IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.6806 of 2010 Alongwith CWP No.899 of 2011 Judgment reserved on: 17.10.2011. Date of decision: 19.10.2011. Babu Ram (in both cases) …Petitioner Versus State of H.P. and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No For the Petitioner : Ms.Salochna Kaundal, Advocate. For the Respondents : Mr.Vivek Thakur, Addl.A.G. for Respondents. Deepak Gupta, J. 1. These two petitions are being disposed of by one judgment since common questions of fact and law are involved in these two cases. 2. By means for first petition being CWP No.6806 of 2010, the petitioner, who is the son of late Sh.Kedaru Ram, has prayed for quashing of notice dated 27.9.2010 Annexure P-5 and letter dated 6.10.2010 Annexure P-7, whereby the petitioner has been directed to handover the possession of the land comprised in khasra Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Nos.113, 114, 115, 116, 117, 118, 124, 125 and 202 measuring 774.10 sq.mtrs. in revenue village Kasumpti Koti. 3. By means of CWP No.899 of 2010, the petitioner Babu Ram has prayed for quashing of the order dated 21.12.2006 Annexure P-10, passed by the Financial Commissioner (Appeals), Shimla whereby she allowed the Revision Petition filed by the State and set-aside the order of the Assistant Collector, Ist Grade, Shimla dated 10.11.1997 whereby he showed Kedar Nath to be a tenant on the said land. 4. Briefly stated, the facts of the case are that there is a property known as Majithia House which admittedly was an estate which fell both in Station Ward Chhota Shimla and part of the property is in Kasumpti Koti. The State initiated proceedings to purchase/acquire the land some time in the year 1976. Negotiations were held with the owner and notification was issued under Section 4 of the Land Acquisition Act on 3.4.1976 for acquiring the entire estate known as Majithia 3 House and the land sought to be acquired as per this notification is as follows: “District Shimla Tehsil Shimla Name of Locality Khasra No. Area (Approximate) Sq.Yards Sq.Feets. Station Ward 235/1 246 4 Chhota Simla 235/2 21 7 235/3 5 5 235 Baquimanda 1509 8 236/1 710 4 236/2 81 7 236/3 55 3 236/4 8 8 236/5 513 5 236 Baquimanda 9105 4 237 580 2 445/259 321 0 Total: 13159 3 Bighas Biswas Kasumpti Koti 24 0 1 25 5 17 33 0 1 34 0 15 35 0 3 253/40 2 0 Total: 8 17” 5. We are mainly concerned with the land forming part of Kasumpti Koti. This land in the revenue record for the year 1974-75 was shown to be owned by the State but in the possession of Surinder Singh, Surjit Singh sons of sunder Singh as Patedars. A notice was sent to various persons shown to be land owners. Some of the 4 land owners filed affidavits and finally a notification under Sections 6&7 with regard to the aforesaid land was issued on 10th May, 1976. It would be pertinent to mention that Kedar Nath, Predecessor –in-interest of the petitioner, filed objections to the acquisition in which he claimed that he was in possession of land as a tenant comprised in khasra No.253/40/1 and he be given compensation amounting to Rs.60,000/-. The owners disputed the fact that Kedar Nath was in possession of the aforesaid property as tenant and thereafter acquisition proceedings took place and the amount of compensation was settled by mutual negotiations at Rs.8,15,000/-. The balance amount was paid to the owners who also filed affidavits that in case the claim of Kedar Nath was upheld in any proceedings then they would compensate the State by paying the amount which was payable to Kedar Nath for the property, if any, held by him. 6. It is not disputed that Kedar Nath did not file any petition under Section 30 of the Land Acquisition 5 Act for apportionment of the compensation even though he was aware about the proceedings as is apparent from his objections filed before the Collector Land Acquisition on 21.5.1976. 7. From the aforesaid facts, it is apparent that the State acquired the entire Majithia estate as detailed in para No.4 above. As already noted, Kedar Nath did not file any application for apportionment of the amount though he was aware of the acquisition proceedings. Thus, it is apparent that the State became owner of this property after the award was announced and the amount paid to the owners. Though entries regarding the land forming part of Station Ward Chhota Shimla were changed and the State shown to be owner in possession, it appears that no such change was made in the revenue record relating to Mohal Kasumpti. Thereafter, Kedar Nath @ Kedaru filed an application on 19.5.1994 i.e. 18 years after the acquisition had taken place claiming to be in possession of land comprised in khasra Nos.113, 114, 115, 116, 117, 118, 124, 125 and 202 measuring 774.10 sq.mtrs in Mohal 6 Kasumpti. He, in this application, did not care to mention that he had filed objections in the acquisition proceedings and taken no action thereafter. The Assistant Collector, Ist Grade, decided the application in favour of the applicant Kedar Nath and ordered that he be shown in possession of the aforesaid land. Most importantly, he was not only shown to be in possession but also shown to be gair-marusi through Surinder Singh etc. patedaran. The order by Assistant Collector was passed without any notice to the State or the original patedars i.e. Surinder Singh etc. 8. I have gone through the file of the Assistant Collector and find that in the said application Surinder Singh, Surjit Singh sons of Sunder Singh were shown to be respondents. Kedar Nath knew that these persons were no longer interested in the said property since they had been paid the price of the property by the State. The application was filed by Kedar Nath on 19.6.1994 and on the same date the Assistant Collector Ist Grade ordered that the Kanungo 7 should visit the spot and verify the possession on the spot. Thereafter, Kedar Nath died and his legal heirs were brought on record and notice was issued to Surinder Singh etc. The receipts filed by Kedar Nath in support of his application clearly showed that the rent was being paid only in respect of stables and servant quarters and not in respect of any land. These receipts, by no means, show that Kedar Nath was cultivating any agricultural land. In fact Majethia house was an estate and it appears that Kedar Nath was inducted as a tenant in the stables and he used to pay rent for the stables and servant quarters and some time he also paid some money for the wood and grass etc. used by him but this by no stretch would mean that he was a tenant. 9. Even, more importantly, in the absence of the State, no orders could have been passed mutating the land in favour of the heirs of Kedar Nath. Another important aspect is that though Surinder Singh and Surjit Singh were still shown to be owners their address was given as Majithia house though Kedar Nath should have been 8 aware that they were no longer residing there. Thereafter, report was received by the Process Server that for the last two decades they were not residing at this residence but no efforts were made to get them served and the Assistant Collector passed the order without hearing the State or the original owners. 10. The State only came to know about these orders much later and a Revision Petition was filed by the State before the Financial Commissioner in the year 2006. This Revision Petition was allowed by the Financial Commissioner on 21.12.2006 and the operative portion of the order reads as follows: “In view of the above discussion, the Assistant Collector Ist Grade, Shimla has clearly over stepped his jurisdiction and has passed an illegal order which is unsustainable in the eyes of law. The predecessor in interest of the present respondents No.3 and 4, Shri Kedar Nath and thereafter Smt.Kamla Devi evidently took undue advantage of the fact that the entries of the revenue record had not been corrected in pursuance to the acquisition proceedings and managed to fraudulently get the entries of tenancy created in their favour by the Assistant Collector 1st Grade, Shimla. This order dated 10.11.97 passed by the Assistant Collector 1st Grade is 9 illegal and unsustainable for the reasons discussed above and is therefore set-aside. The necessary updating in favour of the State Government may be carried out in the revenue records in pursuance to the acquisition proceedings with regard to the land in dispute. In view of the facts narrated, it is also evident that the then filed kanungo concerned who visited the spot on 30.11.94 recommending incorporation of Sh.Kedar Nath as a tenant as well as the officer who passed the order dated 10.11.97 are both guilty of conniving with Sh.Kedar Nath and thereafter Smt.Kamla Devi to help the latter to grab valuable Government land fraudulently. It is recommended to the Financial Commissioner (Revenue), H.P. that strict penal action should be taken against them for their acts of omission and commission in the performance of their duties. A copy of this order may be communicated to the parties. A copy may also be sent to the Financial Commissioner (Revenue), H.P. Government for necessary action against the erring officials as recommended above. The record of the courts below may be returned alongwith a copy of this order for compliance. The file may be consigned to the record room after due completion.” 11. In my view, the findings arrived at by the Financial Commissioner are absolutely correct. Kedar Nath, with ulterior motive fraudulently filed the application for correction of revenue entries 18 years after the acquisition had taken 10 place knowing fully well that the Majithia estate stood acquired. In his objections filed at the time of acquisition proceedings he had only stated that he was in possession of khasra No.253/40/1. Now he claims to be in possession of a huge amount of land. In settlement proceedings khasra Nos.24, 25, 33, 34, 35, 253/40 which were acquired by the State having given the following khasra numbers i.e. khasra Nos. 108, 113, 114, 115, 116, 117, 118, 125, 202, 203, 204, 205, 206, 207, 208, 209, 210 and 211. It is obvious that these new khasra numbers comprise the land which was acquired by the State. 12. Now the petitioners claim that they are owners in possession of the said land. This is absolutely a false case. It is more than apparent, as rightly held by the Financial Commissioner that Kedar Nath and thereafter his legal heirs in connivance with the revenue staff got the entry changed at the back of the original owners and at the back of the State. Even as per the petitioners the State was the original owner of these khasra 11 numbers and Surinder and Surjit Singh were patedars. No change in the revenue entries could have been made without issuing notice to the State Government. Even otherwise I am of the considered view that the receipts produced by Kedar Nath in support of his claim only show that he was a tenant in the building i.e. stables or servant quarters and was not a tenant on any other land. His possession, if any, on the land cannot be said to be that of a tenant by any stretch of imagination. 13. In view of the above discussion, I find no merit in the petitions which are accordingly dismissed. No order as to costs. October 19, 2011 ( Deepak Gupta ), PV Judge