IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 128 of 1998 Decided on: July 1, 2008. State of HP …Appellant Versus Lachho Ram …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. P.M. Negi, Deputy A.G. For the Respondent: Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate. Surjit Singh, Judge (oral) The present second appeal has been filed by the State challenging the judgment and decree of the learned District Judge, Kangra at Dharamshala and Sub Judge Ist Class, Kangra at Dharamshala, whereby respondent Lachho Ram has been declared to be a lessee of 0-14-89 hectares land, forming part of Khasra No.972/852/1, situate in Mohal and Mauza Maned, Tehsil Dharamshala, District Kangra, as per entries in Jamabandi for the year 1984-85, and the appellant- State of HP has been restrained from allotting the said land measuring 0-14-89 hectares to any other person, under the scheme formulated by it, in accordance with the provisions of Whether reporters of the local papers may be allowed to see the judgment? …2… the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, and the Rules framed thereunder. 2. Respondent Lachho Ram, hereinafter called plaintiff, filed a suit seeking declaration that the above described land measuring 0-14-89 hectares, hereinafter called suit land, had been allotted to him by the Gram Panchayat in November, 1971, as lessee, but necessary correction in the revenue record, with respect to the said land, had not been carried out as a result of which the land was being recorded in the revenue papers as belonging to the State of Himachal Pradesh and in its possession and forming part of allotable pool. It was stated that initially the land belonged to the Panchayat as it vested in it, under the provisions of Punjab Village Common Lands (Regulation) Act, 1961, and that later on the said land vested in the State of Himachal Pradesh, under the provisions of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. It was alleged that before the vestment of the land in the State, under the provisions of the aforesaid Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, the Panchayat in whom the land had vested, under the provisions of the Punjab Act, allotted it (the suit land) to the plaintiff, vide Resolution No.5 dated 23.11.1971, on payment of rent at the rate of Rs.2/- per Kanal and ever since the possession was with the plaintiff and he had been paying rent to the Panchayat against receipts, in writing. It was stated that since the entries were not incorporated in the revenue papers with regard to creation of lease, the State of H.P. …3… continued to be shown as owner in possession of the land, after it vested in the State Government, under the provisions of the Himachal Pradesh Act and on the basis of those entries the State (appellant) wanted to allot the suit land to some other person as it was shown to be included in allotable pool. So, he filed a suit for declaration and permanent prohibitory injunction to the aforesaid effect. 3. Appellant-defendant took the plea that the land had never been leased out to the plaintiff by the Panchayat nor did the Panchayat have the authority to create lease with respect to the same in favour of the plaintiff or for that matter any other person. It was also alleged that the suit was bad for non- joinder of necessary parties, the plaintiff had no cause of action, Civil Court did not have any jurisdiction, suit had not been properly valued for the purposes of court fee and jurisdiction and the plaintiff was in illegal possession of the suit land. 4. Trial Court decreed the suit of the plaintiff on appraisal of evidence adduced before it by the parties. Appellant-defendant went in appeal to the Court of District Judge. Appeal stands dismissed vide judgment dated 17.12.1997. 5. State of H.P. filed second appeal in this Court. With the grounds of appeal, it filed a list of substantial questions of law involved in the matter. This Court admitted the appeal without specifically stating that the same was admitted on the substantial questions of law formulated by the appellant and …4… submitted alongwith grounds of appeal. The Court also did not frame any substantial questions of law, on its own. 6. I have heard the learned Deputy Advocate General representing the appellant as also the learned counsel for the respondent. Learned Deputy Advocate General has submitted that the Panchayat did not have the authority to create lease in respect of the suit property in favour of the respondent-plaintiff and that Civil Court’s jurisdiction in the matter is barred. These submissions are based on the list of substantial questions of law filed with the grounds of appeal. He has not made any other submission. 7. In view of the aforesaid submissions of the learned Deputy Advocate General, following substantial questions of law are framed:- (1) Whether the Panchayat did not have the authority to grant lease, in respect of the suit land, in favour of the plaintiff and, therefore, the alleged allotment in favour of the plaintiff is illegal and contrary to the provisions of the Act? (2) Whether Civil Court’s jurisdiction to try and decide the suit, which has led to the filing of the present appeal, is barred? 8. As regards the first question, it is clear from a bare reading of the provisions of Section 4 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, that the Panchayats in whom village common land vested, under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961, could have lawfully created leases in respect of the land vested in it, under the provisions of the aforesaid Punjab …5… Act. Section 4 of the aforesaid Himachal Pradesh Act says that when any land vested in the Panchayat, under the Punjab Act vests in the State of H.P. under the Himachal Pradesh Act, by virtue of Section 3 thereof and the record shows that such land or any portion thereof had been leased out by the Panchayat to any person, the Collector shall call for the record of such lease from the Panchayat and examine whether the lease had been validly made and if he finds that the lease had been created lawfully, he will record a finding to that effect and the lease will be treated to have been adopted by the State Government, and if he finds that the lease was contrary to the provisions of the Punjab Act or the Rules framed thereunder or it was result of fraud, concealment of facts or detrimental to the interest of estate right-holders, he shall cancel such lease. 9. In the present case, admittedly, the land had vested in the Panchayat, under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 and thereafter it vested in the State of H.P., under the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. The Collector did not perform his function and duties, in terms of Section 4 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. The reason may be that there was no entry regarding lease created by the Panchayat in favour of the plaintiff, but that cannot deprive the plaintiff of his right to claim that he is a lawful lessee. 10. In view of the above stated position, the first substantial question of law formulated hereinabove is answered …6… against the appellant and it is held that the Panchayat had the authority to lease out the suit property. 11. Two Courts below have given concurrent finding based upon the evidence of the Pardhans of the Panchayat and proof of Resolution No.5 dated 23.11.1971, copy Ext.P-4, that lease was created in favour of the plaintiff by the Panchayat. Admission by the appellant-defendant in the written statement that the possession of the suit land is with the respondent- plaintiff lends an assurance to the findings of the two Courts below that the suit land had been leased out to the plaintiff- respondent by the Panchayat, because otherwise how could he have been in possession thereof, especially when there is no allegation that he made any encroachment or took forcible possession. 12. Coming to substantial question No.2, as formulated hereinabove, learned Deputy Advocate General submits that Section 10 of the H.P. Village Common Lands Vesting and Utilization Act, bars the jurisdiction of the Civil Court. The argument is without merit, because what is barred by Section 10 of the aforesaid Act is a suit challenging an order passed under the provisions of the Act by the Collector or the State Government or any Officer authorised by the State Government. 13. In the present case, no order of Collector or State Government or any Officer authorised by the State Government, passed under the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, has …7… been challenged. Hence, the question of operation of bar, contained in section 10 of the aforesaid Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, does not arise. Consequently, the second question is also answered against the appellant. 14. For the foregoing reasons, the appeal is dismissed. July 1, 2008, (ss) (Surjit Singh ), J.