HARI SINGH vs THE FINANCIAL COMMISSIONER (APPEALS)

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High Court of H.P.
2026:HHC:24823 
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
LPAs No. 52 & 53 of 2019
Reserved on : 30.05.2026
Pronounced on: 25.06.2026
Uploaded on:25.06.2026
Hari Singh & another .....Appellant(s)
Versus
The Financial Commissioner (Appeals) and others
…..Respondent(s).
Coram:
The Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice.
The Hon’ble Mr. Justice Bipin C. Negi, Judge.
Whether approved for reporting? Yes.
For the Appellant(s): Mr. Lalit Kumar Sharma,
Advocate.
For the respondents: Mr. Varun Chandel, Additional
Advocate General, for
respondent No. 1/State in both
the appeals.
Mr. G.R. Palsra, Advocate, for
respondents No. 2(a) to 2(g) and
respondents No. 4(1) to 4(ii).

G.S. Sandhawalia, Chief Justice.
The present two appeals arise out of a common
order passed by the learned Single Judge on 28.04.2015,
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whereby he had been pleased to dismiss Civil Writ Petition
Nos. 1706 of 2010 & 1731 of 2010, both titled as Hari
Singh & another Vs. Financial Commissioner &
others, filed by the present appellants/tenants.
2. The said writ petitions had arisen out of the same
proceedings, and, therefore, were heard together by the
learned Single Judge, being a common subject matter.
3. While affirming the concurrent findings as such
of the Authorities below, the learned Single Judge had
dismissed the writ petitions, whereby challenge was raised
by the present appellants, who are the tenants of the land
in question, against the order of resumption of the land
under the provisions of Section 104 of the Himachal Pradesh
Tenancy and Land Reforms Act, 1972 and Rules thereunder.
4. Learned Counsel for the petitioners had taken
objection before the learned Single Judge that the
application filed for resumption of land under the provisions
of the Rules, was not properly constituted and the same was
sought to be rejected being time barred, having been filed
after 31.03.1976. The learned Single Judge had also
recorded a finding of fact that on the earlier round of
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litigation, the objection regarding non-signing by two of the
land owners, had led to the abandonment of the said plea
and estopping it from agitating the said factum as it was
taken up at a highly belated stage. Similarly, the
application being within limitation having been filed in the
year 1975, could not be said to have been whittled down on
account of the subsequently issued notification when the
law applicable to the lis was in operation at the time of the
institution of the claim in the year 1975.
Arguments of the Counsel for the appellants:
5. Learned Counsel for the appellants has raised
the said issues again by saying that although the application
for resumption of land had initially been filed by Parma
Nand, Hem Raj and Surajmani, Sons of Shri Bhikham on
03.12.1975, but was only singed by Hem Raj, and not by
Parma Nand and Surajmani, and, therefore, was not
tenable in the eyes of law.
6. The second argument raised was that the Rules
initially provided the right of resumption to the landowners
for a period of one month was from the date of coming into
force of the principal Rules, which was 03.10.1975, as
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provided under Section 104(8) and Rule 21. It is submitted
that the cut off date for filing the application was initially
03.11.1975 and the application was filed beyond the said
period on 03.12.1975. It is submitted that the subsequent
substitution as such extending the period from 31.12.1975
only came into force on 15.12.1975 and would be
prospective in nature as the application was filed on
03.12.1975 and there was no such valid vested right and
the benefit as such of the provisions for resumption would
not be available.
The factual matrix:
7. A perusal of the file would go on to show that this
is the second round of litigation as such inter-se the parties,
as apparently in the first round of litigation, the application
in Form LRV under Rule 21 of the HP Tenancy and Land
Reforms Act (for short ‘the Act’) had been filed before the
Land Reforms Officer by Parma Nand, Hem Raj and
Surajmani, which was contested by filing a reply on
12.08.1983, in which no such objection had been taken, that
it was signed only by one of the landowners.
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8. The application filed on 03.12.1975 by the
landowners had been dismissed in default on 11.02.1976,
which matter was then taken to the Collector by the land
owners and he had been pleased to remand the issue by
order on 20.01.1979 to the Land Reforms Officer. The
present appellants had further carried the matter to the
higher Courts and eventually, the Financial Commissioner
vide order dated 13.11.1987 upheld the order of the lower
Court, while coming to the conclusion that the dismissal of
the application by the Land Reforms Officer on 11.02.1976
was not justified, as there is nothing on record to show that
effective service had been conducted on the tenants and
whether the proceedings had been held at the camp office
at Patwarkhana or at the Tehsil Headquarter, wherein the
application had been dismissed for reservation of the land
comprising in 55 Kita, measuring 17-5-0 bighas, situated at
Village Bahaui, Tehsil Sadar, Mandi and directions were
given to take suitable action against the Land Reforms
Officer. It was at this stage, on remand for the first time,
that an objection was raised regarding the signing of the
said initial application filed under Rule 21 of the Act that it
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suffered from the defect not having been filed by the other
land owners who are brothers.
9. In this background, the Authorities as such had
taken a call that in view of the provisions of the Act, the
landowner had a due authorization also, when he had filed
the said application on behalf of his brothers and if the
signatures were taken at the subsequent stage, the same
validated re-filing, while placing reliance upon the judgment
of this Court in Karan Singh Vs. Rachpal Singh &
others, 1977, Shimla Law Cases, 115, and further
placing reliance upon the judgment of the Apex Court in All
India Reporter Ltd. Vs. Ram Chandra Dhondo Datar
AIR 1961, Bombay 292, that an opportunity could be
given to sign and verify the plaint. It was held that it was
merely a matter of procedure and keeping in view the fact
that the provision itself provides that there could be
authorization as such under the Rules to submit the
application in duplicate to the Land Reforms Officer in
whose jurisdiction, the land is situated. Thus, the
application having been filed on 03.12.1975 was accordingly
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held to be filed within the prescribed period of limitation as
it had been extended upto 31.03.1976.
10. It is to be noticed that the order dated
07.12.1988 (Annexure P-1), passed by the Land Reforms
Officer is subject matter of challenge in Civil Writ Petition
No. 1706 of 2010, which was upheld in appeal on
30.12.1988 (Annexure P-2), whereby the applicants were
allowed to resume 17-4-14 bighas of land out of 34-9-8
bighas of land and order dated 03.03.1989 (Annexure P-1)
is subject matter of challenge in Civil Writ Petition No. 1731
of 2010 which had been upheld in appeal on 28.08.1990
(Annexure P-2) and the final order of resumption had been
passed, whereas vide earlier Order dated 30.12.1989, the
Collector had also dismissed the appeal against the order
dated 07.12.1988.
11. Two appeals were thus filed before the
Commissioner, Mandi Division, which were clubbed together
and decided on 27.05.1992 (Annexure P-3) and the said
order was then upheld on 06.11.2009 by the Financial
Commissioner (Annexure P-4) and, resultantly, led to the
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dismissal of the writ petitions on 28.04.2015, which are
subject matter of consideration in the present appeals.
Provisions in question:
12. Relevant provisions of Section 104(I), wherein
the right as such was given to landowners to resume the
land, which is in possession of the non-occupancy tenant.
read as under:-
“ 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, therefrom shall
stand extinguished free from all encumbrances
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created by the tenant or tenants to that
extent:
Provided that if the tenant has taken
loan from the State Government, a co-
operative society or a bank for the
improvement of tenancy land which the
landowner has resumed under clause (i) or
clause (ii) and has used such loan for the
improvement of such land, then the landowner
shall be liable to repay the outstanding
amount of such loan and to the extent actually
used for the said purpose and interest thereon
to the State Government or to the Cooperative
Society or a bank, as the case may be,
proportionate to the improved land resumed
by him:
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 landowner holds less than
one and a half acres of irrigated land or three
acres of 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;
(iii) the right, title and interest in the rest of
the tenancy land of the landowner, who is
entitled to resume land under clauses (i) and
(ii) shall vest in the tenant free from an
encumbrances with effect from the date to be
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notified by the State Government in the
Official Gazette;
(iv) in case the land under the tenancy is
partly irrigated and partly un-irrigated and the
landowner intends to resume land of both
these classes, he shall be entitled to do so in
the ratio and manner to be prescribed.”
13. Rule 21 provides that the application which has
to be preferred and which provided that the same could be
done till 31.11.1975, the initially prescribed period of one
month from the date when the Rules came into force i.e.
03.10.1975, was then substituted by the Notification dated
15.12.1975, extending the limitation. The same reads as
under:-
“21. Application for resumption of land by
the landowner under section 104 -
(1) A landowner who intends to resume land for
his personal cultivation under section 104 shall
himself or through an authorised person submit
an application in Form LRV in duplicate to the
Land Reforms Officer in whose jurisdiction the
land is situated. In filling up the Form the
landowner shall be assisted by the Patwari
concerned.
(2) The period for submission of application
under sub-rule (1) above is :-
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(I) for the landowners other than those
mentioned in sub-section (8) of section 104
[Upto thirty first December, 1975); [Substituted
and deemed to have been substituted w.e.f. the
date of coming into force of the Principal rules,
by Notification No. 10-5-73 Revenue, A.A.,
th
dated 15 December, 1975, published in R.H.P.,
Extraordinary, dated the 18th December, 1975,
pp. 1917.]
(ii) for the minors within 6 months from the
date of attainment of majority;
(iii) for members of Armed Forces mentioned in
clauses (c) and (d) of sub-section [(8)]
[Substituted vide Notification published in
R.H.P., Extraordinary, dated 10-12-1988, pp.
2239-2240.] [of section 104 within 3 years]
[Substituted vide Notification published in
R.H.P., Extraordinary, dated 10-12-1988, pp.
2239-2240.] from the date on which they cease
to be the members of the Armed Forces.
(iii) for members of Armed Forces mentioned in
clauses (c) and (d) of sub-section 2[(8)] [of
section 104 within 3 years] from the date on
which they cease to be the members of the
Armed Forces.”
(3). The Land Reforms Officer shall issue receipt
of the Form LRV received by him under sub-rule
(1) to the landowner in Form LRVI. If the land of
the landowner is with more than one tenant
from whom he intends to resume land under
the provisions of section 104, he shall select
the land for resumption from the tenant holding
the largest area of tenancy land and then from
the tenants who hold lesser tenancy land in
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descending order. The landowners who hold the
tenancy land jointly, they shall resume the land
with respect to their shares keeping in view the
principles of consolidation of holdings.”
Reasons to uphold the concurrent findings:
14. It is not disputed that the application was filed in
the intervening period on 03.12.1975 after the first one
month had expired but before the expiry of 31.12.1975. It
is also noted that the provisions were substituted, which
would be clear from reading the same, and therefore, would
have the effect as such of going back to 03.10.1975
because the purpose as such has to be kept in mind that the
land owner had to be given the right as such to resume the
land, but the option could only be exercised initially within a
period of one month from the date of the Rules coming into
force on 03.10.1975 by a person or by the landowner or
through an authorized person.
15. Thus, the purpose of the legislation has to be
kept in mind that the opportunity as such was granted to
the landowners upto 03.11.1975 firstly had been extended
till 31.12.1975 and there could be no ambiguity or grey area
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in between, when the State substituted the said Rule period
and extended it upto 31.12.1975 to make it obviously more
workable. In such circumstances, the application having
been filed in the intervening period, once Rules came into
force on 03.10.1975 and filing the application on
03.12.1975 could not have been said to be barred by
limitation or the argument that there was no vested right as
such on 03.12.1975 since the amendment came only on a
subsequent occasion on 15.12.1975 and, therefore, the
application is nonest, would not be liable to be accepted.
16. It is a settled principle that the rules of procedure
as such are handmaids of justice and giving clarity to the
right of the landowner which could not have been taken
away lightly and, therefore, while answering the second
question firstly, we are of the considered opinion that the
application filed was given within the prescribed period and
there could be no grey area in between, since it is the
settled principle that substitution takes place from the date
the original provision as such was incorporated.
17. Reliance can be placed upon M/s National
Insurance Co. Ltd. vs. Baljit Kaur and others, AIR
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2004 SC 1340, wherein while keeping in mind the
Heydon's case [1584 3 Co Rep 7a], and the Halsbury's Laws
of England, it was held that to add force and life to the cure
and remedy according to the true intent of the makers of
the Act has to be kept in mind to suppress the mischief and
to advance the remedy.
18. In the present case, the whole purpose as such
was to grant sufficient time to the landowners for filing their
application for resumption of land, the initial period being
just one month from the date the Rules came into force,
was thus extended till 31.12.1975, and, therefore, it was
beneficiary in nature and the clarification had been done by
way of substitution which has to be done with retrospective
effect.
19. For the said purpose, we can fall back on the
three-Judge Bench Judgment of the Apex Court in Collector
of Central Excise, Shillong Vs. Wood Crafts Products
Ltd. & others, (1995) 3 SCC 454, wherein the
controversy was that whether the “block board” was to be
classified under which heading as the controversy related to
various periods in view of the amendment made in the
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concerned Chapter under the Central Excise Tariff Act,
1986. In the said case, the decisions of the Tribunal and that
of the High were reversed giving the benefit as such to the
manufacturer and the benefits granted had to relate back
and the clarification made w.e.f. 01.03.1992 had to be read
from 19.03.1990.
20. The said view was thereafter followed in another
three-Judge Bench Judgment of the Apex Court in W.P.I.L
Ltd. Ghaziabad Vs. Commissioner of Central Excise
Meerut (2005) 3 SCC 73, wherein it had been held that
once the notification had been rescinded and a consolidated
notification had been issued from 01.03.1994, the
clarification and subsequent notification dated 24.04.1994
would take effect retrospectively. The relevant paras of the
said judgment read as under:-
“15. The learned counsel for the appellant is
also right in relying upon a decision of this
Court in Collector of Central Excise, Shillong v.
Wood Craft Products Ltd., [1995] 3 SCC 454. In
that case, this Court held that a clarificatory
notification would take effect retrospectively.
Such a notification merely clarifies the position
and makes explicit what was implicit.
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Clarificatory notifications have been issued to
end the dispute between the parties.
16. In view of the consistent policy of the
Government of exempting parts of power
driven pumps utilized by the factory within the
factory premises, it could not be said that
while issuing notification No.46/94 of March 1,
1994, the exemption in respect of said item
which was operative was either withdrawn or
revoked. The action was taken only with a
view to rescinding several notifications and by
issuing a composite notification. The policy
remained as it was and in view of demand
being made by the Department, a
representation was made by the industries
and on being satisfied, the Central
Government issued a clarificatory notification
No.95/94 on April 25, 1994. It was not a new
notification granting exemption for the first
time in respect of parts of power driven pumps
to be used in the factory for manufacture of
pumps but clarified the position and made the
position explicit which was implicit.”
21. In State Bank of India Vs. V. Ramakrishnan
& another, 2018 AIR (SC) 3876, the subject matter of
consideration was the provisions of Section 14 of the
Insolvency and Bankruptcy Code, 2016, whether the
moratorium would apply to a personal guarantor of a
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corporate debtor. Accordingly, it was held that the
clarificatory amendment was retrospective in nature and is
a declaratory statue, since it was an amendment and
reliance was placed upon a Constitution Bench judgment of
the Apex Court in Commissioner of Income Tax Vs.
Vatika Township, (2015) 1 SCC 1, wherein it was held
that if a statute is curative or merely declaratory of the
previous law, retrospective operation is generally intended
and resultantly, the judgment of the National Company Law
Appellate Tribunal was set aside, wherein it had been held
that the benefit would also apply to the personal guarantor.
22. The second aspect which is to be examined is
whether there was any application given by the other
landowners for resumption of the land. It is not disputed
that the landowners as such were brothers and the
application was preferred. It was not objected to at that
time on the said issue at all on 17.08.1983, but rather, on
merits there was no such issue as such that it had not been
signed by all the landowners, which would be clear from the
written statement then preferred and objections of the
respondents, which read as under:-
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“ The respondents state as under:-
1. That the application for reservation is not within
the period of limitation, and as such is liable to be
dismissed.
2. That the applicants have got more land that
fixed under the Act and as such their application for
reservation is not maintainable, and they are not
entitled to reservation of any land.
3. That the whole of the land is not land as defined
under the Act and as such the same is liable to be
excluded.
4. That in case of reservation the respondents
would file seperate tatima as their choice would
be the first to be considered.
5. That the respondents have already been
conferred the proprietory rights and they have
also paid the 'nazama' in the treasury. As such
the application is not maintainable.
6. That the application is not legally instituted
and correctly constituted and as such the
application is liable to rejection.
7. That the respondents have also preferred an
appeal before the Hon'ble FC and as such the
proceedings be stayed.
8. It is therefore prayed that the application be
rejected with costs.”
23. As noticed at the earlier point of time, the case
had been dismissed in default on 11.02.1976, which order
had been set aside by the Collector on 21.01.1979 and the
matter had been remanded. The present appellant had
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never been able to point out before the Authorities that the
application was not maintainable in the present form. The
remand order had been upheld by the Financial
Commissioner on 13.11.1987, as noticed above and action
had been directed to be taken against the Land Reforms
Officer, who had dismissed the application without even
perusing the file whether the service was complete or not
on the tenants and whether the case had been taken at the
Camp office or at the Tehsil Headquarter. The present
appellants-writ petitioners before the Financial
Commissioner, at that point of time, had taken no objection
to the effect that the application was signed by only one
landowner, and they had already filed their reply before the
Land Reforms Officer in which they had taken no such
objection.
24. In such circumstances, it has been rightly held
that they were estopped as such to take the said plea on
remand. Even otherwise, now they cannot take the plea
that there was a forged application which has now been
sought to be raised in the present Letters Patents Appeals
and as noticed by the Authorities, in the second round of
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litigation, since the said application was admittedly filed
only on 01.08.1988 for leading additional evidence on the
plea that Parma Nand and Surajmani were not there during
the proceedings and the application had been signed only
by one brother-Hem Raj.
25. The said application had been filed as a joint
petition at that time and objection had been taken after 13
years. In such circumstances, the Court below have
rejected the arguments that in the remand proceedings, the
same issue could not be raised having not been raised till
the level of the Financial Commissioner, which would be
clear from the objections of the appellants reproduced
above.
26. In such circumstances, we are of the considered
opinion that having given up the said objection at the initial
stage, the ground could not be taken subsequently. Even
otherwise, it was a joint application filed by the landowners
and the right as such could be of the land owners as under
the provisions of the Act and one person would be duly
authorized on behalf of the brothers and therefore, the
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reliance upon the judgment placed by the Authorities below
would also validate such action.
27. It is a matter of fact, that following four issues
were framed before the Land Reforms Officer:-
1. Whether the application is not within time? OPP
2. Whether the applicants have got more land than
the prescribed limit, if so effect? OPR
3. Whether the application is not legally instituted or
constituted? OPR
4. Whether whole of the land is not land as defined,
and its effect? OPR
5. Relief.
28. Eventually, while over-ruling the objection that
the application had been duly authorized by the other
brother and it was filed only to delay the proceedings, the
findings on merits were given that the application had been
filed as per Rules, before 31.12.1976 and the landowners as
such did not have more lands than the prescribed limits and
had the entitlement to resume the land and resultantly, out
of 34-9-8 bighas of land, permission had been given to
resume 17-4-14 bighas of land.
29. The balance land as such was to be vested with
the tenants free of compensation and the first choice of
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selection in their favour was given, which apparently they
did not avail and led to the passing of the order dated
03.03.1989 and the matter was then clubbed together after
the initial order dated 07.12.1988 was upheld by the
Collector, who had dismissed the appeal on 03.12.1989
(Anexure P-2) by coming to the conclusion that the tenants
were estopped from raising the contention that the matter
had been taken in the earlier round of litigation upto the
Financial Commissioner.
30. Similarly, vide order dated 28.08.1990, the
Collector, Mandi Division had dismissed the appeal of the
tenants by holding that the appellants had been given the
sufficient opportunities to accept the choice of resumption
of the land and were also granted time on their request for
compromising the matter amicably. It was noticed that the
application was filed way back on 03.01.1975 and till the
decision of the Land Reforms Officer, dated 03.03.1989, the
landowners were still contesting but the tenants were not
present at the site when choice of selection of the land had
to be made and the Court could not wait as such for a long
time.
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31. The Divisional Commissioner, Mandi had noticed
all the factual matrix as such and come to the conclusion
that despite of ample opportunities to choose the land, the
tenants did not exercise the right of selection of land and
resultantly, found no irregularity in the orders by taking into
consideration the orders of the Field Kanungo dated
21.09.1989 while dismissing the second appeal.
32. The Financial Commissioner, while upholding the
said orders, also noticed that the second appeal was not
maintainable and same could have been dismissed on the
ground of jurisdiction keeping in view the provisions of
Sections 61(ii) of the 1972 Act and came to the conclusion
that the tenants were trying only to linger on their case and
the deficiency of the certain aspects had been done by the
Court while keeping in view the interest as such of the
parties and the fact that the interest of the parties in the
application would be only filed by one of them. The learned
Single Judge has also rightly upheld the said orders.
33. Resultantly, keeping in view the above
discussion, this Court is of the considered opinion that the
application was filed within the prescribed period in view of
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the substitution of the provisions that the objection is
without any basis and secondly, having been filed by one of
the brothers, and the objections having not been taken at
the earlier stage in the first round of litigation, thus, the
application would be maintainable being filed by an
authorized person. The Authorities thus have not erred in
any manner in upholding the orders in question.
34. Resultantly, we do not find any plausible reason
to interfere with the well reasoned order passed by the
Authorities below and and duly upheld by the learned Single
Judge and accordingly dismiss the said appeal.
35. Pending application(s), if any, also stand
disposed of.

(G.S. Sandhawalia)
Chief Justice
(Bipin C. Negi)
Judge
June 25, 2026.
(Hemlata)
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