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Himachal Pradesh High Court · body

2005 DIGILAW 393 (HP)

PRAN NATH MEHTA v. SANTOSH PURI

2005-10-25

A.R.BASU

body2005
ORDER The petitioner, Sh. Pran Nath, has filed the present revision petition under Section 17 of the H.P. Land Revenue Act, 1954 against an order passed by the Assistant Collector, Second Grade, Manli, District Kullu, on mutation No. 2658 dated 19.6.2002 with the prayer that same may be set aside. Brief facts of the case are that the Assistant Collector Second Grade attested mutation No. 2658 dated 19.6.2002 in favour of the respondents on the basis of a with No. 1686/1051 dated 14.5.1998 executed by Sh. R.N. Mehta, the father of the respondents No.1. Performa respondents No. 2 to 4 as well as the petitioner. The petitioner is aggrieved by the attestation of the mutation, as, according to him khasra Nos. 255 and 255/1 which have new recorded in the ownership of Smt. Santosh Puri, were, in fact, bequeathed in favour of one Smt. Raj Rani, the mother of the petitioner and which according to him he has inherited from her. According to the petitioner he was not afforded an opportunity of being heard when the impugned mutation was attested. 2. The original mutation No. 2658 dated 19.6.2002 was called for and perused. The arguments advanced by the learned counsel for both the parties were heard. 3. Sh. Pawan Kaprate, the learned counsel for the petitioner argued that late Sh. R.N. Mehta had bequeathed his land as well as structures situated in Phati Manali, Tehsil Manali in favour of the present petitioner as well as the respondent and Performa respondents. The said mutation which was attested on the basis of Will No. 1686/1031 dated 14.5.1998 could not have been attested behind the back of the petitioner who was one of the legal heirs as per the Will. The learned counsel cited my Id. predecessor in the matter of "Sheela Devi and ors. Vs. Kanshi Ram, PLJ 1985 284 and the Id. Financial Commissioner Punjab in the matter of "Smt. Bhagwan Kaur Vs. Bhura Singh and ors. PLJ 1973, 79 to fortify his arguments in this regard. According to the learned counsel for the petitioner has been snatched of his legal right of presenting his case before the Assistant Collector find Grade as khasra Nos. 2055 as well as 2055/1 upon which a residential house which late Sh. R.N. Mehta has bequeathed upon the petitioner has been wrongly given to the respondent No.1. According to the learned counsel for the petitioner has been snatched of his legal right of presenting his case before the Assistant Collector find Grade as khasra Nos. 2055 as well as 2055/1 upon which a residential house which late Sh. R.N. Mehta has bequeathed upon the petitioner has been wrongly given to the respondent No.1. The learned counsel further argued that Smt. Santosh Puri is and always was in possession of the guest hou8se consisting of two rooms a bath room and glazed Veranda which is in Khasra No.2046. This fact is confirmed by the demarcation report and copies of "Khatauni Bandobast which is on record. He asserted that Smt. Santosh Puri is residing in U.S.A. and she is not entitled into interfere I (sic- to interfere in) the property bequeathed in favour of Shri Pran Mehta which comprised of residential house alongwith servant quarters situated in khasra No. 2055 and 2055/1. According to the Id. Counsel, even if the Khasra No.s of the two properties has been inadvertently mentioned wrongly, the description of the property is very clear in the Will which itself speaks for the intention of the testator and therefore the mutation should be attested accordingly. 4. Sh. Chirag Bhanu, learned counsel for respondents No.1 as well as the proforma respondents No.2 to 4 argued that the petition, as filed by the petitioner is not maintainable as he has failed to avail of the channels of appeal before the Collector. He cited my Id. predecessor in the matter of "Chetu Vs. Masadi and ors. SLC 1977 220" in this regard. According to him, the mutation No. 2668 was attested as per the contents of the Will executed by late Sh. R. N. Mehta. He further argued that the petitioner has been bequeathed a share by Smt. Smt. Raj Rani in her Will and he is a sole owner only of that particular share. As per the Will of Late Sh. R.N. Mehta the petitioner is only to act as a trustee of certain portion of the land as described in the Will. According to the learned counsel, the petitioner has challenged the contents of the Will before the Id. Sub-Judge, Manali and he therefore cannot be seek redressal for his grievance from two-forums. 5. In rebuttal, the Id. R.N. Mehta the petitioner is only to act as a trustee of certain portion of the land as described in the Will. According to the learned counsel, the petitioner has challenged the contents of the Will before the Id. Sub-Judge, Manali and he therefore cannot be seek redressal for his grievance from two-forums. 5. In rebuttal, the Id. Counsel for the petitioner argued that the provisions of Section 17 of the Act have been enacted by the legislature to ensure justice in cases where grave miscarriage of justice in excess of their jurisdiction is committed by subordinate authorities and the present case is one such example where no opportunity of being heard has been given to the petitioner. 6. Having perused the record and hearing the arguments advanced by the learned counsel for both the parties. I find that the question involved is whether the i mutation has been done after due opportunity to the parties when there was contradiction in the Will between the description of the property and the khasra Nos. thereto or not. Thus either the mutation No. 2658 was rightly attested by the Assistant Collector IInd Grade Manali in due exercise of jurisdiction or not in(sic-is) the moot point. 7. It is clearly established by a bare perusal of the order dated 19.6.2002 passed on mutation No. 2658 that the petitioner was not called for while attesting the mutation. This has amounted to an injustice being caused to him as he was certainly a legal heir of the executants of the Will and was also one of the beneficiaries of the state. This is a gross violation of the principles of natural justice. 8. In view of the above irregularly committed by the Assistant Collector IInd Grade Manali, the order dated 19.6.2002 as passed on mutation No. 2658 is not sustainable in the eyes of law and hence the judgment cited by the Id. Counsel for the respondents doe not hold in the present case. It has been held in (sic) by the Honble Punjab and Haryana High Court in the matter of Narinder Singh versus State of Haryana. 1978 PLJ-362 that if an order adverse to a party is passed without giving an opportunity of being heard the order is illegal and liable to be set-aside. 9. Similar view have been expressed in the matter of "Sheela Devi and ors. Vs. 1978 PLJ-362 that if an order adverse to a party is passed without giving an opportunity of being heard the order is illegal and liable to be set-aside. 9. Similar view have been expressed in the matter of "Sheela Devi and ors. Vs. Kanshi Ram, PLJ 1985 284" and also in "Smt. Bhagwan Kaur vs. Bhura Singh and ors. PLJ 1973, 79" of (sic) cited by the Id. Counsel for the petitioner. 10. Further it has been held by my learned predecessor in the matter of Smt. Bohtu and another versus Sarjit Singh and another, 1977 ILR (H.P. Series) 792 (F.C.) any material irregularity resulting in failure of justice should be corrected as and when it come to the notice of the Financial Commissioner. Mere efflus of time can not be allowed to have the effect of mitigating the basic infirmity in the proceedings before the Revenue Officers. 11.The order dated 19.6.2002 adversely effecting the petitioner as passed on mutation No.2658 begin so passed without affording an opportunity to him is liable to be set-aside being a case of exercise of jurisdiction with material irregularity. The same is accordingly set-aside and the case is remanded back to the Assistant Collector IInd Grade Manali to decide the mutation afresh after visiting the site and giving the opportunity of being heard to all the concerned parties and after going through the Will as there is variation in the description of property vis a vis the khasra Nos. This aspect be kept in view while attesting the mutation. The revision petition is accepted. 12. Announced in the open court today on the 25.10.2005. The record of the courts below be returned and case file be consigned to the record room after due completion.