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1997 DIGILAW 360 (HP)

MUNSHI RAM v. STATE OF H. P.

1997-09-10

A.L.VAIDYA, M.SRINIVASAN

body1997
JUDGMENT M. Srinivasan, CJ. (Oral): In this writ petition, the petitioner is challenging the correctness of the order passed by the Consolidation Officer dated 20.5.1986 (Annexure PB) and the order dated 23.9.1988 passed by the Joint Director, Land Records (Annexure PC). The writ petition was filed in this court on 23.1 1.1 9,0. On 17.12.1992, the Deputy Advocate General took notice on behalf of respondent No. l and 2 and the Court ordered notice before admission to respondent No.3 and 4. On 5.3.1991 at the Oral request of the petitioners counsel, the 4th respondents name was dated in the individual capacity and the 4th respondent was .mown thereafter, as Assistant Consolidation Officer, Amb, District Una. The Court also took note of the fact that a reply had beer, filed en behalf of respondent No. l and 2. The Assistant Advocate General took notice on behalf of respondent No.4. Four weeks time, was granted on behalf of respondents No.3 and 4 for filing the reply. Again time was extended by three weeks to file the reply by respondent No.3 on 16.4.1991. On 21.5.1991, the writ petition was admitted and the interim order dated 17.12.1990 was made absolute. 2. When the matter came before us on 7.8.1997, we found that all records must be made available to the court for deciding the case in a proper manner and adjourned the case to 1st September, 1997. The case has come up before us today. 3. The learned Advocate General has produced a letter from the Assistant Consolidation Officer, Amb, District Una addressed to him on 30.8.1997 in which it is stated that the relevant records have been weeded out. The letter does not indicate the date on which such weeding out of the records has been weeded out. The letter does not indicate the date on which such weeding out of the records took place. The said letter is kept on record. 4 We have already referred to the fact that a reply was filed by respondents No. l and 2 in this court on 19.1.1991. That reply was signed by the Additional Director Consolidation of Holdings. That pre-supposes that the, records were available to the Additional Director at that time in order to file a reply in this Court. It is not necessary at this stage to refer to the defence taken therein about which we will mention a little later. That reply was signed by the Additional Director Consolidation of Holdings. That pre-supposes that the, records were available to the Additional Director at that time in order to file a reply in this Court. It is not necessary at this stage to refer to the defence taken therein about which we will mention a little later. For the present, it is sufficient to note that the records ought to hate been available-with the concerned officials in January 1991 when the reply was filed. The officials were fully aware of the filing of the writ petition and the matter having been taken up by the Court and notices having been issued. The writ petition was admitted on 27.5.1991. That means that a rule nisi was issued by this court on 27.5.1991. When the prayer in the writ petition is for issue of a certiorari to call for the records and to quash the orders passed by the officials referred to already, the rule nisi meant that all the records should be produced before the court and at least should be kept ready for production before the court by the concerned officials whenever required. Inspite of such rule nisi, it is not understandable how the records were weeded out by the concerned officials/Particularly, when the Assistant Consolidation Officer has not even mentioned the date of such weeding out of the records, the Court has no hesitation to presume that the weeding out of the records took place only after the issue of rule nisi. Prima facie, we are of the opinion that this make out a case of contempt on the part of the officials as there is a clear case of disobedience of rule nisi issued by this Court. In the circumstances, we direct the Registry to register a separate case for contempt against (1) the joint Director of Land Records, HP. Shimla, (2) The Consolidation Officer, Amb, District Una and (3) the Assistant Consolidation Officer, \mb, District Una and issue notice to them to show cause why they should not : punished for contempt of Court inasmuch as they had allowed the records to be weeded out inspite of a-rule nisi having be i issued to them in this writ petition. 5. 5. Now proceeding further with the merits of the case, the complaint of lie petitioner in short is that he is the owner of the land in question and the ntries in the revenue records showed him to be the owner of the land. An application was given by the 3rd respondent in this petition for entering him as non-occupancy tenant vide Annexure PA. As per the said application, the 3rd respondent claimed to have been in physical possession and cultivated the land by performing much labour and that he had cattle shed on the said land. He requested the concerned official to inspect the spot and direct the necessary corrections in the revenue records to be made and his name be entered as non-occupancy tenant. 6. On that application, the Assistant Consolidation Officer, 2nd Grade inspected the land and passed an order stating that he was satisfied that the 3rd respondent herein was in possession of the land and that he had a cattle shed of his own. On that basis the Assistant Consolidation Officer made a recommendation for an entry being made in favour of the 3rd respondent herein showing him as non-occupancy tenant. On such recommendation, the consolidation Officer passed an order on 206.1986 as follows : "It is, therefore, ordered that the land comprised in Khasra No.953/1, 955/1 and 961 be shown under the non-occupancy tenancy of Sim Lachhman Dass son of Mangtu on payment of l/4th of the yield." 7. The above order was challenged by the petitioner before the Director, of Consolidation. The Joint Director of Land Records passed an order on 23.9.1988 dismissing the revision petition of the petitioner holding that the order of the Consolidation Officer was based on the report of the Assistant Consolidation Officer and it did not suffer from any illegality as it was passed after hearing the parties. 8. The petitioner has filed the present writ petition challenging the above two orders of the Consolidation Officer and the Joint Director. . 9. Respondent No. 1 and 2 have filed a reply in which it is stated that the enquiry conducted by the Assistant Consolidation Officer was under Section 21(2) of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (hereinafter referred to as the Act) and it was quite legal. . 9. Respondent No. 1 and 2 have filed a reply in which it is stated that the enquiry conducted by the Assistant Consolidation Officer was under Section 21(2) of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (hereinafter referred to as the Act) and it was quite legal. It is also stated that the plea of the, petitioner that the 3rd respondent is not a tenant is not sustainable and there was no .requirement in law to record the statements of the person on the spot. It is stated that the enquiry was summary and the procedure of correction of Khasra Girdawari or the procedure under the Land Revenue Act was not liable to adopted by the Assistant Consolidation Officer as prescribed under Section 21(2) of the Act. It is also stated that there was no question of title involved in the case and it was a dispute regarding the correction of the revenue entries and such correction could be ordered under Section 21(3) of the Act by the Consolidation Officer and there was no question of referring the matter for arbitration under Section 21(4) of the Act. It is also stated in the reply as follows: "The contents of this sub-para are denied. Since Shri Lachhman respondent was in possession of the aforesaid land, therefore, it is presumed that he was entitled to pay rent to the landlord. Khasra No.961 measuring 1-10 kanals is cultivated land and its l/4th produce is given to the landlord as rent. The l/4th share of the benefits of uncultivated land is also given to the landlord as ascertained and enquired by the A.C.O./C.O. on the spot. Hence the version of the petitioner is not tenable." 10. The 3rd respondent has filed a separate reply in which he has also reiterated the stand taken by respondents No. l and 2, that under Section 21 of the Act, the enquiry relates to the correctness on the entries could be made on the spot inspection and summary enquiry on the spot. He has also stated in paragraph 9(v) of his reply that Khasra No.961 measuring 1-10 Kanals is cultivated land and its 1 /4th produce is being given to the landlord as rent and the l/4th share of the benefits of the uncultivated land is also being paid to the landlord. He has also stated in paragraph 9(v) of his reply that Khasra No.961 measuring 1-10 Kanals is cultivated land and its 1 /4th produce is being given to the landlord as rent and the l/4th share of the benefits of the uncultivated land is also being paid to the landlord. It is stated that the said fact was verified on the spot by the Assistant Consolidation Officer and the consolidation Officer and, therefore, the change in the entries, was ordered. 11. We have already referred to the application filed by the 3rd respondent in which there was no reference whatever to the payment of rent to the landlord. What all was stated by the 3rd respondent was that he was in physical possession and he had brought the land under cultivation by performing much labour and that he had a cattle shed. He had never stated that he was paying rent to the landlord. The only claim made by him was that his name should be entered as non-occupancy tenant. By that expression, one can say that he could not claim any right to be an occupancy tenant as defined under Section 3 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. But in the absence of any specific averment in his application that he was paying any particular rent to the land owner, it is not possible for the authorities to come to of conclusion that he was a tenant liable to pay l/4th of the produce by way of rent. While the report of the Assistant Consolidation Officer did not mention anything about the liability of the 3rd respondent to pay any rent, the Consolidation Officer observed that the 3rd respondent was liable to pay l/4th of the yield to the petitioner herein as his non-occupancy tenant. It is not known how I the Consolidation Officer could come to such a conclusion when there was no such statement by either party. It is not as if a detailed enquiry was held by the Consolidation Officer or the Assistant Consolidation Officer to ascertain the quantum of rent payable by the 3rd respondent to the petitioner. It is not known how I the Consolidation Officer could come to such a conclusion when there was no such statement by either party. It is not as if a detailed enquiry was held by the Consolidation Officer or the Assistant Consolidation Officer to ascertain the quantum of rent payable by the 3rd respondent to the petitioner. In such I circumstances, the order of the Joint Director confirming the order of the j Consolidation Officer holding that the 3rd respondent was liable to pay l/4th , I of the yield to the petitioner is wholly unsustainable in the eye of law and both the orders deserve to be quashed. 12. Hence, both the orders are quashed and a direction is issued that the concerned authority, namely, the Assistant Consolidation Officer shall make an enquiry into the matter and give an opportunity to both the parties to put forward their respective cases. Thereafter, the Assistant Consolidation Officer shall make an appropriate report as to whether the entries in the revenue records should be changed or not 13. An apprehension is expressed by the learned counsel (hat the consolidation proceedings could have been concluded and there could have been de- notification of the area in view of the lapse of number of years after the filing of the writ petition. If that is so, the Assistant Consolidation Officer shall refer the matter to the concerned revenue official for holding the enquiry and issuing appropriate orders thereon. 14. In the circumstances, the writ petition is allowed with the above direction and the parties will bear their respective costs. The interim order is vacated. Petition allowed.