under Section 118 to declare a registered sale deed registered on 11- 03-1988 invalid. As such the order dated 20-09-2011 in case No.

01/2006 titled as State of H.P. Vs Jamna Dass cannot sustain itself legally. Thus the instant appeal is accepted and impugned order dated 20-09-2011 passed in case No. 01/2006 by District Collector Shimla is set aside. The miscellaneous application if any shall stand

disposed off accordingly.

A copy of this order be placed on case file of Ld. Lower Court below and the case file be returned back to Lower Court.

r The case file of this Court be consigned to record room of this

court after due completion."

Learned counsel for the petitioner submitted that in terms

of the aforesaid order, proceedings initiated against petitioner's father

under Section 118 of the Act, were dropped. The aforesaid land is now

in the ownership and possession of legal heirs of late Sh. Jamna

Prasad including the petitioner. Learned counsel further submitted that

this aspect of the matter has been overlooked by the learned Financial

Commissioner (Appeals), Himachal Pradesh, while deciding the

revision petition preferred by the petitioner.

4(ii) Learned Deputy Advocate General though defended the

impugned order, however, on point of facts, it was conceded that the

effect of orders passed by the Revenue Authorities in proceedings

under Section 118 of the Act initiated against petitioner's late father

( 2024:HHC:7272

had not been considered in the impugned order passed by the learned

Financial Commissioner.

.

5. Having heard learned counsel on both sides and on

considering the case file, I am of the considered view that the matter is

required to be remanded to the learned Financial Commissioner

(Appeals), Himachal Pradesh for fresh decision. This is for the reason

that the petitioner had taken a specific defence in his reply to the show

cause notice issued to him under Section 118 of the Act. The defence

being that he was to be treated as agriculturist, since his father was

also an agriculturist, having purchased 7 bighas of agricultural land in

the State of Himachal Pradesh. Admittedly, this contention of the

petitioner has not been dealt with in the impugned order. The effect of

the orders passed by the revenue authorities in the proceedings under

Section 118 of the Act initiated against petitioner's father has not been

discussed in the impugned order passed by the Financial

Commissioner (Appeals).

For the aforesaid reasons, this writ petition is partly

allowed. The impugned order dated 04.11.2023 passed by learned

Financial Commissioner (Appeals), Himachal Pradesh is set aside.

Learned Financial Commissioner (Appeals) is directed to decide the

matter afresh, in accordance with law, after hearing the parties. Parties

through their learned counsel are directed to appear before the

Financial Commissioner (Appeals) on 17.09.2024.

( 2024:HHC:7272

It is clarified that observations made above shall remain

confined to the adjudication of this writ petition & shall not be

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construed as an opinion on merits of the matter.

The instant petition is disposed of, in above terms, so also

the pending application(s), if any.

Jyotsna Rewal Dua

Judge August 23, 2024 (Rohit)