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Himachal Pradesh High Court · body

2005 DIGILAW 349 (HP)

PARMODH SINGH v. TARA CHAND

2005-09-16

A.R.BASU

body2005
ORDER: These two evision petitions under section 114(3) of the H.P. of the HP. Tenancy and Land Reforms Act, 1972, have been filed by the petitioner against the orders of the Additional Commissioner (Appeal) Himachal Pradesh passed in appeals No. 209/95 on 30.9.2001. 2. Since the facts and the circumstances of both the revision petitioner are similar, these are being disposed of vide this single order. 3. Brief facts of the case are that the Assistant Collector IInd Grade Haroli attested mutations No. 2485 and 2428 on 9.6.1989 and 21.1.1989 respectively whereby he conferred proprietary rights of land measuring 71 Kanal situated in revenue estate Nangal Kanal Sub-Tehsil Haroli Distt. Una upon the present respondent under the provisions of section 104(3) of the Act. The present petitioners filed two separate appeals against the said mutation before the Collector Sub-Division Una, who dismissed the same on 2.8.1995. The present petitioners filed further appeals against the order of the Collector before the Additional Commissioner ( Appeals) who upheld the orders of the Collector and dismissed the appeals. Feeling aggrieved against the orders of the additional Commissioner (Appeals) dated 30.9.2001, the above titled revision petitions have been preferred before this court. 4. Record jf the courts below have been called for and examined. The arguments advanced by the learned counsel for both the parties have also been heard. 5. Sh. H.K. Bhardwaj the learned counsel for the petitioners argued that the respondents were conferred proprietary rights upon 27 Kanals of land of the petitioners without even going into the fact whether they were tenants at all. He further argued that the mutations were attested by the Assistant Collector IInd Grade who was not empowered to attest the same. According to him proper service was not effected upon the petitioners before attesting the mutations and these were consequently attested behind the back of the petitioners. Even the Lambardar who was present did not belong to the relevant revenue village. He referred to section 71 of the H.P. Tenancy and Land Revenue Act 1972 and argued that none of the modes of service laid down there under were resorted to for intimating the petitioners. He argued that even the land of one Smt. Kaushlya Devi who is a widow, has been conferred upon the respondent. He referred to section 71 of the H.P. Tenancy and Land Revenue Act 1972 and argued that none of the modes of service laid down there under were resorted to for intimating the petitioners. He argued that even the land of one Smt. Kaushlya Devi who is a widow, has been conferred upon the respondent. He laid emphasis on section 93 of the Act ibid and contended that the government has appointed Land Reforms Officer of the rank of Assistant Collector of the 1st Grade to carry out the purposes of chapter 9 and chapter 10 of the Act. Hence an Assistant Collector of the IInd Grade could not have attested the mutations. He cited the Honble High Court of Himachal Pradesh in the matter of Besru versus Shibu (S.L.C.(i)-page 343) in this regard. He also cited the Honble S.C. in the matter of Sarwan Kumar and others versus Madan Lai Aggarwal (SCC 2003(4), 147 and asserted that a decree which has been passed without jurisdiction is a nullity. He pointed out that as per section 104 (8) (A), the land of widow could not have been mutated in favour of the respondent. He claimed that the father of the respondent was serving the predecessor in interest of the petitioners but he never sought to get the title over the land in dispute. The respondents who never were in possession of the land was wrongly entered as a tenant there upon. Taking advantage of this fraudulent entry, he got the proprietary rights conferred upon himself. He cited the Honble S.C. in the matter of S.C. Chengalvaraya Naidu versus Jagannath & Ors. (S.C.C. 1994.1) and contended that a decree obtained by fraud is not sustainable in the eyes of law. He referred to rule 28 and 29 of the H.P. Tenancy and Land Reforms Rules, 1975 and asserted that a mutation is to be attested in presence of the parties which has not been done in the present case. Since there is a dispute regarding the entries, the matter has to be decided by the Land Reforms Officer and his decision can thereafter be given effect to by way of a mutation to be attested under Rule 25. 6. Sh. Subhash Sharma the learned Counsel for the respondents argued that the conferment of the proprietary rights upon a tenant under the Act are automatic. 6. Sh. Subhash Sharma the learned Counsel for the respondents argued that the conferment of the proprietary rights upon a tenant under the Act are automatic. According to him section 104(3) of the Act ibid is very clear in this regard. He further referred to the provisions of sub-section 4 of section 104 and contended that in case of dispute whether a person cultivating of the land of the land owner is a tenant or not, the burden to prove that such a person is not tenant lies upon the land owner. According to him since the petitioners, instead of resorting to the course open before them, have chosen to contest the mutation in conferment of proprietary rights the provisions of Rule .9 of the H.P. Tenancy and Land Reforms Rule, 1975 are not attracted in the present case. He further contended that the Land Reforms Officers as appointed by the Government under section 93 of the Act, an empowered to adjudicate upon disputes arising under chapter 9 and 10 of the Act However, in the present case, the petitioners have never raised any such issue before the Land Reforms Office s till date. The learned counsel contended that in the present case only Rule 27 of the said Rules is relevant which provides that all rights title and interest of land under tendency shall vest in the tenants from the commencement of the Rules which have come into force w.e.f. 3.10.1975. According to him, the attestation of mutations is a mere formality for which the mode of service as provided under section 71 of the Act are not applicable. 7. Having heard the arguments advanced by the learned counsel for both the parties and on perusal the record, I find that the basic contentions of the petitioners lies in the legality or illegality of the powers of the Assistant Collector of the IInd Grade in attesting a mutation of conferment of proprietary rights upon the respondents who were a recorded as tenant in the record of rights. In their grounds of appeal and petitioners have averred that the entry of the respondent as a tenant in the record of rights is by mistake and in fact he was never inducted as a tenant, nor is he in possession over the land in dispute. In their grounds of appeal and petitioners have averred that the entry of the respondent as a tenant in the record of rights is by mistake and in fact he was never inducted as a tenant, nor is he in possession over the land in dispute. The learned counsel for the petitioner has strongly contended that conferment of proprietary rights by an Assistant Collector of the IInd Grade is not valid as per law. The learned counsel for the respondent has argued that the petitioners have never chosen to contest the status of the respondents as a tenant before the Land Reforms Officer and therefore the attestation of mutation by the Assistant Collector IInd Grade under Rule 28 as read with Rule 27 of the H.P. Tenancy and Land Reforms Rules is legal and sustainable in the eyes of law. 8. Though, it is correct that Rule 28 provides for attestation of a mutation in favour of non occupancy tenants on whom proprietary rights as vested under Rule 27 to be so attested by a Revenue Officer and the Assistant Collector IInd Grade is a Revenue Officer1 as defined under section 56 of the Act ibid read with section 7 of the H.P. Land Revenue Act, 1954, the Revenue Officer so attesting a mutation of conferment of proprietary rights under Rule 28 is required to do so in presence of the parties. This basic requirement of law has been totally ignored by the Assistant Collector of the IInd Grade while attesting the mutations of conferment of proprietary rights in the present matter. This requirement of law has been also overlooked by the courts below. Hence while the Assistant Collector IInd Grade has committed a grave illegality in ignoring the provision of law as discussed here in before, both the appellate courts have failed in the exercise of the jurisdiction vested in them by over looking the illegality so committed. 9. In view of the above discussion, I find it necessary to interfere in revision. The order of the Assistant Collector Sub-Tehsil Haroli dated 9.6.1989 and 21.1.1989 passed in mutations No. 2485 and 2428 respectively and those of the Collector Sub-Division Una dated 2.8.1995 (Appeals) passed on 30.9.2001 in appeals No. 209/95 and 210/95 are set-aside. The revision petition is consequently accepted. 10. The order of the Assistant Collector Sub-Tehsil Haroli dated 9.6.1989 and 21.1.1989 passed in mutations No. 2485 and 2428 respectively and those of the Collector Sub-Division Una dated 2.8.1995 (Appeals) passed on 30.9.2001 in appeals No. 209/95 and 210/95 are set-aside. The revision petition is consequently accepted. 10. Before parting with the matter it is certified that this order shall not be a bar upon the parties to approach the Land Reforms Officer concerned to get the status of the respondent adjudicated upon. 11. Announced in the open court today on the 13.9.2005. 12. The record of the courts below be returned. This case file be consigned to the record room after due completion.