IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 543 of 2000 Decided on : 7th November, 2009 State of HP …Appellant. Versus Daya Ram and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Ajay Sharma, Advocate. Surjit Singh, Judge (Oral) This regular second appeal by the State is directed against the judgments and decrees dated 30.9.1993 of Senior Sub Judge, Una (trial Court) and dated 31.8.1999 of the first appellate Court (District Judge), whereby the trial Court (Senior Sub Judge) has decreed the suit, instituted by the respondents against the State, for declaration with consequential relief of permanent prohibitory injunction and the appeal against the judgment and decree of the trial Court, has been dismissed by the first appellate Court. 2. Respondents Daya Ram and Ramesh Kumar, hereinafter called plaintiffs, filed a suit for declaration that they were owners in possession of land measuring 24 Kanals, bearing Khasra No.2951, situate in village Kotla Kalan, Tehsil and District Una, and that the order passed by Assistant Whether reporters of the local papers may be allowed to see the judgment? …2… Collector 2nd Grade, on 23.9.1987, reviewing mutation No.2747, attested on 23.12.1986, whereby ownership rights were conferred upon them, is wrong, illegal and not of any consequence upon their right of ownership, in respect of the said land. By way of further relief, they prayed for issuing an injunction restraining the appellant-defendant (State of Himachal Pradesh) from interfering in their possession, on the strength of review order dated 23.9.1987. 3. Cause of action, as pleaded by the plaintiffs, was that earlier they were tenants, under the Panchayat on the suit land and that when the ownership of the land vested in the State, under the provisions of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, they became the tenants, under the State and thereafter by virtue of Section 104 of Himachal Pradesh Tenancy and Land Reforms Act, 1972, they became owners and a mutation, conferring ownership rights upon them, had also been attested in their favour on 23.12.1986 and number of such mutation was 2747. It was alleged that later on the Assistant Collector 2nd Grade, Una, passed a review order dated 23.9.1987, cancelling the aforesaid mutation and re-entering the State as owner of the suit land and on the strength of that order and incidental entry, the officials of the State started interfering in their possession. It was further alleged that the Assistant Collector 2nd Grade did not have any jurisdiction to review the order of conferment of proprietary rights, under …3… the H.P. Tenancy and Land Reforms Act, 1972, and, hence, the order was illegal without jurisdiction and nonest. 4. Appellant-State contested the suit. It pleaded that an amendment had been carried out in H.P. Tenancy and Land Reforms Act, 1972, vide Act No.6 of 1988, whereby tenants under the State were taken out of the purview of Section 104 of the Act and the amendment had been given retrospective effect, i.e., the date from which the principal H.P. Tenancy and Land Reforms Act, 1972, came into force, and, hence, the plaintiffs were not entitled to any relief and because of that amendment the order of review could not be said to be illegal or without jurisdiction. It was also pleaded that the suit land, which was earlier owned by the Panchayat, vested in the State of H.P, under the H.P. Village Common Lands Vesting and Utilization Act, free from all encumbrances, by virtue of Section 3 of the said Act, and the tenancy created in favour of the respondents-plaintiffs, by the Panchayat, automatically came to an end with the vestment of the land in the State. 5. Trial Court concluded that the plaintiffs were tenants initially under the Panchayat and then under the State and they had the right to remain in possession as tenants, until they were ejected by due process of law. A declaratory decree was passed accordingly. Defendant-appellant was restrained from interfering with the possession of the plaintiffs, until they were ejected by due process of law. …4… 6. Appeal was filed by the State in the Court of District Judge. Learned District Judge dismissed the appeal and upheld the judgment and decree of the trial Court. 7. This appeal was admitted on the following substantial questions of law:- 1. Whether decree of declaration and injunction can be passed in favour of the plaintiffs, in view of the amendment carried out to section 104 of the H.P. Tenancy and Land Reforms Act? 2. Whether the Civil court has jurisdiction to entertain and try the suit in view of the bar created under Section 10 of H.P. Village Common Lands Vesting and Utilization Act? 8. I have heard the learned Assistant Advocate General as also the learned counsel for the respondents and gone through the relevant provisions of the law as also the record. 9. It is not in dispute that initially the land was owned by the Panchayat. It appears that the land came to be owned by the Panchayat, on account of the operation of Punjab Village Common Lands (Regulation) Act, 1961, because the area, in which the suit land is situated, was earlier part of the erstwhile State of Punjab. After reorganization of the erstwhile State of Punjab, the area was merged with Himachal Pradesh. 10. In the year 1974, Himachal Pradesh Village Common Lands Vesting and Utilization Act (Act No.18 of 1974), was passed. Section 3 of the said Act, inter alia, …5… provided for vestment, in the State of H.P., of those lands, which had vested in the Panchayats, under Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961, free from all encumbrances. By virtue of this provision of Section 3 of H.P. Village Common Lands Vesting and Utilization Act, 1974, the suit land which was in the ownership of the Panchayat, presumably on account of vestment, under Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961, vested in the State of H.P. 11. At the time when the suit land vested in the State of Himachal Pradesh, respondents-plaintiffs were tenants under the Panchayat on payment of rent @ Rs.2/- per annum. After the vestment of the land in the State of Himachal Pradesh, respondents-plaintiffs continued to be recorded as tenants, in respect of the suit land, but under the State of Himachal Pradesh. In the year 1986, mutation Ext. P-10, was attested conferring proprietary rights upon the respondents- plaintiffs, under Section 104 of the H.P., Tenancy and Land Reforms Act. Mutation order was passed by the Assistant Collector 2nd Grade. The same Assistant Collector reviewed the mutation, vide order dated 23.9.1987, and cancelled the mutation, holding that tenants could not have been inducted on the Government land, under the law, and, therefore, their tenancy was illegal, and hence, proprietary rights could not have been conferred upon them, under Section 104 of the H.P. Tenancy and Land Reforms Act. …6… 12. It is true that by Act No.6 of 1988, a change has been brought about in Section 104 of H.P. Tenancy and Land Reforms Act, 1972, which was given retrospective effect, i.e. the date from which the principal Act came into force, by virtue of which the proprietary rights cannot be conferred upon the tenants, in respect of the Government land held by them as such. However, this change in Section 104, by virtue of amending Act No.6 of 1988, had been brought about only after the review order dated 23.9.1987 was passed and, therefore, this order cannot be upheld, by calling in aid the amendment Act No.6 of 1988. Therefore, the review order dated 23.9.1987, is illegal, without jurisdiction and nonest. 13. As a matter of fact, on account of coming into force the H.P. Village Common Lands Vesting and Utilization Act, 1974, the suit land vested in the State of Himachal Pradesh and the respondents-plaintiffs, who were recorded as tenants thereon, under the Panchayat, the owner before vestment of the land in the State, continued in possession as tenants and entries in the revenue record also showed them in possession as tenants. 14. The legality and propriety of the lease, created in favour of the respondents-plaintiffs by the Panchayat, was required to be examined by the Collector, under Section 4 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, but in case on such examination, he found that the lease was legal and proper, he was supposed …7… to have regularized it and in case he found that it was illegal and improper, then he could have cancelled it and recovered the possession, under the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 and the Rules framed thereunder. In the present case, legality and propriety of the lease, created in favour of the respondents-plaintiffs by the Panchayat, was not examined. Therefore, the plea of the appellant-defendant that the suit land vested in the State free from encumbrances and, hence, the tenancy in favour of the respondents-plaintiffs automatically came to an end, cannot be accepted. 15. Question of Bar of Section 10 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, to the suit instituted by the respondents-plaintiffs does not arise, because no order made by any authorities constituted under the Act has been challenged or assailed in the suit. Section 10 of the Act bars the jurisdiction of Court, where any order made by the Collector or the State Government or any officer authorized by it, under the Act, is called in question. For the foregoing reasons, both the substantial questions of law, raised in the appeal, are answered against the appellant. Hence, the appeal is dismissed. 7th November, 2009(ss) (Surjit Singh), J.