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2005 DIGILAW 137 (HP)

BHAGTU (DECEASED) THROUGH LRS v. URMILA DEVI

2005-05-17

A.R.BASU

body2005
ORDER Dr. A.R. Basu, F.C.—This revision petition has been filed by the petitioner against an order dated 22.8.2002 passed by the learned Additional Deputy Commissioner Kangra, exercising the powers of Commissioner whereby he had dismissed an appeal filed by the present petitioner against an order of the Settlement Officer (Consolidation) dated 15.9.1997, exercising the powers of Collector. The Settlement Officer had, vide the said order dated 15.7.1997, accepted an appeal of the present respondents against an order of the Consolidation Officer-cum-Assistant Collector First Grade dated 28.12.1996. 2. Brief facts of the case are that the Consolidation Officer-cum-Assistant Collector First Grade, on an application of the present petitioner, ordered the correction of the revenue entries pertaining to the land in dispute incorporated during Settlement operations of the village Kandhal, Mauza Dhameta, Tehsil Fatehpur, District Kangra. The Assistant Collector held that prior to the Settlement operations, the land in dispute was recorded in the possession of the present respondent and one Sh. Kamal Singh s/ o Sh. Sant Ram in equal shares as a gair maurusi doem under one Sh. Dharmu who was recorded as gair maurusi awal since 1951-52 till 1975-76 while these entries have been deleted during Settlement. According to the Assistant Collector, the entries qua the column of possession as existing prior to Settlement had been deleted without the orders of any competent authority. He therefore ordered on 28. 12.1996, the correction of the same as per the Jamabandi for the year 1975-76. Aggrieved against the same, the present respondents filed an appeal before the Settlement Officer (Consolidation) who, after visiting the spot and examining a number of witnesses from the relevant village, found that the present petitioner was not in possession of the land in dispute. He therefore set aside the order of the Assistant Collector First Grade holding that the entries made during Settlement were in accordance with the spot position and were therefore correct. He therefore set aside the order of the Assistant Collector First Grade holding that the entries made during Settlement were in accordance with the spot position and were therefore correct. The present petitioner filed an appeal before the Additional Deputy Commissioner, Kangra, exercising the powers of Commissioner under Section 14 of the H.R Land Revenue Act, 1954, who held vide his order dated 22.8.2002, that the order passed by the Assistant Collector First Grade as well as those passed by the Settlement Officer (Consolidation) have been so passed under the provisions of the H.R Tenancy and Land Reforms Act, 1972, and therefore an appeal as filed before him under the H.P. Land Revenue Act is not maintainable. Feeling aggrieved, the petitioner has filed the present revision petition with the prayer that the order dated 15.9.1997 passed by the Settlement Officer (Consolidation) as well as that of the Commissioner dated 22.8.2002 may be quashed and the order of the Consolidation Officer exercising the powers of Assistant Collector 1st Grade dated 28.12.1996 may be upheld. 3. The record of the Courts below was summoned and the arguments of the learned Counsel for both the parties were heard on admission as well as merits of the case. As the admission of the revision petition was not contested the same is being heard and disposed on merits. 4. Sh. R.K. Khidta, learned Counsel for the petitioner, while reiterating the contents of the petition argued that the Consolidation Officer had passed the order dated 28.12.1996 as an Assistant Collector First Grade under Sections 37 and 38 of the H.R Land Revenue Act, 1954 and not under the H.R Tenancy and Land Reforms Act, 1972 as has been wrongly concluded by the learned Commissioner. The learned Counsel further argued that the Settlement Collector has failed to appreciate the fact that the respondents had not filed a certified copy of the order of the Assistant Collector First Grade along with the appeal before him on 3.3.1997 but the same was filed later on the 27.3.1997 which was against the set procedures of law. Besides, according to the learned Counsel though the appeal against the order of the Assistant Collector First Grade dated 28.12.1996 was filed before the Settlement Officer (Consolidation) on the 3.3.1997 yet the application for condonation of delay was filed on the 8.8.1997 which again was not legally tenable. 5. Besides, according to the learned Counsel though the appeal against the order of the Assistant Collector First Grade dated 28.12.1996 was filed before the Settlement Officer (Consolidation) on the 3.3.1997 yet the application for condonation of delay was filed on the 8.8.1997 which again was not legally tenable. 5. The learned Counsel for the respondents Sh. T.S. Chauhan, on the other hand argued that the order passed by the learned Settlement Collector after visiting the spot is correct and based on the facts as are existing on spot. As regards the application for condonation of delay filed by the respondent before the Collector, he contended that such an application could be filed at any stage during the course of proceedings and it was the discretion of the Court whether to allow the application. 6. After hearing the arguments put forth by the learned Counsel for both the parties and perusing the record, it revealed that the finding of the Assistant Collector First Grade is based on the fact that the petitioner was recorded as a tenant in the revenue records prior to the Settement operations and his status of a tenant was deleted during Settlement without the order of any authority. In appeal, it was claimed by the present respondents that they had never inducted the petitioner as a tenant over the land in dispute and the entries existing in the record were wrong. The Settlement Collector (Consolidation) exercising the powers of Collector visited the spot and has examined the other landowners of the area who have stated that the petitioner is not in possession over the land in dispute. It is pertinent that the entries in favour of the petitioner existed till the year 1975-76. These entries do not find place in the Jamabandi for the year 1990-91 a copy of which is available on the case file. In my opinion, keeping in view the fact that the Assistant Collector has based his finding on the entries as they existed in the record till the jamabandi for the year 1975-76, the entire record including the Khasra Girdawaris for the intervening period from 1975-1976 till 1990-91, which is neither on record nor finds any mention in the orders of either the Assistant Collector or the Collector, were very relevant in order to arrive at a conclusion regarding the possession on spot. Besides, in the Jamabandi for the year 1975-76 one Sh. Kamal Singh s/o Sant Ram was entered as a tenant alongwith the petitioner. The order of the Assistant Collector or the Collector finds no mention of this person or as to how his name was deleted from the records. The principle of Audi Alteram Partem demands that opportunity should have been given to them before deleting their names. 7. The learned Commissioner, on his part, has not heard the appeal filed before him on merits but has dismissed the same on jurisdiction, on the ground that the same should have been filed under the H.P. Tenancy and Land Reforms Act, 1972 and not under the H.P. Land Revenue Act, 1954. It is however clear from the facts of the case that the case was initiated under the H.P. Land Revenue Act, 1954 for correction of revenue entries and was adjudicated as such by the Assistant Collector as well as the Collector. 8. For the reasons discussed hereinabove, I am of the opinion that it was incumbent upon the Collector to deal with every aspect of the matter while adjudicating upon it in appeal and as the same has not been done the interference is justified. 9. The orders passed by the Settlement Officer (Consolidation), exercising the powers of Collector dated 15.9.1997 as well as the order of the Commissioner dated 22.8.2002 are set aside. The case is remanded back to the Collector for hearing it afresh as per the observations made hereinabove after affording opportunity to all the interested parties. 10. Announced in the open Court today the 17.5.2005. 11. Record of lower Court be returned and case file of this Court be consigned to the record room after due completion. Revision petition allowed.