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2014 DIGILAW 1046 (HP)

Jawahar Lal v. Padam Ram

2014-08-05

NARINDER CHAUHAN

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ORDER : Narinder Chauhan, I.A.S. The appeal under section 14 of the H P Land Revenue Act 1954, is directed against the order dated 21 4.2014, passed, by the Commissioner, Shimla Division, in Case no. 163/2011, whereby he has set aside the order dated 2112.2009, passed by the Collector, Sub-Division, Pooh, in Case No 1/2008, and remanded the case back to him with a direction to decide the case afresh after associating the parties and adhering to due procedure. 2. The impugned order of the Commissioner dated 21.4.2014, is now being assailed primarily on the grounds that it is based on surmises and conjectures and is not tenable in the eyes of law as the court below has not considered the arguments on merits of the appeal filed by the respondents; that the application under section 5 of the Limitation Act, has been decided in a cursory manner, and, therefore, the impugned order is totally illegal and wrong and not tenable in the eyes of law. That there was no ex-parte order against the respondents and in fact Shri Padam Ram, the present respondent no.1, was present and it was the present appellants who were proceeded against ex-parte by the Collector; that there is no illegality or irregularity committed by the Id. Collector while deciding appeal no 1/2008,and he has passed an elaborate and legal order with his detailed observations in paras 6 and 7 of his orders while remanding the case to the Assistant Collector. 3. I have heard the Id. Counsel for the petitioners on admission, who has reiterated the above averments made in the revision petition. Since a caveat petition has also been filed on behalf of the respondents, therefore, the Id counsel Shri Pawan Kapraite, Advocate, who was present, has also been heard. He argued that no prejudice is going to be caused to the petitioners with the remand order passed by the Id Commissioner which gives a chance to both the parties to present their case afresh before the Id Collector. He further argued that the order passed by the id. Commissioner touches the limitation aspect as well and is based on merits and should be upheld 4. Having considered the arguments advanced by the Id. He further argued that the order passed by the id. Commissioner touches the limitation aspect as well and is based on merits and should be upheld 4. Having considered the arguments advanced by the Id. counsel for both the parties, I have perused the contents of the revision petition as well as the impugned orders of the Id Commissioner and the orders dated 23.12.2009, passed by the Collector, Sub-division. Pooh in Case No. 1/2,008. A perusal of the orders passed by the Collector clearly reveals that an appeal has been filed before him against the orders passed on mutation no. 57 dated 28.3.2001, and mutation No. 81 dated 29.6.2002,by the AC. 11nd Grade, Hangrang. The issue involved in these mutations is with regard to the landed property of Smt. Chhering Chukit, who is reported to have died issue-less. On her death mutation no 57 qua her inheritance was attested by the A.C.11nd Grade, Hangrang, on 2.5.2001 in favour of Smt. Dukit, the mother of the present petitioners. Smt. Dukit had claimed herself to be the legal heir of Smt. Chhering Chukit (deceased) being her aunt (maussi). The land was originally acquired by Smt. Chhering Chukit vide mutation dated 9.10 1961 Further, on the death of Smt. Dukit the landed property in question has been mutated in the name her sons Shri Jawahar Lal and Shri Govind, the present petitioners, vide mutation no. 83, dated 29.6.2002, attested by the A.C. 11nd Grade, Hangranng. 5. While deciding the appeal, the Id. Collector, has observed that the appellants (herein respondents) have no locus standi to claim the moveable or immoveable property of late Smt. Chhering Chukit, who died issue-less, keeping in view the explicit provisions of para 8.19 of the H P. Land Records Manual read with Wazib-ul-urj (customary law). However, regarding mutation order dated 29.6.2002, the Id Collector observed that the same should have been attested at village Hango in the presence of general public as per the provisions of the Himachal Pradesh Land Records Manual, which procedure has not been adhered to because such mutation has been attested at his office at Yangthang by the A.C.11nd Grade, Hangrang. The Id. Collector, had therefore set aside the order dated 29.6.2002, passed on mutation no. The Id. Collector, had therefore set aside the order dated 29.6.2002, passed on mutation no. 81 by the A.C.11nd Grade, Hangrang and remanded the case to him for attestation of mutation as per the procedure prescribed in the H P. Land Records Manual after affording reasonable opportunity of being heard to the parties concerned. 6. The Ld. Commissioner vide his impugned orders has condoned the delay in filing the appeal before him. He has further observed that the appellants before him were condemn ed unheard which is contrary to the principle of natural justice and the orders (of the Collector) appear to be against the basic provisions of law and could have been only passed when summons/notices were properly served upon the parties. Further that ex-parte order cannot be passed on the assumption that the parties had the knowledge of hearing, rather before passing such orders, it needs to be proved on record that the parties were served notice. Therefore, the Id Commissioner, has concluded that the impugned order has been passed without proper notice to the parties which has resulted in mis-carriage of justice. It is in the background that the Id. Commissioner has set aside the order dated 23.12.2009, passed by the Collector, Sub-Division, Pooh, and remanded the case to him with the direction to decide the case afresh after associating the parties and adhering to due procedure. 7. Thus the Id. Commissioner while setting aside the order dated 23 12,2009 of the Collector 'Pooh, has given the detailed reasoning mentioning the chronological events date wise of the proceedings before the Collector, and has thereafter come to the conclusion that no proper service was effected to ensure the present of he parties and that a telephonic directions of the Presiding Officer to his staff, is no service in the eyes of law As such, I find that with the remand of the case to the Collector no prejudice is going to be caused to either of the parties. Rather, it will be open for both the parties to present their case before the Id. Rather, it will be open for both the parties to present their case before the Id. Collector on merits in a legal manner, and the Collector would decide the case afresh after giving reasonable opportunity of being heard to both the parties As such, I find no reason to interfere in the impugned orders of the Ld Commissioner, which appear to be a legal and sustainable order in the eyes of law. The revision is therefore, not admitted and dismissed in limine. 8. Announced in the open court today the 5lh August, 2014 The file of this court be consigned to the record room after due completion.