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Himachal Pradesh High Court · body

2002 DIGILAW 26 (HP)

RAJESHWAR SINGH v. STATE OF HIMACHAL PRADESH

2002-01-18

S.S.NEGI

body2002
ORDER S.S. Negi, IAS :- This revision petition under Section 20 of the H.P. Ceiling on Land Holdings Act (here-in-after called the Act or the Ceiling Act) filed by Shri Rajeshwar Singh son of Late Shri Raj Kumar Rajinder Singh son of Maharaja Padam Singh of Rampur Bushahr and three others, is directed against the order dated 30.8.1996 passed by the learned Commissioner Shimla Division in Revenue Appeal No. 155 of 1994 whereby the appeal of the present petitioners against the order of the Collector Ceiling Rampur dated 10.11.1993 was dismissed by him. 2. Briefly stated the relevant facts of the case are that after coming into force the Act. even landowner holding land more than permissible area as on the appointed day as per Section 8 thereof was required to furnish a return to the Ceiling Collector setting out therein the particulars of the land so held. Predecessor of the present petitioners Late Raj Kumar Rajinder Singh also held land more than the permissible area in various Tehsils of Shimla District and therefore was required to file the prescribed return. He filed the aforesaid return in the year 1974 in Form C-II. In course of the proceedings in pursuance of the afore said return, the Ceiling Collector passed an interim order on 12.5.1976 which was challenged in appeal before the Commissioner. The Commissioner after hearing, remanded the case to the Collector for decision afresh in accordance with Section 10 of the Act after affording opportunity of hearing to all the parties. The Collector Ceiling Rampur commenced the proceedings and vide order dated 10.6.1980 decided the case whereby Shri Raj Kumar Rajinder Singh was allowed two units of land which included one. unit allowed to Shri Rajeshwar Singh present petitioner as adult son of the landowner under section 4 of the Act 10. 027-5 Bjghas of land were declared surplus under section 11 of the Act for vestment into the State Government. Compensation for surplus area was determined and paid to the landowner Shri Raj Kumar Rajinder Singh. 3. Later on. the Settlement Officer, in course of settlement operations of the area, noticed some illegalities in the orders passed by the Collector Ceiling and accordingly referred the matter to my learned predecessor invoking his revisional jurisdiction to rectify the illegalities. Compensation for surplus area was determined and paid to the landowner Shri Raj Kumar Rajinder Singh. 3. Later on. the Settlement Officer, in course of settlement operations of the area, noticed some illegalities in the orders passed by the Collector Ceiling and accordingly referred the matter to my learned predecessor invoking his revisional jurisdiction to rectify the illegalities. It was specifically pointed out that Shri Rajeshwar Singh son of late Raj Kumar Rajinder Singh was a minor at the relevant time and hence was not entitled to the separate unit and secondly bonafide transfers mentioned in the orders by the Collector were not properly explained. My learned predecessor exercised jurisdiction under section 20 of the Act and passed an order on 5.9.1985 and held that Shri Rajeshwar Singh was not entitled to a separate unit being minor on the appointed day. therefore only one unit was permissible. He further directed the Collector to properly inquire the transactions claimed as bonafide under Section 7(2) of the Act. The order passed by the Collector Rampur on 10.6.1980 was thus set aside and the case was remanded to the Collector for passing fresh order vide order dated 5.9.1985. The proceedings commenced afresh before the Collector Rampur in pursuance of the aforesaid order passed by my learned predecessor. At this stage it is relevant to notice that forest land owned by late Raj Kumar Rajinder Singh in Chak Addu was not considered earlier by the Collector Ceiling for determining the surplus area because of litigation on the land in the various courts. This land came to be considered this time as a result of the order of the Hon"ble Supreme court vide judgment dated 20.7.1990 whereby this land was to be included in the land holdings of Raj Kumar Rajinder Singh and hence rendered countable towards calculation of surplus area. An application was also moved on behalf of late Raj Kumar Rajinder Singh before the Collector Rampur for filing a fresh return on account of land now shown in his ownership at Chak Addu and acquisition of land in Jhakhri and Kunni. The Collector allowed Raj Kumar to filed a fresh return. Subsequently draft C-V statement was prepared and served on the landowner who filed objections thereon. The landowner claimed exemptions under section 7 of the Act as bonafide transfers specifically with regard to the acquisition of land by the Nathpa Jhakhri Powar Corporation. The Collector allowed Raj Kumar to filed a fresh return. Subsequently draft C-V statement was prepared and served on the landowner who filed objections thereon. The landowner claimed exemptions under section 7 of the Act as bonafide transfers specifically with regard to the acquisition of land by the Nathpa Jhakhri Powar Corporation. Public Works Department and H.P. State Electricity Board. Besides this. 166 applications were also presented to the Collector by various other claimants claiming bonafide transactions entered into with Raj Kumar Rajinder Singh and claimed exemptions thereof under section 7(2) of the Act. The Collector inquired into the purported transfers and finally accepted 141 of these transfers as bonafide involving an area of 1225-12 Bighas and rejected the remaining 25 applications as not bonafide involving 234-01 Bighas. The Collector exempted an area of 54-89-76 Hect. As bonafide transfers under Section 7 of the Act as having been acquired by the H.P. State Electricity Board. Public Works Department and Military. The Collector, our of total 21872-15 Bighas holding of late Raj Kumar Rajinder Singh allowed him 162 Bighas within one unit as permissible area as directed by my learned predecessor treated 1956-17 Bighas of land as bonafide transfer and declared 19706-05 bighas as surplus under Section 11 of the Act which included land in Chak Addu that was not included in earlier proceedings concluded by the Collector in his order dated 10.6.1980. The compensation was ordered to be computed in accordance with section 14 of the ceiling Act. The order was passed by the Collector Rampur on 10.11.1993. 4. This order was challenged in appeal by the successors of Raj Kumar Rajinder Singh before the Commissioner. Shimla Division on the grounds that acquisition of lands for the construction of Nathpa Jhakhri Project in the year 1989. 1990 and 1991 should have been treated as bonafide transfers under section 7 of the Act and should not have been counted towards determination of permissible and surplus area of Raj Kumar Rajinder Singh, as according to petitioners, the land once having been acquired under the Land Acquisition Act. the same could not have been acquired under the provisions of the Ceiling Act and consequently this land could not have been declared surplus. the same could not have been acquired under the provisions of the Ceiling Act and consequently this land could not have been declared surplus. It was also claimed that utilization of the land so acquired for the construction of Nathpa Jhakhri Project was not one of the purposes for dealing with the surplus land as enunciated under section 15 of the Ceiling Act. The petitioner also agitated the order of the Collector on the ground of compensation awarded for the surplus land as having been ordered to be determined on the basis of classification of land as Banjar whereas the land declared surplus was Kiar. Bakhal Abal Orchard etc.. land revenue of which was higher than the Banjar land and therefore it was pleaded that compensation for the surplus area be assessed in accordance with the quality of land. The learned Commissioner after calling for the records and hearing of the parties dismissed the appeal vide order dated 30.8.1996. The learned Commissioner returning his findings on various issues raised before him observed that the exemption sought by the petitioners as bonafide transfers under section 7 of the Ceiling Act in respect of the land acquired by the Govt. or its agencies were part of the area covered in the order of the Collector passed on 10th June. 1980 where for compensation under the provisions of Ceiling Act had been paid to the predecessor of the petitioners between November. 1980 and March. 1981. The learned Commissioner accordingly rejected the claim of the petitioners under section 7 of the Act and held that lands so acquired by the State were those for which compensation under the Ceiling Act. had already been paid to late Raj Kumar Rajinder Singh. 5. The learned Commissioner further held that the question of disposal of surplus area was at the discretion of the State Government and once the petitioner landowner had obtained the compensation for the surplus land, his right, title and interest extinguished on such lands and Government could use the land for any of the public purposes. 5. The learned Commissioner further held that the question of disposal of surplus area was at the discretion of the State Government and once the petitioner landowner had obtained the compensation for the surplus land, his right, title and interest extinguished on such lands and Government could use the land for any of the public purposes. The contention with regard to compensation of the lands declared surplus on the basis of Banjar land was also dismissed by the learned Commissioner on the ground that the same principle was adopted by the Collector in his order dated 10.6.1980 which was not objected by the late Raj Kumar Rajinder Singh therefore the objection could not be raised in subsequent proceedings. He also clarified that the land declared surplus if it was not waste land and was classified as Ktar. Bakhal Abal. Orchard etc. as on 24.1.1971. the rate prevailing for that classification in the same or neighbouring estate would be applicable and in case there is no such classification and rate, the land will be treated as Banjar and the rate therefore would be applicable. Thus the learned Commissioner dealt with all the contentions raised by the petitioners and dismissed the appeal by his order dated 30.8.1996. 6. Aggrieved of this order passed by the learned Commissioner..successors of late Raj Kumar Rajinder Singh. S/Shri Rajeshwar Singh and three others have preferred the present revision petition on various grounds and it has been prayed that the land of the late Raj Kumar Rajinder Singh which have been acquired by the State Government under the Land Acquisition Act be treated as bonafide transfer and exempted from the ambit of the Ceiling Act and compensation be awarded to the petitioners for the surplus area in accordance with the rates applicable to various classifications of land and not at the rate of Banjar Kadeem. 7. At the outset it may be pointed out that the respondent State sought to oppose the present proceedings by way of an application filed in the court under order 41 Rule 27 read with Section 151 of Civil Procedure Code for permission to lead additional evidence in which the respondent State has sought to question the maintainability of the present proceedings under the provisions of Ceiling Act. as according to the respondent State, the land held by late Raj Kumar Rajinder Singh automatically vested in the State Government under Abolition of Big Landed Estates and Land Reforms Act. 1953 and petitioners or their predecessors no longer remained the owner of said land and consequently ceiling proceedings are not applicable and maintainable. The respondent state sought to produce documentary evidence in this regard by way of the said application. When the case came up for hearing on 8.1.2002. the said application was not pressed and the State Advocate was advised to press this contention before the Commissioner (Revenue) where an appeal on the similar issues is purported to be pending. The respondent State is left at liberty to raise all the grounds, pleaded in the said application before the Learned Commissioner (Revenue) where the matter is substantively in issue. Secondly, any of the parties to those proceedings would be at liberty to approach this court again against any of the grievance arising out of the order to be passed by the Commissioner (revenue) in the said appeal. Even otherwise such atrocious litigation running into decades cannot be adjudicated in course of Miscellaneous application for additional evidence when the respondent State has raised the similar issue in substantive appeal before the Learned Commissioner (Revenue). Therefore, at this juncture the application deserved dismissal. 8. Adverting to the merits of the case, the learned counsel for the petitioner urged that the land acquired by the State of H.P. for the Nathapa Jhakhri Project cannot be declared surplus as the petitioner! continued to be the owner of all the land until possession was taken over by the Government under the provisions of the Land Acquisition Act. According to the learned Counsel the vestment of the surplus land in the State is not automatic, but takes place only in consequence of transfer of possession when effected in accordance with the provisions of Section 11 of the Ceiling Act. It was argued that once the land has been acquired by the State, the same lands cannot be declared surplus under the Ceiling Act. The learned counsel relied upon the judgment of the Honble High Court delivered in CWP 356/76 titled as Sarangdhar and another versus the State of H.P. and pointed out that the State Government had already taken possession of the land situated in Jhakhri. Kunni. Addu. The learned counsel relied upon the judgment of the Honble High Court delivered in CWP 356/76 titled as Sarangdhar and another versus the State of H.P. and pointed out that the State Government had already taken possession of the land situated in Jhakhri. Kunni. Addu. Shahdhar under the provisions of Land Acquisition Act. therefore possession cannot again be taken under the Ceiling Act. It has therefore been submitted that the acquisitions made by the Government in aforesaid villages be treated as bonafide transfers and consequently be exempted from the purview of Ceiling Act under Section 7 there of. 9. The learned Assistant Distt. Attorney (Rev) opposed the plea of the petitioners on the ground that the petitioners cannot be given the benefit of acquisition of land acquired subsequent to the appointed day. 10. The learned Counsel for the petitioners has not specifically pointed out as to which of the lands of late Raj Kumar Rajinder Singh have since been acquired by the State of H.P. and have not been treated as bonafide transfers by the Collector, but scrutiny of the records of the case show that the land which are sought to be excluded from the operation of the Ceiling Act. are 531-2 Bighas in Jhakhri. 33-10 Bighas in Kunni. 29-9 Bighas in Addu and 5-0 Bighas in village Dhar. Perusal of records brings out that all these lands except 29-9 Bighas situated in Addu were declared surplus by the Collector in his order on 10.6.1980 and compensation therefore payable to the predecessor of the petitioners was also paid to him between November 1980 and March. 1981 as noted by the Collector in his order, which fact has not been denied by the petitioners. The learned counsel for petitioners has not been able to show as to how the benefit under Section 7 of the Ceiling Act is available to the petitioners once the lands declared surplus by the Collector and compensation therefore has been received | by the predecessor of the petitioners between November. 1980 and! March. 1981. The learned counsel placed reliance on Sarangdhar versus State of H.P. in which acquisition proceedings under section 4 of the Land Acquisition Act were initiated by a notification issued on 4.2.1971 and award in pursuance thereto was also announced on 10th October 1974 and possession of the acquired land was also taken by the Land Acquisition Collector on 10.10.1974. 1981. The learned counsel placed reliance on Sarangdhar versus State of H.P. in which acquisition proceedings under section 4 of the Land Acquisition Act were initiated by a notification issued on 4.2.1971 and award in pursuance thereto was also announced on 10th October 1974 and possession of the acquired land was also taken by the Land Acquisition Collector on 10.10.1974. However, the parties were not paid full compensation pending ceiling cases before the Ceiling Collector where under compensation for the surplus land was proposed to be paid to the State being owner of the surplus area and compensation of the surplus area of the petitioners was payable under the provisions of the Ceiling Act. The Hon’ble High Court H.P. held that the lands of the petitioner there were lawfully acquired by the State Government, therefore the same could not be considered as belonging to the petitioners for the purposes of determining their surplus area under the Ceiling Act and once possession was taken by the Collector under the provisions of Land Acquisition Act. the same land could not vest in the State Government once again under the provisions of Ceiling Aqx and accordingly the petitioners there were held entitled to compensation under the provisions of the Land Acquisition Act. The perusal of this case law show that the facts of the two cases are clearly distinguishable in as much as that the acquisition process in that case had started in the year 1971 i.e. earlier to the enactment of the Ceiling Act which came into force in July. 1973. whereas in the present case acquisition proceedings started admittedly in the year. 1989 and after wards. Secondly, the lands sought to be exempted now are the same which were actually declared surplus under the provisions of the Ceiling Act by the Ceiling Collector by his order on 10.6.1980 and more importantly the predecessor of the petitioners received compensation of these lands under the provisions of Ceiling Act in the year. 1980. Had the petitioners or their predecessor aggrieved of the order dated 10.6.1980 passed by the Collector Rampur. they would have preferred appeal, revision etc. against that order. Therefore the ratio of the aforesaid case law is not applicable to the facts of the present case and no benefit whatsoever is available to the petitioners on the basis of the case law. 11. they would have preferred appeal, revision etc. against that order. Therefore the ratio of the aforesaid case law is not applicable to the facts of the present case and no benefit whatsoever is available to the petitioners on the basis of the case law. 11. The learned counsel for the petitioners further contended that vestment of the land declared surplus under Section 11 of the Ceiling Act takes place on the date on which possession thereof is taken by or on behalf of the State. According to the learned Counsel the factum of taking possession becomes a condition precedent relating to vesting to take effect. The learned counsel referred to the judgment delivered by the Honble High Court H.P. in RSA No. 406 of 1992 titled as State of H.P. versus Harnama vide decision dated 3.7.1998.the authority laid down in this citation is also distinguishable from the case in hand as the land in question in the said RSA was in possession and occupation of non-occupancy tenant who acquired proprietary rights thereon with the coming into force of H.P. Tenancy and Land Reforms Act on 3.10.1975 and by virtue of a Will executed by the landowner whereas in the present case as has been noticed above the land was declared surplus by the competent authority under the provisions of the Ceiling Act and the petitioners predecessor received compensation therefore in accordance with law. Therefore conditions obtaining in the present case are succinctly distinguishable. The learned counsel further relied on (1996) V-SCC 14 to stress that the right, title and interest of .the landowner extinguish only when the possession of the land declared as surplus, is taken over by the State Government in absence of which the title and interest of the landowner will persist and land do not vest into the State. This authority is also not applicable to the present case as it lays down the applicability of Punjab Land reforms Act. 1972 to the question of surplus land held by the landowners in which it was held that once the lands declared surplus under the Pepsu Act did not vest in the State Govt.. as possession thereof had not been taken there would be fresh determination in respect of the area which the party is entitled to hold under the Punjab Act. 12. as possession thereof had not been taken there would be fresh determination in respect of the area which the party is entitled to hold under the Punjab Act. 12. The question that we are dealing with in the present case is entirely different in which we have already held that the lands were declared surplus under the provisions of the Ceiling Act. the landowner received compensation therefore-in accordance with law as applicable to the surplus land vested into the State Government, and his title extinguished there from. Therefore, it cannot be held that the landowner re-acquired the title of the land at a subsequent date and was therefore entitled to receive compensation of the same lands at the market rate or value under the provisions of Land Acquisition Act. It will not be out of place to mention that it is not the case of the petitioners that the impact and import of the order passed by my learned predecessor was that all the lands of late Raj Kumar Rajinder singh which were declared surplus and vested into and the State Government under order dated 10.6.1980 of Collector Rampur for which compensation under Ceiling Act was paid to the landowner revested into late Raj Kumar and he became owner of the lands. The intrinsic intent of the order passed by my learned predecessor was that the predecessor of the petitioners was to surrender the excess land that was allowed to him by way of a separate unit by the Collector in the year. 1980 and secondly inquiry was to be made into the transactions purported to be bonafide transfers shown therein so as to determine whether any of the land involved in the purported transfers, if not found bonafide was to vest into the State government as the law enunciate that any transfer subsequent to the appointed day. if not found bonafide shall not affect the surplus area. Therefore, there was nothing in the order of my predecessor which could be construed to mean reversion of all.lands to the landowner Raj Kumar Rajinder Singh, which lawfully vested into the State Government and compensation due paid to the landowner. if not found bonafide shall not affect the surplus area. Therefore, there was nothing in the order of my predecessor which could be construed to mean reversion of all.lands to the landowner Raj Kumar Rajinder Singh, which lawfully vested into the State Government and compensation due paid to the landowner. Therefore the plea that the aforesaid lands of the petitioners or their predecessor acquired under land Acquisition Act subsequent to the original order passed by Collector in 1980 and in 1985 by my learned predecessor be treated as bonafide transfers under Section 7 of the Act. is without any substance and therefore deserve to be dismissed. As has been said the measure and extent of surplus area shall not be affected by the transfers not found bonafide after the appointed day. 13. One subsidiary argument has also been put forth by the petitioners in this regard that the State Government is stopped from taking recourse to the ceiling proceedings in view of the action taken under the Land Acquisition Act. A citation namely: AIR. 1975-SC. page 1057 has also been cited to substantiate the plea. This argument is bereft of any substance in view of what has been said herein-above to the effect that the ceiling proceedings of the impugned land started much earlier in the year. 1974 than the.acquisition proceedings that started later during the late eighties, so much so that the impugned land was declared surplus by an order of the collector in the year. 1980. compensation payable to the petitioners predecessors was paid where after all rights, title and interest of the petitioners and their predecessor got extinguished. Under these circumstances there was is no occasion for the petitioners to claim the ownership of the impugned land and any consequential benefit arising there from in their favour. The acquisition proceedings appears to have been started under the mistaken notion in view of the fact that records of rights had not been updated and completed in accordance with the orders passed by various authorities because of continued litigation and subsequent proceedings in various courts in the matter, but the fact remained that title of the predecessor of the petitioners extinguished after he received the compensation of the impugned land. Consequently, the land has rightly been shown as surplus by the collector vide order 10.11.1993. 14. Consequently, the land has rightly been shown as surplus by the collector vide order 10.11.1993. 14. The learned counsel for the petitioners further agitated that compensation for the land declared surplus has not been ordered to be paid as per the nature of the land, but has been made to be paid by treating the waste land as Banjar. whereas according to the learned counsel for petitioners the land declared surplus was recorded as Kiar. Bhakhal Abal and Orchard etc. for which compensation in accordance with the classification of the land should have been given. The learned counsel relied upon the judgment of the Hon’ble High Court H.P. delivered on 11.7.1996 in RFA No. 61 of 1974 which pertains to a dispute between land owner and tenant, under the provisions of Abolition of Big Landed Estates Act. and hence is not at all applicable to the facts and circumstances of this case. The position on the plea of the petitioners with regard to compensation for surplus land in accordance with the classification of land, has been adequately clarified by the learned Commissioner in his order wherein it has been stated that in case any of the land declared surplus was not waste land and was recorded as Kiar. Bhakhal Abal and Orchard etc. as on the appointed day. and is assessed to land revenue in the same or neighbouring estate, that rate will apply and in case there is no such classification and rate, the land will be treated as Banjar and the rate applicable to that category shall be applied. Section 14 of the Ceiling Act lays down the principle for determination of compensation payable in respect of surplus area vested in the State Government under the Ceiling act. According to the provision of this section, if the holding or a part thereof comprising surplus area is not assessed to land revenue, the land revenue of such area shall be construed as assessed on the similar land in the estate and if not available in the estate then in the adjoining estate or estates. Waste land is required to be treated as Banjar land for the purpose of land revenue and for determination of compensation. Waste land is required to be treated as Banjar land for the purpose of land revenue and for determination of compensation. The treatment of waste land as Banjar land has been provided for in the Act for the reason that waste land is not assessed to land revenue whereas Banjar land is assessed to land revenue, which has therefore been made the basis for determination of amount of compensation. There fore, the Collector has rightly assessed the surplus land for determination of compensation. The contention of the petitioners that the compensation is illusory and highly inadequate and should be offered at the rate of 50% of the market value, tantamount to question the validity and vires of the Ceiling Act. specially Section 14 thereof, which challenge is beyond the jurisdiction of this court to entertain. Therefore this plea being devoid of any force is dismissed. 15. The learned counsel further contended that the State could not have utilized the land declared surplus for any purpose other than that envisaged in Section 15 of the Act. The learned counsel sought to question the utilization of the surplus land for commercial purpose such as construction of Power Projects by the State of H.P. for profit whereas the land acquired under Section 11 of the Ceiling act should have been distributed/disposed amongst the poorer section for improving their lot in accordance with provision contained in section 15 of the Act. 16. The question of disposal of the surplus area after acquired by the State of vested into State under Section 11 of the Act has been enunciated in Section 15 of the Act which reads as under: Section 15. Disposal of surplus Area:- (l)The surplus area which has vested in the State Government under section 11 shall be at the disposal of the State Government. (2) The State Government may. by notification in the Official Gazette, frame a scheme for utilizing the surplus area vested in the State Government by allotment. Disposal of surplus Area:- (l)The surplus area which has vested in the State Government under section 11 shall be at the disposal of the State Government. (2) The State Government may. by notification in the Official Gazette, frame a scheme for utilizing the surplus area vested in the State Government by allotment. (a) To a landless person or any other eligible person or (b) for allotment of a site to a handicapped or houseless person for the construction of a house and the allotted shall pay amount: (ii) for the land allotted to him at the rate of ninety five times the land revenue & rates and casses, thereof: (iii) for building structure or tube-well, if any at 50% of the market price of such building, structure or tube-well. 17. It is seen that section 15(1) provides that the surplus area vested in the State Government under Section 11 is at the disposal of the State Government Section 15(2) provides for utilization of the surplus area. Conjoint reading of the section show that 15(1) and 15(2) are separate provisions and does not bar the State Government from utilizing the land for any other purpose deemed appropriate by the Government. It also appears necessary to point out that this provision has been amended by the govt. by adding a separate section 15 A in the original Act. New section 15A enables the State Government to utilize any area of the land vested in it by transfer to any Department of the Government in the interest of the development of the State, if the State Government is satisfied that there are sufficient reasons to do so. The new section 15A reads as follows: Section 15A : Utilization of land for development of the State:- Not with standing anything contained in section 15 of the Act. the State Government max utilize any area of the land vested in it under this Act by lease to any person or by transfer to any Department of the Government in the interest of the development of the State if the State Government is satisfied that there are sufficient reasons to do so. 18. In view of the aforesaid provision, the claim of the petitioners as to disposal of the surplus areas is also without any merit and is therefore dismissed. 19. 18. In view of the aforesaid provision, the claim of the petitioners as to disposal of the surplus areas is also without any merit and is therefore dismissed. 19. Consequently, for .he reasons discussed herein above, the revision petition being devoid of any merit is liable to be dismissed and is hereby dismissed. 20. Orders be communicated to the parties and case file of this court be consigned to the record room after due completion.