RAM SARAN Vs. STATE OF H.P.

JUDGEMENT

(1.) BY way of this petition under Article 227 of the Constitution, petitioner Ram Saran has challenged the orders dated 28.8.1991 (Annexure-PC) and dated 15.3.1994 (Annexure-PD) passed by Sub Divisional Officer (Rural), Shimla and affirmed by Commissioner, Shimla Division whereby the petitioner was ejected from the Government land.

(2.) GRAM Panchayat Dudhalti, Pargana Kaimili, Tehsil and District Shimla passed resolution No. 13 (Annexure P-A) in its meeting held on 8.10.1970. Through that resolution, a piece of Shamlat land comprised of Khasra No. 193 measuring 14 bighas 19 biswas was put to public auction on Chakauta. The petitioner was the highest bidder. The land was leased out to the petitioner for a period of 5 years at the agreed upon rate of Rs. 1.10 per bigha per year i.e. total Rs. 16.50 per annum for cultivation. Petitioner pleaded that he was put in possession of the land pursuant to the lease deed and made it cultivable and also constructed a house for his residence. He pleaded that the petitioner had been continuing in peaceful possession of the land and the house since 1970, however, in the year 1991, Tehsildar (Rural), Shimla initiated proceedings against him under Section 163 of the Himachal Pradesh Land Revenue Act, 1953. The petitioner contested the proceedings on the ground that since the land was granted on lease to him by the Panchayat, the proceedings under Section 163 could not be initiated as his status was not that of encroacher. Tehsildar (Rural), Shimla referred the matter to the Sub Divisional Officer (Rural), Shimla (respondent No. 3) under Section 4 of the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (Act No. 18 of 1974) for decision. The petitioner filed his reply inter alia, pleading that at the time when the land was given on lease to him, it was Banjar and after breaking the same he made it cultivable and started sowing his crops. He also constructed a house on the above land and has been residing in it. No objection was raised either by the Panchayat or anybody else at the time of making the land fit for cultivation and construction of the house. He pleaded that the said lease be treated to have been granted by the State and necessary orders be made in that behalf. Respondent No. 3 passed an order that the petitioner had no legal right to cultivate the land after the expiry of 5 years and for this reason the cultivation made by him after 1975 was declared as illegal and he was directed to surrender the possession of Khasra No. 193 measuring 14 bighas 19 biswas immediately.

(3.) HEARD Shri G.C. Gupta, learned counsel for the petitioner and Shri M.L. Chauhan, learned Assistant Advocate General for the respondents. There is no dispute that the land was granted to the petitioner by Gram Panchayat Dudhalti, Pargana Kaimili, Tehsil and District Shimla by lease deed for a period of 5 years commencing from 8.10.1970 and ending on 8.10.1975 at the agreed upon rate of Rs. 16.50 per annum. There is also no dispute that prior to the enforcement of the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (Act No. 18 of 1974) all Shamlat land vested in the Panchayats who in turn could lease out such land. The Act No. 18 of 1974 received the assent of the Governor on the 9th August, 1974. Under Section 3 of Act No. 18 of 1974 all rights, title and interest vested in a Panchayat shall stand extinguished and all such right, title and interest shall vest in the State Government free from all encumbrances. The respondents initiated proceedings against the petitioner under Section 4 of the Act. Section 4 deals with the treatment of leases made by the Panchayats and empowers the Collector to call for from Panchayats in his District, the record of leases, contracts or agreements entered into by the Panchayat in respect of any land vested in the Panchayats and examine such records for satisfying for himself as to the legality or propriety of such leases, contracts or agreements. On examination of the record and after making such inquiry as he deems fit, the Collector if feels satisfied that such leases, contracts or agreements are in accordance with the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 and rules, he shall pass orders declaring such leases, contracts or agreements having been made on behalf of the State Government under Sub-section 2. If 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 right-holders, 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. However, under the proviso, no order under Sub-sections 2 and 3 of Section 4 shall be passed by the Collector without affording an opportunity of being heard to the parties to the lease, contract or agreement.