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2013 DIGILAW 1069 (HP)

Brij Mohan Khanna v. Om Prakash

2013-12-31

NARINDER CHAUHAN

body2013
ORDER : Narinder Chauhan, Financial Commissioner This revision petition is based on the recommendations made by the Collector, Sub-Division, Nahan, Distt. Sirmaur, in case No. 03/2013, dated 25.3.2013, in an appeal filed before him by Shri Brij Mohan Khanna, under Section 14 of the H.P. Land Revenue Act, 1954 (hereinafter referred as 'the Act'), against the order dated 31.8.2012 passed by the A.C. 1st Grade (Tehsildar), Nahan in case No. 183/2012, whereby he has accepted the demarcation report given by the Local Commission appointed by him. The Collector has referred the matter to this Court for invoking powers under Section 17(4) of the Act, with his observations that the A.C. IInd Grade, Nahan, has failed to follow the instructions issued by the Financial Commissioner (Revenue), H.P., and it is a fit case to be submitted to the Financial Commissioner, H.P. for the reversal of the demarcation report. The Collector has further observed that the Hon'ble High Court of H.P. has held that demarcation to boundaries is a quasi statutory function and Collector in his supervisory jurisdiction cannot set aside the demarcation given by the A.C. IInd Grade. 2. However, before further adjudicating the matter, it needs to be pointed out at the outset that since an appeal under Section 14 of the Act, has been filed before the Collector, it should have been decided by him on merits at his own level. No recommendations can be made in appeal under Section 14, but the same can only be made by a Collector or a Commissioner to this Court under Section 17(3) of the Act while exercising jurisdiction under Section 17(2) dealing with a revision petition. Thus, the Collector has wrongly referred the matter to this Court for invoking the powers under Section 17(4) of the Act. 3. In order to appreciate the entire controversy involved in the present list, it is necessary to recapitulate the facts of the case. The facts as emerge after perusal of records are that Shri Brij Mohan Khanna, appellant before the Collector, filed an application before the A.C. 1st Grade (Tehsildar), Nahan on 3.3.2012, for appointment of a Local Commission for demarcation of land comprised in khata/khatauni No. 180/181 to 184, kita 18, area measuring 325.28 sq. meters, situated in Mohalla Miyan Ka Mandir, Nahan, Distt. meters, situated in Mohalla Miyan Ka Mandir, Nahan, Distt. Sirmaur, H.P. The A.C. 1st Grade, accepted the application on 13.3.2012, and appointed Shri Onkar Nath, (Retired) Naib-Tehsildar, as a Local Commission to demarcate the land in question, whose fee was fixed at Rs. 1000/- to be paid on the spot. Accordingly, the Local Com- missioner conducted the demarcation on 23.3.2012, in the presence of both the parties, as per the demarcation report (Page 7 and 8 of the file of the A.C. 1st Grade). 4. After receiving the demarcation report Shri Brij Mohan Khanna, filed written objections on the report of Local Commission on the grounds that the Local Commissioner did not demarcate the land as per the instructions of the Financial Commissioner and the Hon'ble High Court of H.P.; and that the respondent has encroached the land of the applicant, and in order to prepare a sketch map/tatima of the spot, the present application, was moved, but the Local Commissioner has ignored the same and obtained the signature of the applicant on blank paper. 5. The A.C. 1st Grade, after considering the objections and going through the demarcation report of the Local Commission, turned down the objections as not sustainable and accepted the aforesaid demarcation report vide order dated 31.8.2012 in file No. 183/2012. 6. Feeling aggrieved with the aforesaid order of the A.C. 1st Grade, the present appeal has been filed by Shri Brij Mohan Khanna, before the Collector, Sub-Division, Nagan, on the ground that the demarcation given by the Local Commission on 23.3.2012, was contradictory to the demarcation earlier given by the Field Kanungo on 17.1.2012; that there was a delay of one month on the part of the Local Commission to submit the demarcation report to the Tehsil, which shows mala fide on the part of the Local Commission; that in the demarcation report submitted by the Local Commission, the encroached land was shown as being 8cm which was contradictory to the statement given by the Local Commission on the spot that the encroached land was 78 x 5.5cm; that the above two demarcations were contradictory and no field maps were provided to the appellant till he preferred the appeal. Lastly, that since the demarcations were not properly done by the Revenue Officials concerned, therefore, the appellant wanted to get the said land demarcated again. 7. Lastly, that since the demarcations were not properly done by the Revenue Officials concerned, therefore, the appellant wanted to get the said land demarcated again. 7. The Collector, after hearing the parties and on going through the case file of A.C. 1st Grade, has referred the matter to this Court with his observations mentioned in para-1 supra. 8. I have heard the petitioner who is present in person today. He has requested that the recommendations made by the Id. Commissioner, I may be accepted. On the other hand, Id. vice Counsel for respondent No. 1 and the Id. D.A. (Rev) for the State, have argued that the A.C. 1st Crade, has rightly accepted the demarcation given by the Local Commission, therefore, recommendations made by the Id. Collector are required to be declined. 9. I have considered the averments advanced by both the parties, and also perused the records of the lower Courts as well as the recommendations made by the Id. Collector. On appraisal of the records, the recommendations made by the Collector cannot be accepted for the following reasons: - (I) The order of the Collector dated 25.3.2013, reveals that he has intermingled the facts and observations of two cases in the present case (i.e.) Jagmal Rana v. State of H.P. case No. 22 of 2012). (II) The observation of the Collector that the Hon'ble High Court of H.P. has held that demarcation of boundaries is a quasi statutory function and Collector in his supervisory function cannot set aside the demarcation given by the Assistant Collector, is not based on true appreciation of the facts. The ratio in case, Radha Swami Satsang Beas v. State of H.P. and another, [ILK 1934 Vol. XIII H.P. 367], is not relevant in the instant case for the reason that here an appeal has been filed before the Collector by the appellant who is aggrieved with the final order dated 31.8.2012, passed by the A.C. 1st Grade, Nahan, confirming the demarcation given by a Local Commission. Therefore, the Collector has to decide the appeal filed before him on merits in accordance with law, as pointed out at the beginning of this order. 10. Therefore, the Collector has to decide the appeal filed before him on merits in accordance with law, as pointed out at the beginning of this order. 10. While deciding the appeal on merits afresh, the Collector should keep in mind, the following points also: - (I) The appointment of a Local Commission by the A.C. 1st Grade Nahan, is against the Standing Orders of the Financial Commissioner Para 67 of the Standing Order No. 2, dealing with the issue of Commission to Revenue officials is reproduced hereunder: Para 67: Issue of Commission to Revenue Officials. - The following directions relate to issue of Commission to Revenue Officials: (i) No Revenue Court, of a grade lower than the Court of the Collector, shall issue a Commission to a Revenue Official to make a local investigation or lo a examine accounts or to make a partition of immovable properly, not paying revenue to Government, except with the previously obtained sanction of Deputy Commissioner. (ii) When a Commission is issued under hie preceding rule to any Revenue Official below the rank of Tehsildar, moderate fees may be allowed by the Court issuing the Commission if such Court is satisfied with the manner in which the Commission has been executed, and considers the services rendered sufficiently onerous to deserve remuneration. Provided that in the case of a Commission, issued by a Court subordinate to that of the Collector, no fees shall be allowed except with the approval of the Deputy Commissioner/ and of such amount as he considered appropriate. (II) It has already been held by my Id. predecessor in revision petition No. 04/20CM, decided on 23.5.2006, titled as Lt. Col. Partap Chand (Retd.) v. Mohan Krishan Kaushal, [2007 (1) SLJ (FC, HP) 617], that "president demarcations, held, are not in consonance, with the law and the proper remedy for any party who feels aggrieved for any reason what so ever, is to seek relief by filing an appeal against the demarcation order. It is only the appellate authority who can order a fresh demarcation for reasons to be clearly recorded for carrying of the same afresh." 11. In view of the above stated reasons, I am not inclined to accept the recommendations of the Collector, Sub-Division, Nahan, made in Case No. 03/2013, dated 25.3.2013. It is only the appellate authority who can order a fresh demarcation for reasons to be clearly recorded for carrying of the same afresh." 11. In view of the above stated reasons, I am not inclined to accept the recommendations of the Collector, Sub-Division, Nahan, made in Case No. 03/2013, dated 25.3.2013. Accordingly, the case is remitted back to the Collector, Sub-Division, Nahan, to decide the appeal filed before him on merits in accordance with law at his own level, keeping in view the observations here in above. 12. Announced in the open Court today the 31st December, 2013. The records of the Courts below be returned and the file of this Court be consigned to the record room after due completion.