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Himachal Pradesh High Court · body

2007 DIGILAW 27 (HP)

DEVINDER SINGH v. DEPUTY COMMISSIONER, UNA

2007-01-23

RAJWANT SANDHU

body2007
ORDER 1. This revision petition has been filed against orders of Assistant Collector, 2nd Grade, Amb passed in mutation Nos. 4437, 4438,4439, 4440 and 4441 dated 21.9.19987 vide which order of the Collector, District Una in ceiling case No. 535 of 1974 was wrongly incorporated in the revenue record. 2. Brief facts of the case are that Shri Davinder Singh, petitioner filed an application before this court that one Shri Chain Singh and the petitioner were owners to the extent of 1/3 share each in the land in dispute situated in revenue village, Amb. Accordingly, vide an order dated 9.9.1975 passed in ceiling case No. 535/74 and order dated 31.7.1976 passed in ceiling case No. 571/74 both the said persons were declared owners to the extent of 273 kanals each. It was averred that a mutation No.3029 dated 9.9.1975 was attested which was later reviewed and rejected on 3.6.1979 by the Assistant Collector, 2nd Grade concerned. Further, it had been alleged that during the settlement operations of the area, mutation Nos. 4437, 4438, 4439, 4440 and 4441 were attested and the area of the petitioner which was 273 kanals was reduced to 14 kanals only and the rest of his land was wrongly shown to be in the ownership of Shri Chain Singh and his family members. He requested that the mutations may be got reviewed and a report in this regard may be obtained from the Sub-Divisional, Collector, Amb in this regard. The Sub-Divisional, Collector, Amb submitted through the District Collector, Una on 27.11.2004. His report appeared to confirm the contentions of the petitioner and it has been recommended that the orders of the Financial Commissioner for reviewing the mutations may be sought. The petitioner after also filed a formal revision petition before this court which was taken on record. 3. The main grounds taken in the revision petition are that the petitioner and his brother Shri Chain Singh were owners to the extent of 1/3 of land situated in Mohal Amb and other revenue villages of Tehsil Amb. After coming into force of the H.P. Ceiling on Land Holdings Act, 1972. Two units of land measuring 633 kanals were allotted to Shri Chain Singh vide file No.535/74 dated 9.9.1975 and one unit comprising of 316.10 kanals was allotted to the petitioner vide file No.571/74 dated 31.7.1976. After coming into force of the H.P. Ceiling on Land Holdings Act, 1972. Two units of land measuring 633 kanals were allotted to Shri Chain Singh vide file No.535/74 dated 9.9.1975 and one unit comprising of 316.10 kanals was allotted to the petitioner vide file No.571/74 dated 31.7.1976. It has been averred that when, mutations No.4437,4438, 4439, 4440 and 4441 were incorporated by the Settlement staff, the petitioner was left with only 14 kanals of land in Mohal Amb. According to the petitioner the entries made in pursuance to the said mutations are required to be quashed and the allotment of land made in favour of the petitioner vide file No.571/74 dated 31.3.1976 is required to be implemented in the revenue record. 4.The orders of the Collector, District Una dated 9.9.1975 passed inland ceiling case No.535/1974 and order dated 31.7.1976 passed in case No.571/1974 as available on record alongwith copies of the relevant mutations and revenue record have been perused. The report of the Sub Divisional Officer (Civil), Amb dated 27.11.2004 has also been duly considered. Arguments advanced by the Id. Counsel for the parties have also been heard. The Id. Counsel for the petitioner reiterated the grounds taken in the revision petition and prayed that the report dated 27.11.2004 submitted by the S.D.O. (Civil), Amb may be considered and appropriate orders of correction in the revenue records may be passed. 5. Written arguments have been submitted on behalf of the respondents No.4 to 6, wherein it has been averred that the respondents No.4 to 6 have not been allowed to be impleaded as a party to the proceedings and the mater has been listed for arguments though it has been pointed out that a copy of the revision petition has not been furnished to the said respondents. It has further been averred that the petition is grossly time barred and is not maintainable as it suffers from misdisclosures and non-disclosure of wrong facts. According to the respondents No.4 to 6, Shri Chain Singh against whom allegations have been leveled in the revision petition has not been impleaded as a party and as such the hearing of the petition is in contravention to the well settled principle of audi alteram partem. According to the respondents No.4 to 6, Shri Chain Singh against whom allegations have been leveled in the revision petition has not been impleaded as a party and as such the hearing of the petition is in contravention to the well settled principle of audi alteram partem. It has been contended that the petitioner has ought a novel way of seeking to upset the mutations by seeking remedy under Section 17 of the Act even when he has never challenged the order passed in 1975 under the H.P. Ceiling on Land Holdings Act. While citing "Kashmir Singh v/s State of H.P, 2002 (1) SLC, 834" it has been averred that the revisional powers have to be exercised within a reasonable period. It has further been contended that Shri Chain Singh and his family members were hisadari owners in possession of the land and subsequent to passing of the orders under the H.P. Land Ceiling Act they had become the exclusive owners thereof. The petitioner, according to respondents 4 to 6 has not come with clean hands and the claim preferred by him was sought to be adjudicated in the Civil Court and vide judgment of Honble High Court of Himachal Pradesh passed in "RSA No. 351 of 1988 decided on 30.12.1999 titled as Nogender Singh vs Devender Singh & ors." The same was dismissed by the Honble Court as was an SLP filed before the Honble Apex court. 6. The learned ADA (Rev) appearing for the State stated that the State has no interest in the dispute and wrong entries in the revenue record, if any, may be ordered to be corrected. 7. So far as not allowing the respondents No.4 to 6 to be impleaded as party in the present revision petition is concerned, it was on the orders of this court dated 2.5.2006 that the petitioner submitted a revised memo of parts on 17.5.2006 wherein respondents No.4 to 6 were impleaded as parties to the petition. Notices were subsequently issued to the respondents and service on behalf of these respondents was waived by the learned vice counsel on 5.9.2006. The matte was then fixed for arguments on 31.10.2006 when the parties sought adjournment. Another adjournment was sought by the Id. Vice counsel or the respondent on 2.1.2007, which was granted. Notices were subsequently issued to the respondents and service on behalf of these respondents was waived by the learned vice counsel on 5.9.2006. The matte was then fixed for arguments on 31.10.2006 when the parties sought adjournment. Another adjournment was sought by the Id. Vice counsel or the respondent on 2.1.2007, which was granted. It has wrongly been averred in the written arguments filed by respondents No.4 to 6 that the application filed under Order 1 Rule 10 CPC for impleading them as party was never allowed. In fact they were impleaded as party on the direction of this court and subsequent filing of an amended memo of parties by the petitioner. The application filed under Order 1 Rule 10 CPC stands allowed when notices were issued to the parties and subsequently notices were waived on their behalf by their learned counsel on 5.0.2006. Two adjournments on their request were also granted on 31.10.2006 and 2.1.2007 to advance their arguments but they failed to do so. The mater was taken up for arguments on 9.1.2007 and the learned vice counsel for respondents No.4 to 6 sought time to file written arguments while the counsel for the petitioner as well as the State submitted their oral arguments. I was on the request of the vice counsel for the respondents No.4 to 6 that she was given time to file her written arguments which she subsequently did on behalf of the original counsel and these are being taken on record and are being duly considered. So far as the contention that copy of the revision petition has not been supplied to them, the same does not seem to have been prayed for during the course of proceedings as there is nothing on record to suggest that these were sought from the court during the hearings. However, all the grounds taken in the revision petition have been contested in the written arguments submitted on behalf of respondents 4 to 6 which are being duly considered. 8. Having perused the available record and duly considered the arguments put forth by the parties, it appears that the claim of the petitioner basically is that his land has been substantially reduced in the revenue records. 8. Having perused the available record and duly considered the arguments put forth by the parties, it appears that the claim of the petitioner basically is that his land has been substantially reduced in the revenue records. While both the petitioner as well as the respondents No.4 to 6 have admitted that the District Collector, Una had decided land ceiling cases qua the land held in ownership and possession by both the parties in the year 1975 the only dispute seems to be regarding the implementation of the orders passed under the H.P. Ceiling on Land Holdings Act, 1972 in the revenue records. The S.D.O.(Civil) has, in his report dated 27.11.2004, stated that the order dated 9.9.1975 passed in land ceiling case No.535/74 has been wrongly implemented in the revenue record vide mutations No.4437,4438,4439,4440 and 4441. Hence, it prima facie appears that it was due to erroneous attestation of mutations that order dated 9.9.1975 was not properly incorporated in the revenue records. None of the parties have contested the finality of the order of 9.9:1975 and therefore, in case this order has not been correctly incorporated in the revenue record, the same is a patent error which is required to be corrected even though it may have found its way into consecutive jamabandis. Since only legal entries are required to be made in the revenue records, the exercise of revisional powers becomes necessary when it is found that wrong entries are existing the revenue record which require rectification. 9.Hence, since this is apparently a case where unless revisional powers vested in me under section 17 of the H.P. Land Revenue Act are not invoked, there is a possibility of wrong and misleading entries continuing in the revenue record ultimately leading to failure of justice and it is to avoid such a failure of justice that revisional powers of the Financial Commissioner have been provided for to be exercised at any time, the issue of limitation in this case is technicality which can be dispensed with in the larger interest of justice. 10. In the present matter it is only required to be seen whether the order dated 9.9.1975 passed by the Collector, District Una, in land ceiling case of 535/1971 has been implemented in the revenue record as intended. 10. In the present matter it is only required to be seen whether the order dated 9.9.1975 passed by the Collector, District Una, in land ceiling case of 535/1971 has been implemented in the revenue record as intended. For this purpose the mutations No.4437,4438,4439,4440 and 4441 dated 21.9.1987 are required to be scrutinized and if necessary reviewed in the presence of all the affected parties, and the aforesaid order is required to be implemented as passed subject to any subsequent amendment/modification by any superior authority/court. It is, therefore, ordered that the said mutations may be reviewed in the presence of all the affected parties including Shri Chain Singh who was a party to the order dated 9.9.1975 and the mutations which followed from the same. Though the petitioner has not impleaded Shri Chain Singh as a party to the present petition. I agree with the argument submitted on behalf of the respondents that Shri Chain Singh is necessary party to the proceedings and sufficient opportunity along with other affected parties must be given to him to plead his case when the mutations are reviewed and proper implementation of the land ceiling orders or any subsequent orders passed in furtherance thereto may be done in the revenue records. The revision petition is accordingly allowed. 11. Order be communicated to the parties. The record of the courts below be returned and the case file of this court be consigned to the record room after due completion.