Research › Browse › Judgment

Himachal Pradesh High Court · body

1999 DIGILAW 263 (HP)

MATHURA DEVI v. SUKHDEV SINGH

1999-12-03

R.L.KHURANA

body1999
JUDGMENT R.L. Khurana, J.—This Second Appeal has been directed by the defendants against the judgment and decree dated 22.6.1991 of the learned District Judge, Una, affirming the judgment and decree dated 30.11.1988 of the learned Sub Judge 1st Class, Amb. 2. The subject-matter of the dispute between the parties is the land measuring 6 kanals 12 marlas comprising of Khewat No. 83, Khatoni Nos. 508-min and 517, Khasra Nos. 1374, 1375 and 275 of village Jowar, Tehsil Amb, District Una, specifically described in the plaint and hereinafter referred to as the land in dispute. 3. Respondents No. 1 to 4, hereinafter referred to as ^he plaintiffs filed a suit for declaration that they and the proforma defendant (respondent No. 5 in the present appeal) are the owners and in possession of the land in dispute. Shri Basanta (the original defendant No. 1 and the predecessor-in-interest of the present defendants-appellants) was not in possession thereof. He was never inducted as a tenant qua the land in dispute. The revenue entries showing him in possession of the land in dispute as a tenant are wrong and the same were rightly corrected by the consolidation authorities. The order dated 7.8.1982, passed by the Director, Consolidation, directing the restoration of the revenue entries in favour of the said Basanta is wrong, null and void. It was averred that on the basis of the said wrong order, Basanta had started interfering with their possession. Consequently, relief of injunction was also prayed for restraining the defendants from interfering with their ownership and possession qua the land in dispute. 4. The defendants, while resisting the suit averred that Shri Basanta, their predecessor-in-interest, was in possession of the land in dispute previously as tenant and that he became the owner thereof by operation of law, The said Basanta was never evicted from the land in dispute nor he had at any time relinquished his tenancy. The revenue entries wrongly changed in favour of the plaintiffs were rightly restored in his favour in revision by the Director, Consolidation. 5. The two courts below concurrently held the plaintiffs and the proforma defendant to be the owners and in possession of the land in dispute. The revenue entries in favour of the defendants and their predecessor-in-interest as well as the order dated 7.8.1982 of the Director, Consolidation, were held to be wrong, null and void. 5. The two courts below concurrently held the plaintiffs and the proforma defendant to be the owners and in possession of the land in dispute. The revenue entries in favour of the defendants and their predecessor-in-interest as well as the order dated 7.8.1982 of the Director, Consolidation, were held to be wrong, null and void. Consequently, the suit of the plaintiffs stands decreed as prayed, by the two courts below for declaration and injunction. 6. The following substantial questions of law arise in the present case:— 1. Whether Civil Court has the jurisdiction to decide the matter which has been finally decided by the Director of Consolidation of Holdings in view of Section 57, H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971? and 2. Whether the jurisdiction of the Civil Court is barred where the tenant has been ordered to have become owner under H.P. Tenancy and Land Reforms Act, 1972, by the Competent Authority? I have heard the learned Counsel for the parties and have also gone through the record of the case. Question No. 1. 7. Section 57, H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (for short: the Act of 1971), bars the jurisdiction of the civil court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application can be filed under the provisions of the Act. Section 57 reads:— "Jurisdiction of civil court barred as regards matter arising under this Act.—No person shall institute any suit or other proceedings in any civil court with respect to any matter arising out of the consolidation proceedings or with respect to any other matter in regard to which a suit or application can be filed under the provisions of this Act." 8. The case of the defendants to that during the consolidation proceedings, the revenue entires appearing in favour of deceased defendant Basanta were changed by the Patwari in favour of the plaintiffs. Resultantly, a revision was filed under Section 54 of the Act of 1971 by the said Bansanta before the Director, Consolidation, exercising the powers of the State Government, under the Act. Such revision petition was allowed by the Director on 7.8.1982, vide order Ex. D-3 and the revenue entries in favour of Basanta were restored. 9. Resultantly, a revision was filed under Section 54 of the Act of 1971 by the said Bansanta before the Director, Consolidation, exercising the powers of the State Government, under the Act. Such revision petition was allowed by the Director on 7.8.1982, vide order Ex. D-3 and the revenue entries in favour of Basanta were restored. 9. It has been contended on behalf of the defendants that since the order Ex. D-3 was passed by the Director, during the consolidation proceedings, the civil court has no jurisdiction in the matter in view of the bar under Section 57 (quoted above). 10. Section 54 of the Act of 1971, deals with the power of revision of the State Government. It provides: "Powers of the State Government to call for proceedings,—The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any office under this Act call for and examine the record of any case pending before or disposed by such officer and may pass such orders in reference thereto as it thinks fit: Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration." 11. A bare perusal of the above provisions shows that power of revision may be exercised by the State Government for the purpose of satisfying itself as to the legality or proprietory of— (i) any order passed; or (ii) scheme of consolidation prepared or confirmed; or (iii) repartition made; by any officer under the Act. 12. Section 14 of the Act of 1971 provides for declaration by the State Government that in the interest of the general public and for better cultivation of land it has decided to make a scheme of consolidation for any estate or a group of estates or a sub-division of an estate. 12. Section 14 of the Act of 1971 provides for declaration by the State Government that in the interest of the general public and for better cultivation of land it has decided to make a scheme of consolidation for any estate or a group of estates or a sub-division of an estate. Section 15 which deals with the effect of declaration made under Section 14 provides: "Effect of declaration.—(1) On the publication of the declaration under Section 14 an estate group of estates or a subdivision of an estate as the case may be, shall be deemed to be under consolidation operations from the date of such publication until the publication of the notification that the consolidation operations have been closed. (2) Where an estate group of estates or a sub-division of an estate is under consolidations operations, the duty of maintaining the maps, field book and preparing in annual record under the Himachal Pradesh Land Revenue Act, 1954 (6 of 1954), as applicable to the areas which formed part of the Himachal Pradesh immediately before the 1st day of November, 1966, and the Punjab Land Revenue Act, 1987 (17 of 1987) as applicable in the areas added to Himachal Pradesh under Section 5 of the Punjab re-organisation Act, 1966 (31 of 1966) and the rules framed thereunder, shall stand transferred to the Settlement Officer (Consolidation), and thereupon all the powers conferred on the Collector and Assistant Collector under the said Acts and rules, shall, so long as an estate group of estates or a sub-division of an estate remains under consolidation operations, be exercised by the following officers— 1. The Director of Consolidation of Holdings; 2. Settlement Officer (Consolidation); 3. Consolidation Officer; 4. Assistant Consolidation Officer; (3) The State Government may by notification confer on any officer mentioned in sub-section (2), the powers of Collector, all or any of the powers with which an Assistant Collector, may be invested under the Himachal Pradesh Land Revenue Act, 1954 (6 of 1954) or the Punjab Land Revenue Act, 1987 (17 of 1987) as the case may be." 13. As stated above, it is the admitted case of the defendants that the revenue entries in their favour were changed by the Patwari and not by any officer enumerated under Section 15(2) of the Act of 1971. As stated above, it is the admitted case of the defendants that the revenue entries in their favour were changed by the Patwari and not by any officer enumerated under Section 15(2) of the Act of 1971. There is nothing on the record to show as to when such change of revenue entries was made. The defendants instead of approaching the officer exercising the powers of Assistant Collector, under the Act of 1971 assailing the action of the Patwari changing the revenue entries, filed a revision petition under Section 54 of the Act of 1971 before the Director Consolidations, exercising the powers of the State Government. Such revision petition on the face of it was not maintainable, since the same was not against any order passed, scheme prepared or confirmed, or repartition made by an officer under the Act of 1971. The Director had, thus, exercised the jurisdiction not vested in him under the Act of 1971 and as such the order Ex. D-3 passed by him cannot be said to be the one arising out of consolidation proceedings so as to attract the bar laid down under Section 57 of the Act of 1971. 14. Once it is shown that the authorities envisaged under the Act of 1971 have exercised the jurisdiction not vested in them or have exercised the jurisdiction vested in them in a wrong manner, or that they have failed to comply with the procedure prescribed under the Act, the civil court would have the jurisdiction and Section 57 of the Act of 1971 cannot be called in aid to oust the jurisdiction of the civil court. 15. The question is accordingly answered against the defendant. Question No. 2. 16. Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 (for short the. Act of 1972), deals with the acquisition of proprietary rights by tenants, other than occupancy tenants. The officer competent to grant such proprietary rights in favour of the tenant is the "Land Reforms Officer" conferred with such powers under the Act of 1972. Vide Notification No. 1-8/68-Rev. 1 dated 27/29.9.1975, all the Tehsildars exercising the powers of Assistant Collector 1st Grade have been appointed as Land Reforms Officers for the purpose of Act of 1972. 17. In the present case, admittedly, proprietary rights were never granted to the defendants or Basanta, their predecessor-in-interest, by the Land Reforms Officer. Vide Notification No. 1-8/68-Rev. 1 dated 27/29.9.1975, all the Tehsildars exercising the powers of Assistant Collector 1st Grade have been appointed as Land Reforms Officers for the purpose of Act of 1972. 17. In the present case, admittedly, proprietary rights were never granted to the defendants or Basanta, their predecessor-in-interest, by the Land Reforms Officer. The predecessor-in-interest of the defendants, have been held to have become the owner of the land in dispute by operation of law, that is, on the coming into force of the Act of 1972, by the Director, Consolidations, vide his order dated 7.8.1982 (Ex. D-3). 18. The order Ex. D-3 passed by the Director, while discussing question No. 1 above, has been held to be without jurisdiction. Besides, the Director was never invested with the power of Land Reforms Officer under the Act of 1972. Nor he has invested with the powers of appellate authority or revisional authority under the Act of 1972. Therefore, the declaration by him that the deceased Basanta, the predecessor-in-interest of the present defendants, had become the owner of the land in dispute by operation of law, that is, on the coming into force of the Act of 1972 cannot be said to have been made by a competent authority under the Act of 1972. Therefore, the jurisdiction of the civil court is not barred under Section 112 or Section 115 of the Act of 1972. The question is decided against the defendants. Final order. 19. As a result of the decision on the two questions of law above, the present appeal is dismissed, leaving the parties to bear their own costs. Appeal dismissed.