IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 242 of 2006 alongwith CMPMO Nos.244, 245 & 246 of 2006. Date of Decision: 21.12.2010 Smt.Bali Devi and others (in all cases) ..Petitioners. Versus. 1.Sh.Shyam Dutt and another in CMPMO No.242 of 2006 2.Sh.Atma Ram and another in CMPMO No.244 of 2006 3.Sh.Rama Nand and another in CMPMO No.245 of 2006 4.Sh.Amba Dutt and another in CMPMO No.246 of 2006 ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Petitioner (s): Mr.B.N. Misra, Advocate. For the Respondent(s): Mr.Bhupinder Gupta, Senior Advocate with Mr.Neeraj Gupta, counsel for respondent No.1 in all cases. Mr.Rajesh Mandhotra, Dy.A.G. for Respondent-State. Deepak Gupta, J (oral) 1. These petitions are being decided by a common judgment since they arise out of one order passed by the Financial Commissioner and identical questions of law and fact are involved in all the petitions. 2. Petitioners are all tenants of private respondents who are the landlords. The predecessors in interest of private respondents filed applications for resumption of tenancy land on the ground 2 that they were not holding in their personal cultivation one and half acres of irrigated or three acres of un-irrigated land. It is not necessary to give the entire history of the case but it would be pertinent to mention that initially these applications were rejected mainly on the ground that original owners were also cultivating some land which belonged to Chaturbhuj Jaunaji temple as Mohatmims of the said temple and therefore such land should be included in the holding while calculating the land in their personal cultivation. In earlier proceedings the Divisional Commissioner vide order dated 19th April, 1989 while allowing the appeal of the land owners and giving permission to the tenants to lead evidence regarding the land, if any, transferred by the land owners made the following observations: “It is, however, clarified that land belonging to Chaturbhuj temple under the Mohtminship of the appellants will not be reckoned towards their self cultivation while working out the permissible area for this purpose.” 3. Thereafter, the matter was heard by the Land Reforms Officer who allowed the resumption of the land. Aggrieved the tenants filed appeal. 3 One of the grounds taken was that the land which the land owners were holding as Mohtmins of Chaturbhuj temple should also be counted while calculating the land under their personal cultivation. This plea has been rejected by all the authorities below. Hence, this petition. 4. A preliminary objection has been raised that in view of the fact that the earlier order dated 19.4.1989 passed by the Divisional Commissioner has attained finality the tenants cannot be permitted to raise such a contention. There is merit in this contention since if a party is aggrieved by any order of remand whereby some findings have been given against it, it could have challenged the said order in Revision or Appeal. Having not filed an appeal the petitioners cannot raise this plea in subsequent proceedings. 5. Be that as it may, I myself have gone into this question as to whether the land held by the land owners as Mohtmins of temple should be included in their land holding as envisaged by Section 104 4 of the H.P. Tenancy and Land Reforms Act, relevant portion of which reads as follows: “104.Right of tenant other than occupancy tenant to acquire interests of landowner:- (1) Notwithstanding anything to the contrary contained in any law, contract, custom or usage for the time being in force, on and from the commencement of this Act, if the whole of the land of the landowner is under non-occupancy tenants, and if such a landowner has not exercised the right of resumption of tenancy land at any time since January 26, 1955, under any law as in force:- (i)such a landowner shall be entitled to resume before the date to be notified by the State Government in the Official Gazette and in the manner prescribed, either one and a half acres of irrigated land or three acres of un-irrigated land under tenancy from one or more than one tenants for his personal cultivation and the right, title and interest (including contingent interest, if any) of the tenant or tenants, as the case may be, there from shall stand extinguished free from all encumbrances created by the tenant or tenants to that extent: Xxxxxxxxxxxx Provided further that the landowner shall not be entitled to resume from a tenant more than one half of the tenancy land: (ii)in case the landowners holds less than one and a half acres of irrigated land or three acres un-irrigated land in his personal cultivation, he shall be entitled to resume tenancy land only to make up the land under his personal cultivation to the extent of one and a half acres of irrigated land or three acres of un-irrigated land, as the case may be, subject to the other conditions laid down in this section.” 5 6. It has been urged on behalf of the petitioners, relying upon the second proviso extracted hereinabove that a land owner is not entitled to resume land from a tenant in case he holds more than one and a half acres of irrigated land or three acres of un-irrigated land in his personal cultivation. According to the petitioners, the land which is owned by Chaturbhuj temple and is in possession of the landowners should be deemed to be land in their personal cultivation and if that area is added to their land, the land owners would not hold less than one and a half acres of irrigated land or less than three acres of un- irrigated land. 7. To appreciate the rival contentions of the parties, it would be important to go behind the sprit of the Act. The H.P. Tenancy and Land Reforms Act was promulgated as a Land Reforms Act to ensure that the land goes to the tiller. However, at the same time, the legislature was not unaware of the difficulties being faced by small land owners who themselves would become destitute or totally landless in case their entire land was given to the 6 tenants. Therefore, a provision for resumption was made in Section 104 itself, which provided that a land owner who has in his personal cultivation less than one and a half acres of irrigated land or less than three acres of un-irrigated land would have a right to resume half of the tenancy land from each of the tenants so as to make good the deficiency. Therefore, a tenant would not loose more than half of the tenanted land. 8. Furthermore, the resumption has to be made proportionately from all tenants and the resumption has to be made in such a manner that after the total land is resumed the land in the personal cultivation and holding of the land owner is either one and a half acres of irrigated land or three acres of un-irrigated land. Thus, it is more than apparent that the intention of the legislature was to ensure that small land owners should also be protected and they were given a right to resume some extent of their land. 9. We are mainly concerned with the second proviso. It has been urged by Sh.B.N. Misra, learned counsel for the petitioners that the words 7 used in this proviso are “personal cultivation” and even if the landlord is cultivating the land of some other person like the temple in the present case, the land being in his personal cultivation has to be counted towards his holding. On the other hand Sh.Bhupinder Gupta, learned senior counsel appearing on behalf of the land owners urges that the land being held as Mohtims of the temple is not owned by the land owners and is being cultivated not personally but on behalf of the temple and therefore cannot be counted towards the holding of the land owners. 10. In my view, this proviso is actually meant for an entirely different purpose. A land owner may own a large extent of land but he may be in personal cultivation of less than one and a half acres of irrigated land or three acres of un-irrigated land. Therefore, while he is given a right to resume, the land which is owned by him but is not in his personal cultivation is not to be counted and only the land which is owned and personally cultivated by him has to be taken into account for calculating the one and a half acres of irrigated 8 land or three acres of un-irrigated of land. In case, the entire section is read as a whole it is more than apparent that the word holding in the proviso has been used in the sense of having title in the property akin to ownership. The intention of the legislature and the purpose behind the statute should normally be not lost sight of while interpreting any statute. The intention in the present case was to firstly give land to the tiller and secondly to protect the small land owner. 11. Even otherwise, I am clearly of the view that the Mohtmin of a temple does not cultivate the land of the temple in his personal capacity. It is well known that a Mohtmin is like a Manager of the temple. His services can be dispensed with by the Deity or the Committee managing the Deity. In fact, the Mohtmin is not even entitled to the proceeds or income of the land cultivated by him and these are expected to be deposited in the temple funds. Therefore, it cannot be said that the land of the temple being cultivated by the Mohtmin is under his personal cultivation. 9 12. For the aforesaid reasons, I find no merit in these petitions which are accordingly rejected. No costs. December 21, 2010 ( Deepak Gupta ), J. PV