The Himachal Pradesh Restitution of Mortgaged Lands Rules, 1977

Published vide Notification H.P. Government Gazettee dated 11-3-78 vide Revenue Department Notification No. Revenue 2-A(3)-/177, dated 3-12-77.

HP032

Government of Himachal Pradesh

Revenue Department

Short title and commencement.- (1) These rules may be called the Himachal Pradesh Restitution of Mortgaged Lands Rules, 1977.

(2) They shall come into force at once.

Definition.- (1) In these rules, unless there is anything repugnant in context,-

(i) "Act" means the Himachal Pradesh Restitution of Mortgaged Lands Act, 1976. (Act No 20 of 1976).

(ii) "compensation" means the amount assessed by the Collector under section 7 of the Act as payable to a mortgagee prior to the restitution of any mortgaged land to the mortgagor, and

(iii) "section" means section of the Act;

(2) All other words and expressions used, but not defined, in these rules, shall have the meanings respectively assigned to them in the Act.

Form, stamp duty and manner of presentation of the petition under section 4.- (1) The petition under section on 4 shall be in form 'A' attached to these rules, signed and verified as laid down in Order VI, rules 14 and 15, respectively of the Code of Civil Procedure.(5 of 1908).

(2) The petition shall bear the court-fee prescribed by Article I(b) of Schedule II to the Court-Fees Act 1870 as amended in its application to Himachal Pradesh and shall be accompanied by an attested copy of the latest jamabandi entry relating to the land, and a copy of the original mutation of the mortgage. There shall also be filed along with the petition as many copies thereof as is the number of persons mentioned in columns (2) and (3) of the petition.

Provided that if the petitioner is unable to supply copies of the latest jamabandi and the original mutation of the mortgage he shall pay a fee of Rs. 2 and the Collector shall get those copies from his office.

(3) A petition shall be presented to the Collector by the petitioner personally or through a duly authorised agent in the case of two or more petitioners, it may be presented by any one of them.

Procedure to be followed when there are more than one mortgagers.- When there are more mortgagers than one and all of them do not join in making a petition, it may be mode by any one or more of them the names of the others being set out in column (2) of the petition, and the other mortgagers may subsequently be (sic) petitioners such terms as may be decided by the Officer hearing the petition.
Receipt registration of the petition and fixing the date of hearing.- On receipt of a petition, and after getting the necessary corrections made if any, the Collector shall order it to be entered in a register and shall, fix a date for hearing and cause notice thereof together with a copy of the petition, to be served on the persons mentioned in columns (2) and (3) of the petition.
Procedure for dealing with the petition.- Except as otherwise provided by these rules on Officer dealing with a petition shall be guided by the procedure prescribed for revenue officers under the Himachal Pradesh Tenancy and Land Reforms Act, 1972 in so far as it may be applicable. (Act No. 8 of 1974).
Written statement of defence.- The persons mentioned in columns (2) and (3) of the petition shall present a written statement of their defence, which shall also be signed and verified as laid down in Order VI, rules 14 and 15, respectively, of the Code of Civil Procedure. (5 of 1908).
Appearance by parties to the proceedings.- (1) Parties to proceedings under the Act may appear in person or through a legal practitioner holding a power of attorney or other duly authorised agent.

(2) If any one of the petitioners or respondents is a minor or of unsound mind, the provisions of Order XXXII, Code of Civil Procedure (5 of 1908), shall, so far as these may be applicable, apply to proceedings under the Act.

Hearings.- The Collector shall then hear the evidence produced by the parties and make such further enquiries as he may deem fit.
Assessment of benefits received by mortgagee while in possession under section 7.- In assessing the benefits received by a mortgagee while in possession, the Collector shall, in the absence of any satisfactory evidence to the contrary, presume that they were equal to the net assets of the land as defined in clause (12) of section 4 of the Himachal Pradesh Land Revenue Act, 1953. To avoid difficulty, where cash or rents are rare and to secure uniformity, the estimate of net assets based on rents in kind prescribed by rule 1 of the Land Revenue Assessment Rules, 1929, as in force in Himachal Pradesh shall be used. (Act No. 6 of 1954).
Amount of compensation.- The compensation under sub-section (2) of section 7 shall be the balance left after deduction of the sum assessed under the provisions of the foregoing rules from twice the amount of the principal sum originally advanced under the mortgage:

Provided that the compensation shall in no case exceed the scale laid down in the said section.

Time limit for depositing the amount of compensation.- After determining the amount of compensation under section 7, the Collector shall fix a date within which the petitioner shall deposit the amount in the Government treasury for disbursement to the mortgagee.
Payment of the amount of compensation to the mortgagee.- When the mortgagee has deposited with the Collector the mortgage deed and other documents, if any, evidencing the mortgage or title to the land, or satisfied him that the documents though at one time existing had been lost, he shall be entitled to receive the amount of compensation in accordance with the rules of the treasury, and the documents of title shall be made over to the petitioner.
Procedure to be followed in restitution of the possession to the mortgager.- (1) On application by a petitioner in whose favour an order has been made under section (8) of the Act, the Collector may issue a warrant directing the petitioner to be put into possession of the land.

(2) If any co-mortgager fails to apply under rule 4 to be made a petitioner, or being a petitioner fails to pay his share of the compensation assessed, possession shall be given to the mortgager by whom such compensation has been paid in full; and such co-mortgager shall continue to be shown in the revenue records as mortgager until such time as he has paid his share, to the person who has made payment being shown as mortgagee of his share.

(3) The warrant shall after execution and with necessary endorsement be returned to the Collector.

(4) Possession shall normally be delivered between the first day of May and the fifteenth day of June, unless the land is lying vacant, but the petitioner may, subject to the payment by him of compensation for standing crops, as may be determined by the Collector, be allowed possession at any other time.

Jurisdiction as to the Collector, when any mortgage transaction affects more than one Distt. and the manner to be adopted in dealing with such transactions.- (1) When any mortgage transaction affects land situated in more districts than one a petition, may be made to the Collector of the district where major portion of land is.

(2) In a petition covered by sub-rule (1) the Collector receiving the application shall transmit a copy of the same to the Collector of each district where any part of the rest of the land is situated.

(3) The Collector hearing the case may have the statement as contemplated under rule 10, so far as these relate to the areas situated in other districts, prepared through the Collectors thereof.

(4) Every final order passed under sections 6 to 9 of the Act by the Collector enquiring into the petition shall, so far as it relates to the land lying in the other district, be similarly communicated to the Collectors thereof.

Procedure for dealing further petition.- If after the receipt by any Collector of an intimation under sub-rule (2) of rule 15 above, any fresh petition is made to him in respect of the mortgage covered by the first petition; he shall forward the same to the Collector of the district where the first petition is pending and advise the petitioner to seek his remedy there.
Issue of warrant of possession and its execution.- In cases covered by rule 15 the Collector issuing warrant of possession under rule 14 shall issue a separate warrant for the area lying in each other district and transmit the same for execution to the Collector thereof, who shall execute the warrant as if it had been issued by himself.
Dismissal of a petition not to bar fresh petition.- The dismissal of any petition for default shall not bar a fresh petition on similar facts, nor shall the failure of a petitioner to pay the amount of compensation have such a result.
Procedure to be followed in case of dispute among claimants of compensation.- If there is any dispute between persons claiming to be entitled to compensation, the Collector may either decide the dispute himself, or order the sum deposited by the petitioner, not to be paid to any one till the contesting persons have had their rights decided by a competent court of law.
Filing of appeals.- (1) An appeal against an order by a Collector or a Commissioner under the Act shall be preferred by submitting a memorandum, accompanied by an attested copy of the order appealed against.

(2) Each such memorandum shall bear the court-fee prescribed by Article II of Schedule II of the Court-fee Act 1870, as amended in its application to Himachal Pradesh.

Procedure for hearing appeals.- Appeals shall be heard, after proper notice to the parties, on a date fixed for the purpose, and the procedure in force for the redemption, hearing and disposal of appeals by Revenue Officers under the Himachal Pradesh Tenancy and Land Reforms Act, 1972, shall apply so far as it is applicable. (Act No. 8 of 1974).
Repeal and Savings.- (1) The Himachal Pradesh Restitution of Mortgaged Lands Rules, 1960, are hereby repealed.

(2) Notwithstanding the repeal of the rules under sub-rule (1), anything done, or any action taken in the exercise of the powers conferred by or under the said rules shall be deemed to have been, done or taken in exercise of the powers conferred by or under these rules, as if these rules were in force on the day on which such thing was done or action was taken.

Form 'A'

(See rule 3)

Application Under Section 4 of the Restitution of Mortgaged Lands Act, 1976 (Act No. 20, 1976)

In the District of ......................................

Tehsil .........................

Year .........................

Name, parentage and residence of the applicant	Name, parentage and residence of other mortgagers not joining the application	(a) Name, parentage and residence of mortgagee and (b) if he be not in possession, of the persons in possession of the land	The area and the date of the description of the land to be restored	the date of the mortgage	The name, parentage and residence of the original mortgager and mortgagee
1	2	3	4	5	6

The amount for which the mortgage was effected	Payment, if, any made towards the mortgage debt	Period for which the mortgagee has been in possession	How does the applicant claim the right of restitution	In case the respondent was not the original mortgagee the manner in which he come to possess the mortgagee rights	Remarks
7	8	9	10	11	12

Signature of the applicant..............................

Verification

Verified that the facts set out in columns........................are true to my knowledge, while facts set out in column Nos.................... are true to my belief and information.

Verified at ..............................................on ..................................................

Signature of the person making the verification.

Notes. - (1) Attested copies of the latest jamabandi entry relating to the land and the mutation of the mortgage in question be attached to the petition.

(2) The facts in columns (5) to (12) should be given as are known to the petitioner, and any mistake therein will not affect the petition.

(3) If the petitioner is unable to secure copies of the latest jamabandi entry and the mortgage mutation or to give the facts required in column Nos. (5) to (12) he should pay a fee of Rs. 2 and the Collector shall get the necessary documents and facts from his office.