IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No. 13 of 2005 Decided on: 12th May, 2011. Kishore Chand. Appellant. Versus Financial Commissioner (Appeals) and others. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge. For the Appellant: Mr. K.D. Sood, Advocate. For the Respondents : Mr. R.K. Bawa, Advocate General, with Mr. J.K. Verma, DAG., for respondents No.1 to 4. Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate, for respondent No.5. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. (Oral) The appellant is essentially aggrieved by the order passed by the Assistant Collector Ist Grade, Hamirpur in case No. 144 of 1965 dated 23.3.1966, whereby he has been directed to be ejected from the land measuring 9 Kanal 2 Marlas in Khatta No.6 min situated in Tikka Kangru, Tappa Ugyalta, Tehsil Hamirpur. That order had passed through the Deputy Commissioner, Divisional Commissioner and finally was confirmed by the Financial Commissioner. The operative portion of the order passed by the District 2 Collector, Hamirpur, leading to Annexure P-3, order dated 6.12.1983 at para 9 reads as follows: “Now arises the question of re-settlement. The orders of ejectment passed in the year 1966 were conditional to the extent that the tenants shall be re-settled on surplus land and possession is to be given to the landowners only then. It would also not be possible to send the tenants for re-settlement to a very distant place. However, a large chunk of shamlat land has vested in the State Government of which half of the land had been kept in the allotable pool. The land out of the allotable pool can be used for allotment, exchange, re-settlement or any other suitable purpose as the Government desires. Therefore, I see nothing wrong in utilizing this Government land which is available to us, for the purpose of re-settlement of the ejected tenants. We are to make a studious enquiry about the availability of such land if possible in the patwar-circle, failing which in the Kanungo-circle or finally within the tehsil. Therefore, the Sub Divisional Officer (Civil) Hamirpur shall conduct this enquiry and carry out re-settlement of the ejected tenants.” 2. The appellant still pursued the matter before the Divisional Commissioner. The Divisional Commissioner disposed of the same by order dated 28.6.1986 with the following directions: “9. Under these circumstances, I find that there is no illegality or impropriety in the impugned order of the District Collector, Hamirpur and hereby uphold the said order. All the appeals are dismissed. As has been ordered by the learned District Collector, Hamirpur, the S.D.O (Civil), Hamirpur should process the cases for re-settlement of the appellants on lands 3 in the Allottable Pool so as to re-settle the appellants. This be done within a period of six months from the date of receipt of this order.” 3. The appellant took up the matter further before the Financial Commissioner. The Financial Commissioner disposed of the same by order dated 29.1.2000, holding that the petitioner cannot be said to be prejudiced since he was to be re-settled as per the order of the District Collector, Hamirpur, within three months. That was challenged before this Court in CWP No.265 of 2000. The writ petition was dismissed with the following directions: “The District Collector, Hamirpur, respondent-3 and Assistant Collector First Grade, Hamirpur, respondent-4 herein both are directed to comply and implement the order of the Financial Commissioner (Appeals) dated 29.1.2000 recorded in Revenue Revision No.301/86 mark Annexure P-1 whereby the petitioner is to be re-settled on the surplus land in lieu of the land he had already surrendered within a period of three months from today. Parties are however, left to bear their own costs.” 4. Aggrieved the appellant filed the present LPA. 5. When the matter came up before us, apparently being tired of the litigation, it was submitted that in case appellant gets suitable land which is cultivable in lieu of the land that is being surrendered to the private respondent, he is prepared to purchase peace. Thereafter, on 25th February, 2011, this Court directed the Deputy Commissioner to verify the availability of the land. The order reads as follows : 4 “There will be a direction to the Deputy Commissioner, Hamirpur to file an affidavit as to whether there is any alternate land available to be allotted to the appellant in lieu of the land that is being surrendered to the private respondent. The affidavit as above shall be filed within one month. The private respondent will produce a copy of this order to the Deputy Commissioner, Hamirpur.” 6. The Deputy Commissioner has accordingly filed an affidavit dated 17th March, 2011, wherein at para 3, it is stated as follows : “That as per the revenue record of tika Kangru, Mauza Ugialta, Tehsil Hamirpur, District Hamirpur land comprised in khasra No.122 measuring 0-38-64 Hect is available in allotable pool. At present there is no Government Policy in vogue for allotment of land to any person in Himachal Pradesh.” 7. Still further it is stated at paragraphs 3 and 4, as follows: “3. That the appellant Shri Kishore Chand son of Shri Mahantu resident of village Kangru, Mouza Ugialta, Tehsil Hamirpur is owner in possession of land to the extent of 00-64-52 Hect and in also in possession of land measuring 00-13-90 Hect as non occupancy tenant (Gair Marusi) as per revenue record pertaining to tikka Kangru,n Mouza Ugialta, Tehsil Hamirpur, District Hamirpur. The copies of Revenue Record are annexed herewith as Annexure “R-I”. “4. That the applicant is not eligible for allotment of land as he owns land in tika Kangru, Mouza Ugialta, Tehsil and District Hamirpur, H.P” 5 8. We are afraid that the stand taken by the Deputy Commissioner, as extracted above, regarding the eligibility of the appellant for allotment of land cannot be appreciated. His eligibility flows from the order referred to above which has become final. We also find that there is a statutory duty cast on the Government under Section 9-A of The Punjab Security of Land Tenures Act, 1953, which reads as follows : “9-A. No tenant liable to ejectment under clause (i) of sub-section (1) of the section next preceding shall be dispossessed of his tenancy unless he is accommodated on surplus area in accordance with the provisions of section 10-A or otherwise on some other land by the State Government: Provided that if the tenant concerned is the tenant of a small land-owner, he shall be allowed to retain possession of his tenancy to the extent of five standard acres including any other land which he may hold as tenant or owner until he is so accommodated on a surplus area or otherwise: Provided further that if a tenancy commences after the commencement of this Act, and the tenant is also an owner and is related to his landlord in the manner prescribed, he shall not be entitled to the benefit of this section. Provided further that the tenant of a land-owner who is a member of the Armed Forces of the Union shall also not be entitled to the benefit of this section.” 9. We are also informed that in the year 2005, in full and final settlement of the claim of the appellant the Sub Divisional Officer has allotted 5 kanals 18 marlas of land in khasra No.102/1. Be that as it may. Since the right for 6 allotment of surplus land as held by the revenue authorities and finally by this Court has become final, now the Government or the District Collector cannot be wriggle out of that liability. Therefore, this appeal is disposed of directing the District Collector, Hamirpur and the Assistant Collector, Hamirpur (Sub Divisional Collector, Hamirpur) to take steps to allot 5 kanals out of 0.38.64 hectare available in Khasra No.122. This shall be done within a period of two months from the date of production of a copy of this judgment by the petitioner before the District Collector, Hamirpur. On the appellant being put in possession of the land as above, he will surrender vacant possession of the land referred to in the impugned orders, to the private respondent and if it is not thus surrendered, it will be open to the private respondent to take possession of the land. 10. The appeal is disposed of so also the pending applications, if any. Copy dasti. (Justice Kurian Joseph), Chief Justice 12th May, 2011. (Justice V.K. Ahuja), (tr) Judge. 7