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2007 DIGILAW 8 (HP)

TARA CHAND v. STATE OF HIMACHAL PRADESH

2007-01-03

DEEPAK GUPTA, S.S.THAKUR

body2007
JUDGEMENT Per Surinder Singh, J:- The petitioner herein, has filed two civil writ petition Nos. 1111 of 2005 and 1112 of 2005 against the respondents, to quash the orders dated September 16, 2005 (Annexure-P4) in both the petitions, passed by the Financial Commissioner in Revenue Revision Nos. 36 of 2002 and 37 of 2002. 2. Since the facts of both the petitions are identical, therefore, taken up together for decision. The brief facts are as under: 3. The private respondents are admittedly the owners of the land in dispute and the petitioner has been recorded as non-occupancy tenant in the revenue record. The Assistant Collector II Grade had attested both the mutation Nos 2485 (CWP No. 1111 of 2005) and 2428 (in CWP No. 1112 of 2005) of mauza Nangal Kalan Sub Tehsil Haroli, District Una, H.P. in favour of the petitioner, conferring the proprietary rights under Section 104 (3) of the Land Reforms Act, 1972 (hereinafter to be referred as The Act), on 9.6.1989 and 21.1.1989, respectively. 4. Feeling aggrieved and dissatisfied by the said order, the respondents No.2 to 4 and 8 and also one Shri Mangat Ram had filed appeals, before the Sub Divisional Collector, Una who upheld the orders of the Assistant Collector II Grade which were further challenged in appeals, before the Additional Commissioner (Appeals), by the aforesaid persons and other co-owners which were also dismissed. Ultimately, the land owners assailed the findings of the revenue Courts below in revision before the Financial Commissioner. The Financial Commissioner vide his single order dated 16.9.2005 (Annexure-P4) passed in revenue revision Nos. 36 and 27 of 2002, set aside the orders of the revenue Courts aforesaid and in his order he clarified that his order shall not be a bar upon the parties to approach the Land Reforms Officer concerned to get the status of petitioner herein, adjudicated upon. 5.Having felt aggrieved, the petitioner herein, has assailed the impugned orders Annexure-P4 passed by the Financial Commissioner by filing these separate writ petitions, as being factually and legally incorrect and alleged that the Financial Commissioner has taken a parochial approach to rule 28 of the "H.P. Tenancy and Land Reforms Rules, 1975", (hereinafter referred as "the rules") and that the conferment of proprietary rights on the petitioner, being non-occupancy tenant was automatic. The harmonious reading of rules 27 and 28 clearly envisaged that the proprietary rights with respect to the land in dispute stand conferred on the tenants as per the provisions of Section 104 (3) of the Act. Thus, there was no occasion for the Financial Commissioner to read the provisions of rule 28 in a whimsical manner. Precisely, it is contended that there was misapplication of mind to the Act and the rules, by the Financial Commissioner which culminated into passing of the wrong orders and the law did not require the tenant to approach the Land Reforms officer to get his status adjudicated upon, when his status stood already recorded in the Jamabandi as a non-occupancy tenant. In case of any dispute, it was for the landowners to approach the right Forum and the statutory onus is on them to prove that the petitioner was not a tenant. Therefore, the findings of the Financial Commissioner (Appeals) were incorrect, hence sought the indulgence of this Court. 6. The private respondents have filed the reply wherein they have denied the status of the petitioner as a non-occupancy tenant. They pleaded that the name of the petitioners was incorporated in collusion with the revenue staff and he was never their tenant as alleged. Further, that the Assistant Collector II grade had wrongly and illegally attested the mutation in fawour of the petitioner without any notice to them. Thus they were condemned upheard. It is also contended that Smt. Kaushalaya Devi is a widow and there is a statutory bar to confer the proprietary right qua her share, therefore, the attestation of mutations were incorrect, without jurisdiction, violative of principles of natural justice and non-est. 7. We have heard the learned counsel for the parties and have meticulously and judiciously scanned the record 8. Shri Subhash Sharma, learned counsel for the petitioner, forcefully argued that in the instant case the petitioner was duly recorded in the Jamabandi as a non-occupancy tenant against payment of rent, therefore, conferment of the proprietary rights as per the provisions of Section 104 (3) of the H.P. Tenancy and Land Reforms Act, 1973 was automatic. The procedure for attesting the mutation is given in Rules 27 and 28 of the Rules framed under the aforesaid Act which were complied with. The procedure for attesting the mutation is given in Rules 27 and 28 of the Rules framed under the aforesaid Act which were complied with. The attestation of mutation remained only a formality, therefore, the Assistant Collector 2nd Grade who is a Revenue Officer as per the provisions of Section 54 of the Act, was competent to accept and attest the mutation. If the private respondents had felt jamabandi, it was for them to approach the Land Reforms officer under the appropriate provisions to settle the dispute but it was not open for the Financial Commissioner to have passed the impugned order and that too against the spirit of the provisions of Section 104 (4) of the Act. While supporting the orders passed by the Assistant Collector II Grade and upheld by the Sub Divisional Collector, Una and the Additional Commissioner in appeal, prayed for setting aside the order (Annexure-P4) passed by the Financial Commissioner in revision petition. 9. Contra, Shri H.K. Bhardwaj, learned counsel for the respondents submitted that the orders of the A.G. II Grade suffered from many illegalities and irregularities. Firstly, the land owners were not summoned as per the provisions of Section 71 of the Act at the time of mutation and, secondly there was no occasion for them to agitate the matter regarding the jurisdiction of A.C. II Grade or to agitate the status of the petitioner as the respondents were not granted any opportunity of being heard. They were condemned unheard. It is further urged that neither the Sub Divisional Collector nor the Additional Commissioner had appreciated the above legal and factual position, therefore, the orders passed in appeal by them were wrong, illegal and the private respondents were constrained to file the revision petitions before the F.C. (Appeals) whereby the orders of the Revenue Officers were rightly set aside, being wrong and illegal. To buttress his arguments, he was cited Besru-v-Shibu, 1999 (1) Sim.L.C. 343 which fully covers the matter, and prayed for the dismissal of the petitions. 10.We have given our thoughtful considerations to the rival contentions of the parties and have examined the facts and legal position as propounded before us. 11. Undisputedly, the petitioner has been recorded as non-occupancy tenant in the revenue record though his status as such has been disputed by the private respondents who are the recorded land owners. 10.We have given our thoughtful considerations to the rival contentions of the parties and have examined the facts and legal position as propounded before us. 11. Undisputedly, the petitioner has been recorded as non-occupancy tenant in the revenue record though his status as such has been disputed by the private respondents who are the recorded land owners. Admittedly, both these mutations have been accepted and attested by the Assistant Collector II Grade behind the back of the land owners, i.e. the private respondents. It cannot be deciphered from the mutations, what mode for the service of the private respondents was adopted by the said Revenue Officer. Though he has recorded in the disputed mutations that despite intimations, they were not present but it is not known what document or material was before him to come to such a conclusion, whirrs, Section 70 of the Act lays down powers of the Revenue Officer or Revenue Court to summon the persons which provision can usefully quoted as under: - "70. Power of Revenue Officer or Revenue Courts to summon persons (1) A Revenue Officer or Revenue Court may summon any person whose attendance he or it considers necessary for the purpose of any application, suit, or other business before him or it as a Revenue Officer or Revenue Court. (2) A person so summoned shall be bound to appear to the time and place mentioned in the summons in person or, if the summons so allows, by his recognized agent or legal practitioner. (3) The person attending in obedience to the summons shall be bound to state the truth upon any matter respecting which he is examined or makes statements, and to produce such documents and other things relating to any such matter as the Revenue Officer or Revenue Court may require." (Emphasis ours) 12.The perusal of the above provision clearly indicates, the Revenue Officer may summon any persons whose presence he considers necessary for the purpose of any application or other business before him as such officer. Whereas rule 28 clearly provides that the Revenue Officer shall attest the mutation conferring the proprietary rights, though automatic but in the presence of the parties, the reason is obvious. Whereas rule 28 clearly provides that the Revenue Officer shall attest the mutation conferring the proprietary rights, though automatic but in the presence of the parties, the reason is obvious. In the instant case, The Assistant Collector llnd Grade had completed this formality only by saying that the respondents were not present despite intimation to them and proceeded to attest the mutations in their absence without complying with the provisions of Section 70 and 71 read with rule 28 ibid. Thus the procedure adopted was not only violative of the principles of natural justice but is also held against law and cannot be allowed to sustain. 13. Now the next question arises whether the Assistant Collector II Grade is competent to accept and attest the mutation under Section 104 (3) of the Act? Our answer is "No" Because section 93 of the Act makes the position very clear which can be quoted with benefit as under: "93. Appointment of Land Reforms Officers- (1) As soon as may be after the commencement of this Act, the State Government shall appoint Land Reforms Officers, who shall be Revenue Officers of the rank of Assistant Collector of the First Grade, to carry out the purposes of this Chapter and Chapter X. (2) The officers appointed under sub-section (1) shall have the powers of a Civil Court under the Civil Procedure Code, 1908, (5 of* 1908) for the purpose of administration oaths, taking evidence and enforcing the attendance of witnesses and compelling the production of documents and material objects. (3)The officers appointed under sub-section (1) shall be guided by such instructions consistent with the provisions of this Act, as the State Government may from time to time issue" (Emphasis ours) 14. The above provision clearly applies to the acquisition of proprietary rights by the tenants. This chapter is self exploit and comprehensive. Further it is also evident from Section 93 ibid that for the purposes of this Chapter, i.e. Chapter X, the State Government shall appoint the Revenue Officer of the rank of Assistant Collector II Grade. Section 104 read with rules 27 to 29 inter alia, as already said, deals with the conferment of the proprietary rights on the non-occupancy tenants, attestation of mutations and settlement of disputes etc. Section 104 read with rules 27 to 29 inter alia, as already said, deals with the conferment of the proprietary rights on the non-occupancy tenants, attestation of mutations and settlement of disputes etc. Vide notification dated 20lh may, 1975 all the Tehsildar have been appointed as the Land Reforms Officers and all the Land Reforms Officers are the A.C. 1st Grade Chapter-X of the Act falls within the scope and jurisdiction of the Land Reforms officers who is also Assistant Collector 1st Grade, whether it relates to the attestation of mutation of proprietary rights or settle the dispute interse the landlord and the tenant. Therefore, the Assistant Collector llnd Grade in neither competent to attest the mutation nor settle their dispute. Section 56 of the Act only provides the classes of the Revenue Officers under the Act. 15. On the strength of the above legal provisions, we hold that the matter in this case was dealt by the A.C. II grade without jurisdiction and quite contrary to the provision of the Act and rules. We fully endorse the view taken by the learned Single Judge of this Court in Besru-v-Shibu 1991 (1) Sim.L.C. 343, which has correctly interpreted the provisions of the Act and the Rules, on the facts akin to this case. The ratio descendi fully applied to this case. Therefore, the mutations in question are void abinitio 16. For the reasons aforesaid, we do not find anything worth interference in the orders Annexure-P4 (in both the petitions) passed by the Financial Commissioner (Appeals) in the revenue revision No.36 and 37 of 2002 except the clarification/direction, given to the parties to approach the Land Reforms Officer concerned to get the status of the petitioner adjudicated upon. This part of the order is wrong and illegal being contrary to law. However, the order of Financial Commissioner (Appeals) passed in revenue revision petitions is partly affirmed. 17. Consequent upon the above discussion, findings and reason therefor, we hereby direct the concerned Land Reforms Officer, exercising powers of Assistant Collector 1st Grade, to decide the dispute inter-se the petitioner and the landowners in accordance with Chapter-X of the Act and rules applicable thereto within a period of six months from toady. 18. Both the petitions are disposed of accordingly with no orders as to costs. CMP No. 1126 in CWP No. 1111/2005 CMP No. 1128of2006inCWPNo. 1112/2005 19. 18. Both the petitions are disposed of accordingly with no orders as to costs. CMP No. 1126 in CWP No. 1111/2005 CMP No. 1128of2006inCWPNo. 1112/2005 19. In view of the disposal of the main writ petitions, these applications do not survive and stands disposed of. Interim order dated 4-11-2005 is vacated.