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2003 DIGILAW 506 (PNJ)

Mehar Singh v. Sadhu Ram

2003-04-07

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. This petition has been filed under Articles 226/227 of the Constitution of India for quashing the orders dated 26.12.1984 (Annexure P-7) passed by Assistant Collector 1st Grade, Naraingarh, Camp at Jagadhri, dated 10.12.1985 (Annexure P-9) passed by the Commissioner, Ambala Division, Ambala. 2. Mehar Singh petitioner, who is resident of Village Nabh, Tehsil Jagadhri, District Ambala, filed a suit for declaration under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act), as applicable to Haryana, against respondents No. l to 82 to the effect that the land in question measuring 4/6 kanals 1 marla is charand of the village and the same falls within the definition of Shamlat deh as defined in Section 2(g) of the Act, hence the same vests in the Gram Panchayat under Section 4 of the Act. He further pleaded that the aforesaid land in question was earmarked as charand in the consolidation of holdings which took place in the village in the year 1955-56. In the jamabandi for the year 1976-77, this land has also been shown as charand, therefore, it vests in the Gram Panchayat. Therefore, the Gram Panchayat be declared as its owner in possession. It was also pleaded that the contesting respondents in connivance with the Gram Panchayat as well as the revenue authorities, got the aforesaid land partitioned amongst themselves, whereas the said land was impartionable and the proprietors have no concern with the same because it vests in the Gram Panchayat. The aforesaid suit filed by the petitioner was contested by respondents No. 1 to 82 and the Assistant Collector II Grade vide its order dated 26.12.1984 (annexure P-7) dismissed the suit filed by the petitioner while holding that the land in question does not vest in the Gram Panchayat because it is not the charand land. 3. Feeling aggrieved against the said order dated 26.12.1984, the petitioner filed an appeal before the Collector under the Act. Vide order dated 10.12.1985 (Annexure P-8), the Collector, without hearing the appeal on merits, dismissed the same on the following two technical grounds: i) That there was deficiency of Rs.10/- in affixing the court fee and the said deficiency cannot be allowed to be made good after expiry of limitation to file the appeal. Vide order dated 10.12.1985 (Annexure P-8), the Collector, without hearing the appeal on merits, dismissed the same on the following two technical grounds: i) That there was deficiency of Rs.10/- in affixing the court fee and the said deficiency cannot be allowed to be made good after expiry of limitation to file the appeal. That initially the appeal was instituted without filing the impugned order assed by the Assistant Collector 1st Grade whereas the same should have been filed ith the memorandum of appeal. The aforesaid order dated 10.12.1985 was further challenged by the petitioner before the Commissioner, Ambala Division, Ambala. The learned Commissioner, vide order dated 14.1.1986 (annexure P-9) dismissed the said revision in limine while observing that the impugned order did not require any interference and moreover, the Gram Panchayat was not impleaded in the case being an effective party. 4. Shri S.K. Goyal, learned counsel for the petitioner, submitted that as per the revenue record the land in question measuring 423 kanals 6 marlas is recorded as charand. During the consolidation proceedings, this land was earmarked for charand and in the jamabandi for the year 1976-77, this land has been specifically recorded as charand. He further submitted that as per Section 2(g)(1) of the Act, the lands described in the revenue records as charand will be shamlat deh which vest in the Gram Panchayat under Section 4 of the Act. While referring to the decision of the Honble Supreme Court in Shish Ram and Ors. v. State of Haryana and Ors.1 (2000-3)126 P.L.R. 367 (S.C.), learned counsel for the petitioner submitted that after the land was reserved in consolidation for charand and has been depicted in the revenue record as charand, the same absolutely vests in the gram Panchayat; and the Gram Panchayat was even held entitled to use such charand land for any one or more of the purposes specified in Sub-rule (2) of Rule 3 of the Punjab Village Common Lands (Regulation) Rules. Learned counsel for the petitioner further submitted that the Collector dismissed the appeal filed by the petitioner on the aforesaid two technical grounds without any justification and reason. He submitted that the petitioner filed the aforesaid appeal on 14.1.1985 against the order dated 26.12.1984 (Annexure P-7) passed by the Assistant Collector 1st Grade and on the memorandum of appeal, he affixed court fee of Rs.15/-. He submitted that the petitioner filed the aforesaid appeal on 14.1.1985 against the order dated 26.12.1984 (Annexure P-7) passed by the Assistant Collector 1st Grade and on the memorandum of appeal, he affixed court fee of Rs.15/-. Subsequently, when the objection regarding the court fee was raised, he filed an application on 19.11.1985 under Section 149 of the Code of Civil Procedure (hereinafter referred to as the Code) for making good the deficiency in court fee by explaining how and under which impression court fee of Rs.15/- was affixed. Learned counsel further submitted that initially the petitioner filed appeal on 14.1.1985 without the copy of the impugned order as the certified copy thereof was not available on that date, since he wanted to seek injunction against the contesting respondents for restraining them from utilising the aforesaid land, therefore, he filed the appeal without the copy of the order. Subsequently, the certified copy of the said order was placed on record, when it was received by him. In view of (sic) said facts, learned counsel for the petitioner submitted that the learned Collector should not have dismissed the appeal on the aforesaid two grounds by adopting a technical (sic) of the matter. He further submitted that the revision against the order passed by the learned Collector was also dismissed by the ieamed Commissioner in limine by a non-speaking order, and while mentioning wrong fact to the effect that the Gram Panchayat was not impleaded in the case whereas it was a necessary party. Learned counsel for the petitioner pointed out that the Gram Panchayat was a party in the case and the learned Commissioner has not looked into that aspect of the matter and dismissed the revision without application of mind. 5. On the other hand, learned counsel for the respondents submitted that the aforesaid orders passed by the learned Collector as well as the Commissioner are according to the factual position on the record and the same are not liable to be interfered. 6. I have heard the arguments raised by learned counsel for the parties. In my view, the orders passed by the Collector and the Commissioner, dated 10.12.1985 and 14.01,1986 respectively, are not sustainable in the eyes of law and the same deserve to be set aside, and the matter is required to be remanded to the Appellate Authority for its decision on merits. In my view, the orders passed by the Collector and the Commissioner, dated 10.12.1985 and 14.01,1986 respectively, are not sustainable in the eyes of law and the same deserve to be set aside, and the matter is required to be remanded to the Appellate Authority for its decision on merits. It is not disputed that initially the appeal was filed within limitation by affixing court fee of Rs.15/-, which according to the respondents should have been Rs.25/-. Assuming that the appeal was filed by affixing less court fee, but the Court has the jurisdiction to allow the appellant to make up the deficiency in courtfee under Section 149 of the Code, which reads as under: "Where the whole or any part of any fee prescribed for any document by law for the time being in force relating to courtfee has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable to pay the whole or part, as the case may be, such courtfee and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance." 7. From the aforesaid provision, it is clear that the Court is having the jurisdiction to allow to make up the deficiency in court fee at any stage and if, such prayer is allowed and the court fee is paid, then such court fee shall have the effect as if it had been paid in the first instance. In number of decisions, it has been held that, under Section 149 of the Code, the Court has the jurisdiction to permit the concerned party to make up the deficiency in court fee even after the expiry of limitation for filing the appeal. In my view, the reasoning given by the learned Collector that the deficiency of court fee cannot be allowed to be made up after the expiry of limitation is wholly erroneous. 8. The second ground, on which the appeal filed by the petitioner was dismissed by the Collector, is also not sustainable. Undoubtedly, when initially the appeal was filed on 34.1.1985, It was not accompanied by copy of the order passed by the Assistant Collector 1st Grade. 8. The second ground, on which the appeal filed by the petitioner was dismissed by the Collector, is also not sustainable. Undoubtedly, when initially the appeal was filed on 34.1.1985, It was not accompanied by copy of the order passed by the Assistant Collector 1st Grade. However, the petitioner has explained that on that date certified copy of the impugned order was not supplied to him, though he had already applied for the same, therefore, he had to file the appeal without copy of the impugned order as they were to obtain injunction from the Appellate Court for restraining the respondents from utilising the land in dispute for any other purposes other than the charand and from changing the existing nature of the land till decision of the appeal before the Collector. As soon as the petitioner received the certified copy of the impugned order passed by the Assistant Collector 1st Grade, he immediately filed the same with an application before the Collector, Though, it is required that memorandum of appeal should be accompanied by the impugned order but in exceptional circumstances, the appeal can be filed without that order; and the appellant can be allowed to place on record the same subsequently. In the instant case, it is not disputed that the petitioner filed the certified copy of the impugned order before the Collector soon after it was received by him.When the appeal was dismissed by the Collector, certified copy of the impugned order was available on the record. The learned Collector has adopted a very technical approach. It is always desirable and deemed to be in the interest of justice that all the matters should be disposed of on merits. The Court should not adopt the technical view, particularly in making good the deficiency of court fee of a small amount and filing of the certified copy of the impugned order before the Appellate Authority in time, when the same was not available. In my view, the impugned order passed by the learned Collector is not sustainable in the eyes of law and the same is hereby set aside. Similarly, the Commissioner has rejected the revision of the petitioner in limine wholly without application of mind. From the very order passed by the Collector, it is clear that the Gram Panchayat was a party to the litigation and it was respondent No. 80 before the Commissioner. Similarly, the Commissioner has rejected the revision of the petitioner in limine wholly without application of mind. From the very order passed by the Collector, it is clear that the Gram Panchayat was a party to the litigation and it was respondent No. 80 before the Commissioner. The said order is also liable to be set aside. 9. In view of the aforesaid position, after setting side the orders dated 10.12.1985 and 14.01.1986, passed by the Collector as well as the Commissioner, Annexures P-8 and P-9 respectively, it is appropriate and in the interest of justice to remand the matter to the Appellate Authority (Collector, Ambala) to decide the appeal filed by the petitioner against the order dated 26.12.1984 (Annexure p-7) passed by the Assistant Collector 1st Grade, on merits. Accordingly, I remand this matter to the Collector, Ambala with a direction to decide the same according to law expeditiously, particularly within a period of six months.