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2006 DIGILAW 107 (HP)

CHANDER GUPTA v. ANIL KUMAR

2006-04-18

RAJWANT SANDHU

body2006
ORDER. This revision petition has been preferred by Shri Chander Gupta,1! petitioner under Section 17 of the H.P. land Revenue Act, 1954 against order| dated 30.12.1996 passed by the Divisional Commissioner, Kangra in revision petition No. 121/94 who dismissed the same and upheld orders passed by the courts below. 2. Brief facts of the case are that Shri Anil Kumar present respondent was recorded as non-occupancy tenant under Shri Chander Gupta, the present petitioner. The settlement operations in this area were in progress and the settlement field staff entered the mutation No.4228 of Village Gagret, Tehsil Amb and put up the same before the Revenue Officer or attestation. The learned Assistant Collector llnd Grade attested the same in 24.9.1987 in the village where the land in question is situated and conferred the proprietary rights in favour of Anil Kumar, respondent under the H.P. Tenancy and Land Reforms Act. 3. Aggrieved by this order the present petitioner filed an appeal before the Settlement Collector, Una who dismissed the same vide his order dated 18.2.1994. Dis-satisfied by the order of Settlement Collector, the petitioner challenged the same before then Divisional Commissioner Kangra Division who also dismissed the petition of the present petitioner and upheld the orders passed by both the courts below. Hence, this revision petition has come before us on the following grounds:- I. The courts below was in grave error by not deciding the matter on facts as raised by the petitioner-before the court of Assistant Settlement Officer, Una who had wrongly dismissed the appeal of the petitioner on the ground of limitation on the one hand and on the other decided that the entries as made by the Assistant Collector llnd Grade in favour of the respondent are proper. The Court below failed to take cognizance of the fact that the petitioner had filed an application for condonation of delay which was not decided by the appellate authority before deciding the case on merits. 2. The learned courts below failed to take cognizance of the fact that the petitioner had filed an application for leading additional evidence on 24.4.1996 wherein certain documents were placed on record which proved that the respondent was a minor at the relevant time and the question of his being a tenant did not arise. 4. The record of the courts below has been called for and perused. 4. The record of the courts below has been called for and perused. The arguments advanced by the learned counsel for the parties have also been heard. 5. Shri L.S. Negi, Advocate, learned counsel for petitioner reiterated grounds raised in the revision petition and emphasized that the Assistant Collector 1st Grade had changed the entries regarding the land in dispute without giving adequate opportunity to Shri Chander Gupta, the owner of the land to be heard and he alleged connivance on the part of the revenue staff. He further stated that on 25.4.1996 the present petitioner produced some additional evidence relating to proof of age of the respondent but this additional evidence was not accepted by the Revenue Courts. As the time of application being filed by the respondent for correction of revenue entries, the respondent was a minor and was not entitled to claim tenancy of the area in question and subsequent conferment of proprietary rights. 6. Shri S.S. Mittal, Sr. Advocate, counsel for respondent argued that there was no point in raising the issue of limitation not being decided by the lower courts since the case had been decided on merits and this implied that the delay in filing appeal had been condoned. Three courts below had considered the case and decided the matter against the present petitioner. If the petitioner was aggrieved in the matter he should have gone in the Civil court to challenge the entries that had already been incorporated in the jamabandi. In rebuttal the learned counsel for petitioner argued that in tenancy cases a Civil Court has no jurisdiction to deal with the matter. 7. Perusal of the copy on record shows that the mutation No. 4228 was attested on 24.9.1987 by the Assistant Collector llnd Grade. Shri Anil Kumar the present respondent was present while the owner of the land Shri Chander Gupta was not present. It has been mentioned in the mutation order that the owner was not present inspite of being informed and that on the spot the possession is found to be that of Shri Anil Kumar. In the column of cultivation, the entry of Shri Anil Kumar is shown as tenant as per the entry in the Khasra Ghirdawari. On this basis the proprietary rights were conferred on Shri Anil Kumar. 8. In the column of cultivation, the entry of Shri Anil Kumar is shown as tenant as per the entry in the Khasra Ghirdawari. On this basis the proprietary rights were conferred on Shri Anil Kumar. 8. The Settlement Collector and the Divisional Commissioner upheld the orders of the Assistant Collector llnd Grade dated 24.9.1987 through their orders dated 18.2.1994 and 30.12.1996, respectively. However, it is seen that at no stage did Shri Chander Gupta get an adequate opportunity to present his case. Even though he, produced documentary evidence regarding the age of Shri Anil Kumar and report. Roznamcha of 26.4.1984, this was not taken into account and the order conferring proprietary rights was issued to benefit a person who appears to have been a minor on the date when his tenancy was recorded in the document in question. 9. It must be noted that cases regarding correction of revenue entry or for recording of tenancy and subsequent conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 must be decided with utmost care and diligence and through enquiry into the matter while giving fair opportunity to all interested parties to be heard. This is necessary if justice is to be seen to be done. After the enactment of the Act ibid, allowing a tenant to cultivate ones land is tantamount to giving it away since tenancy once recorded will inevitably result in conferment of proprietary rights except in case of the protected categories of persons listed in Section 104 of the H.P. Tenancy and Land Reforms Act, and few owners would take such a step. It can also be happen that when owners are living far away from where their owned lands are situated, others may try establish possession over such properties.. Therefore entry regarding claim of possession and tenancy must be gone into very carefully. Even in this case the record does not indicate at all how the tenancy came about or what was the rent being paid to the owner by Shri Anil Kumar. 10. lt appears that in not being afforded adequate opportunity to present his claim, gross injustice has been done to the present petitioner and this is a fit case for exercise of revisional powers by the Financial Commissioner (Appeals). 10. lt appears that in not being afforded adequate opportunity to present his claim, gross injustice has been done to the present petitioner and this is a fit case for exercise of revisional powers by the Financial Commissioner (Appeals). The orders of the learned Commissioner, Kangra Division, Settlement Collector and Assistant Collector llnd Grade passed on 30.12.1996, 18.2.1994 and 24.9.1987, respectively are set aside and the case is remanded to the Assistant Collector llnd Grade, Amb to decide the same afresh after hearing the parties. 11 Announced in the open court today the 18th April, 2006. 12. Record of lower courts he returned and the case file of this court be consigned to the record room after due completion.