LONGU v. JNDHVIR SINGH — 1978 DIGILAW 4 (HP)

JUDGMENT H. S. Dubey, I. A. S. (F. C.)—This revision petition under section 16 of the Punjab Land Revenue Act (hereinafter called the Act) has been filed before me by Shri Longu against the orders of the learned Commissioner, dated 30-10-75, whereby he upheld the orders of the Settlement Collector, Kangra dated 25-3-1975 and rejected the appeal of the present petitioner. 2. The brief facts of the case are that the present petitioner moved an application before the Assistant Collector IInd Grade (Tebsildar), Kangra for the correction of khasra girdawari entries in respect of certain khasra Nos. The Assistant Collector, IInd Grade allowed the application and ordered that the entries in the khasra girdawari for Kharif, 1973 and Rabi, 1974 in respect of land comprising khasra No. 154 min, measuring 0-21-63 hectares be recorded in favour of the applicant/petitioner as Gair Mauroosi Gala Batai Nisfi.’ This application was decided by the Assistant Collector, IInd Grade under the provisions of Chapter IX of the Land Records Manual. Aggrieved by these orders, Shri Judhvir Singh and others filed an appeal before the Settlement Collector, who after hearing the parties held that as no proper enquiry as required under section 36 of the Act was conducted by the Assistant Collector, IInd Grade the application cannot be treated to have been processed under this section of the Act. This was according to him, a legal infirmity in the order. He, therefore, referred the matter to arbitration under section 127 of the Act. This order was agitated by the present petitioner in an appeal before the learned Commissioner on the grounds that the Settlement Collector had erred in holding that the correction could be ordered under section 36 of the Act ; and that he could not refer the matter to arbitration under section 127 of the Act, for there was no dispute before him. The learned Commissioner dismissed the appeal holding that the order of the Assistant Collector, IInd Grade was erroneous as he had decided the application under Chapter IX of the Land Records Manual instead of section 36 of the Act. He further held that the Settlement Collector was fully competent to refer the matter to arbitration as the appeal was In the nature of a rehearing of the entire matter, and this had kept the dispute alive. He further held that the Settlement Collector was fully competent to refer the matter to arbitration as the appeal was In the nature of a rehearing of the entire matter, and this had kept the dispute alive. It is against this order of the learned Commissioner that the present proceedings have arisen before me 3. I have heard the learned counsel for both the parties in detail and have considered the records of the case carefully. 4. Though a number of grounds have been taken in the petition, the learned counsel for the petitioner pressed only a few of them. He vehemenlty urged that section 36 of the Act was applicable for correction of record of rights only; and Khasra Girdawari net being a pan of record of rights, the learned Commissioner had erred in holding that the provisions of this section were applicable for correction of khasra girdawari entries also. He went on to argue that there was a specific provision, contained in chapter IX of the Land Records Manual stipulating the procedure fur correction of entries in khasra girdawari. In support of his contention, he cited Gurbachan Singh v, Sansar Chand and others, LLT 1958 page 89 ; Smt Lajwanti and another v. Harbans Lai, PLJ 1972 page 161 ; Sawan Singh v; Mehan Singh and another, LLT 1956 page 35 ; Bhagwan Kaur v. Jhanda Singh and others, LLT 1967 page 197. The next point urged by the learned counsel was that the Settlement Collector had erred in referring the matter to arbitration as there was no dispute before him. He further contended that even assuming that there was a dispute before him, he could only refer the matter to arbitration during the pendency of the case and not after accepting the appeal as was done in this case. He tried to establish that in doing so, the Settlement Collector had acted beyond his jurisdiction. Lastly, he asserted that in referring the matter to arbitration under section 127 of the Act, the Settlement Collector had acted illegally inasmuch as he had not complied with the mandatory requirements of sections 128 and 129 of the Act which enjoin that the parties be given an opportunity to nominate their arbitrators. 5. Lastly, he asserted that in referring the matter to arbitration under section 127 of the Act, the Settlement Collector had acted illegally inasmuch as he had not complied with the mandatory requirements of sections 128 and 129 of the Act which enjoin that the parties be given an opportunity to nominate their arbitrators. 5. The learned counsel for the respondents opposed the arguments of the learned counsel for the petitioner and went on to argue that section 36 of the Act was applicable for corrections, not only in the "record of rights" but also in "any record". He elaborated his point saying that the instructions contained in chapter IX of the Land Records Manual prescribed the procedure for correction of entries in khasra girdawari during harvest inspection; while the statutory provisions for ordering correction were contained in section 36 of the Act Any executive instructions could not override the provisions contained in the Act, he urged. As for the reference made by the Settlement Collector to arbitration under section 127 of the Act, it was contended that since the appeal was a continuation of the proceedings and was a re-hearing of the entire matter by the appellate Courts, there was certainly "dispute" before the Settlement Collector and as such he was well within his jurisdiction to refer the matter to arbitration. Regarding the jurisdiction of the Settlement Collector in referring the matter to arbitration after accepting the appeal, it was contended that the reading of the entire order of the Settlement Collector would show that in fact he had kept the orders of the Assistant Collector, IInd Grade (Tehsildar), Kangra in abeyance till the award was presented by the Arbitrators and the final decision taken on the basis of the award. He further stated that if the Settlement Collector had accepted the appeal, there was no point in his referring the matter to arbitration. The learned counsel had, however, no convincing reason to offer why the Settlement Collector dispensed with the requirement of nomination of Arbitrators by each party under section 128 of the Act. He, however, asserted that since no material irregularity had been caused to the petitioners by the orders of the Courts below, no interference was called for in revision. The learned counsel had, however, no convincing reason to offer why the Settlement Collector dispensed with the requirement of nomination of Arbitrators by each party under section 128 of the Act. He, however, asserted that since no material irregularity had been caused to the petitioners by the orders of the Courts below, no interference was called for in revision. In support of his contention, he cited the cases of Khera and others v. Dhanrrn, LLT 1932 page 17 and Ganncuh Dass v. Ram Kishan and others, LLT 1941) page 18. 6. I have weighed carefully the arguments put forward by the learned counsels for both the parties. In Gurcharan Singh v. Sansar Chand, LLT 1958 page 89, it has been held "that sections 34 and 35 of the Punjab Land Revenue Act, do not concern khasra girdawari entries and the latter cannot be corrected under them. Khasra girdawari does not form a part of record of the rights, entries in it cannot be the subject-matter of a "mutation. A correction of such an entry is to be made under the procedure laid down by executive instructions." In Smt. Lajwanti and another v. Harbans Lal, PLJ 1972 p. 161, it has been held that "there is no provision for filing a suit in Revenue Courts for correction of entries in khasra girdawaris". In case Swan Singh v. Mehan Singh and another, LLT 1956 page 35, it has been held that" there is no such thing as a mutation in respect of entries in the khasra girdawari as it does not form part of the record of rights and there is no obligation under sections 34 and 35 of the Punjab Land Revenue Act to correct it. The basic procedure for the correction of wrong khasra girdawari entries is prescribed in paragraph 9.9, of the Land Records Manual and these provisions were relaxed vide Memo. No. 13722-R-52/7345, dated 21nd Dacember". In case Bhagwan Kaur v. Jhanda Singh and others LLT 1967 Page 197, it has been held that" the Revenue Officer to whom an application for correction of khasra girdawari is made, is expected to ascertain the situation as it exists on the spot and to record accordingly in khasra girdawari, A careful study of the cases referred to above would reveal that they are not on all fours with the facts of the present case. There is no denying the fact that khasra girdawdri is not a part of the record of rights". But it is equally undeniable that khasra girdawari is a "record" and not a mere scrap of paper. Section ;6 of the Act refers not only to the making of or preparation of the record ofrighs but also to the making or preparation of "any record", in view of the clear and comprehensive provisons of section 36 of the Act, Khasra Girdawari is undoubtedly a "record" though not a "record of rights" or "annual record. As such, an application made to a Revenue Officer for correction of khasra girdawari entries has to be processed and decided under this section of the Act. In these circumstances, the contention of the learned counsel for the petitioner that the correction of the khasra girdawari can only be made under the provisions of Land Records Manual cannot be accepted. The provisions of the Manual have been restricted in their scope to "harvest inspection as even the title of chapter 9 of the Manual shows. Once this stage of harvest inspection is over, the applicability of these provisions lose all validity. I, therefore, hold that while the correction in the khasra girdawari during the course of harvest inspection can be effected under Chapter IX of the Land Records Manual, the applications made to the Revenue Officer for correction of khasra girdawari entries is to be dealt with and decided under section 36 of the Act. 7. Coming to the next point, whether or not the Settlement Collector was competent to refer the matter to arbitration under section 127 of the Act, I have no hesitation to say that an appeal being a continuation of the proceedings is rot distinct from the proceedings started in the Court of first instance. 7. Coming to the next point, whether or not the Settlement Collector was competent to refer the matter to arbitration under section 127 of the Act, I have no hesitation to say that an appeal being a continuation of the proceedings is rot distinct from the proceedings started in the Court of first instance. This view finds support from the explicit ruling of the Allahabad High Court, in case Ram Chand v. Ram Swamp, AIR 1952 AIL 654, in which it has inter alia been held that "an appeal is not a proceedings distinct from a suit but a further continuation of the proceedings started in the Court of first instance and when an appeal is filed against a decree passed by the Court of first instance in a suit, the suit is removed to the Court of appeal and continued and reheard there subject to such limitation as are prescribed by the Civ. P. C. Such being the nature of an appeal, an appellate decree also is a decree passed in a suit though by the Court of Appeal". This being so there was certainly a "dispute" before the Settlement Collector, the matter having been "removed" to his court and he was fully competent to refer the matter to arbitration. I agree with the learned counsel for the respondents that the Settlement Collector had not finally decided the case. I have, however to observe that the concluding paragraph of his order which it had been stated that the appeal was accepted is rather confusing in its import. A logical reading of the entire order would however, show that the intention was to keep the order of the Assistant Collector, IInd Grade in abeyance till the presentation of the award and the final decision of the case thereon. There is, therefore, no material irregularity on this count causing prejudice to the parties. 8. As for the non-compliance with the provisions of sections 128 and 129 of the Act, the learned counsel could not bring to my notice any authority under which the requirement of nominating the arbitrators by the parties could be dispensed with. He pleaded that in referring the matte? to arbitration, the Settlement Collector had in fact provided an opportunity to the parties for placing their claims and counter-claims in greater detail before the Arbitrators. There was, therefore, no prejudice caused to the petitioner. He pleaded that in referring the matte? to arbitration, the Settlement Collector had in fact provided an opportunity to the parties for placing their claims and counter-claims in greater detail before the Arbitrators. There was, therefore, no prejudice caused to the petitioner. Nor has there been, he contended further, any irregularity or injustice to the petitioner in referring the matter to arbitration. As such, he argued, there was no case for interference in revision. In the case of Khera and others v, Dhanna LLT 1932 p. 17, it has been held that it the Financial Commissioner is not bound to interfere even in a case in which a defective jurisdiction is established unless he is satisfied that his declining to interfere would lead to injustice or failure of justice." In Ganesh Dass v. Ram Krishan and others, LLT 1940 p. 18, it has been held that i the Financial Commissioner will act in revision only when the conditions defined under section 115 C. P. C. have been fulfilled i.e, when there has been some failure of jurisdiction and also when there has been material injustice. Where the whole proceedings are academic the Financial Commissioner will refuse to interfere in revision. 9. I am afraid, the authorities cited by the learned counsel do not cover the omission of the Settlement Collector in dispensing with the requirements of sections 128 and 129 of the Act. On grounds of equity and natural justice, it must be held that an irregularity had obviously crept in the proceedings before the Settlement Collector while issuing an order of reference and thereby denying the parties an opportunity to nominate their arbitrators. His order of reference cannot, therefore, be sustained to this extent. 10. For the foregoing reasons, I partially accept the revision petition and remand the case to the settlement Collector, Kangra to make a fresh order of reference specifying therein, inter alia the number of arbitrators which each party to the dispute is to nominate and then decide the case in accordance with the law. 11. Orders to be communicated. Revision partially accepted.