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2014 DIGILAW 136 (HP)

Sanjeev Kumar v. Municipal Corporation, Shimla

2014-02-28

NARINDER CHAUHAN

body2014
ORDER : Narinder Chauhan, I.A.S. This appeal under section 14 of the H P Land Revenue Act, 1954, in short the Act', is directed against the order dated 21.12.2009, passed by the Commissioner, Shimla Division, in Appeal no 272/2005, whereby the appeal filed by the present respondent (MC Shimla) has been accepted and the order of the Collector Settlement, dated 25.6.2005, in Case no 233/2005, has been set aside. 2 Brief facts of the case are that present appellant Shri Sanjeev Kumar and proforma respondent no 1 Shri Pardeep Kumar, jointly filed an application before the Settlement Collector, Shimla on 27.4.2004. for correction of revenue record prepared during the settlement operations in respect of khasra no. 680 (old), corresponding 10 new khasra nos. 1431, 1432, 1433.1436 and also khasra no 423/679A (old), situated in Krishna Nagar, Shimla The Settlement Collector got the matter inquired into through his field agency The concerned Settlement Kanungo and the Naib-Tahsildar (Settlement) submitted their detailed reports endorsing the corrections sought for in the application. The Settlement Collector, after hearing the applicants and considering the above reports of his field agency, ordered necessary corrections in the revenue record prepared during the settlement operations as per details mentioned in his order dated 25.6.2005. 3. Feeling aggrieved and dis-satisfied with the above orders dated 25.6.2005 of the Settlement Collector, the Municipal Corporation, through its Commissioner, filed an appeal before the Divisional Commissioner Shimla Division, on the grounds that the order of the lower court was against the mandatory provisions of law as neither the appellant (C.C) was summoned nor heard while passing the order, that the Settlement Collector was not having any jurisdiction to decide the disputed question of title, the remedy available to the applicant was to approach the Civil Court whereas the lower court has passed the impugned order and has wrongly ordered to delete the land measuring 59.91 sq meters possessed by the appellant (M.C) in favour of respondent. 4. The Id. Commissioner, after hearing the parties and on perusal of the case file of the trial court, has set aside the above orders of the Settlement Collector, vide the impugned orders on the .grounds that 'It was incumbent upon the lower court to ensure presence of the Corporation particularly keeping view the revenue entries wherein the possession of the Municipal Corporation is close to present its case. It is also correct that any correction of old entries falls within the jurisdiction of the civil courts as the correction is to be carried out by the Settlement Officer are only with respect to the settlement record as per the provisions of the Settlement Manual. Hence, the order of the lower court being arrived of without giving opportunity to the appellant and ultra virus to the settlement manual are set aside and it is directed that pre-settlement entries of the suit land be restored'. 5. Dis-satisfied with the orders of the Id Commissioner, Shimla Division, the present appeal has been filed before this court by the appellant on the grounds, that the court below has wrongly held that the respondent was not served before the impugned order was passed by the; Settlement Collector That the observation of the Court below that the name and official designation of the respondent on whom the summons were served is suspicious, is against record since the service on the Corporation is to be effected through an officer by designation and not by name Further, that the court below has erred in concluding that the revenue entries could be corrected by a civil court only. According to the appellant, the Settlement Collector in the given circumstances was fully competent to decide the matter. Further, that besides the appellant and the proforma respondent no 1, there were other persons also in whose favour the order were passed by the Settlement Collector, viz-a-viz. Miss Anshul and Miss Puja daughters and Shri Kapil Joshi. son and Smt. Vamta Joshi widow of Shri Parveen Kumar, and all these persons were necessary party in the case but were not impleaded as such in appeal before the Commissioner and therefore, the appeal before the Commissioner was not maintainable. Lastly, that the Id. Commissioner by setting aside the order of the Settlement Collector has closed the matter for ever, even though if the order was liable to be set aside in the opinion of the Commissioner then he was supposed to remand the case to the Collector for deciding the same afresh after hearing the parties i.e. respondent no 1 and the appellant. 6. I have heard the averments made by the appellant in person and the arguments advanced by the Id Counsel for the respondent and the proforma respondents. 7. The Id Counsel for the proforma respondent no.1. 6. I have heard the averments made by the appellant in person and the arguments advanced by the Id Counsel for the respondent and the proforma respondents. 7. The Id Counsel for the proforma respondent no.1. Shri Sidharth Sanwaria Advocate argued that the predecessor-m-interest of the appellant and the proforma respondent no. 1. purchased the property in 1963 in an auction Thereafter certain errors were made by the revenue staff, viz-a-viz, area measuring 70 sq yards An application was filed before the Settlement Collector for correction and amendment of the revenue record which was got enquired through the field agencies The Id Counsel further argued that the report submitted by the Naib-Tahsildar to the Settlement Collector is in their favour and the Settlement Collector accordingly ordered necessary corrections However, the Municipal Corporation thereafter engaged in frivolous litigation The M C approached the Id Divisional Commissioner, praying for relief, and the Id Commissioner condoned the limitation, and passed the impugned orders which are unsustainable and against law and deserve to be set aside. 8. On the other hand, the Id Counsel for the respondent Municipal Corporation. Shri Pawan Kapraite. Advocate, argued that it is a civil court case and the remedy for the appellant lies under section 46 of the H P Land Revenue Act He further asserted that the predecessor-in-interest of the appellant and proforma respondent no 1, purchased only the house whereas correction as ordered by the Settlement Collector involve other land also which is owned by the State Govt and possessed by the M C. Shimla. 9. In rebuttal the Id Counsel for the appellant and proforma respondent no 1 stated that errors can be settled in Settlement Manual and are within the ambit of Settlement Manual. 10. I have considered the arguments advanced by the Id. Counsel for both the parties and also perused the record of the courts below On appraisal of the case file of the Settlement Collector, it is evident that the Settlement Collector has ordered the corrections on the application of the appellant and proforma respondent no. 10. I have considered the arguments advanced by the Id. Counsel for both the parties and also perused the record of the courts below On appraisal of the case file of the Settlement Collector, it is evident that the Settlement Collector has ordered the corrections on the application of the appellant and proforma respondent no. 1 as per his detailed orders dated 25.6.2005, on the basis of the reports received from the field staff, viz-a-viz, Kanungo (Settlement) and the Naib-Tahsildar (Settlement) of his Correction Branch Both these authorities have submitted their detailed reports, which are available at page 14 to 17 of the file, on the basis of spot position and after verification of old and the new records prepared during the settlement operations. 11. The ambit of corrections that can be carried out by a Revenue Officer, is mentioned under section 37,38 and 38A of the H P Land Revenue Act For the sake of convenience here, it would be appropriate to be re-produce, particularly section 35A of the Act which is relevant in the instant case. Section 38A Correction of clerical errors Clerical or arithmetic mistake or an error apparent an the face of the record, arising from any accidental or omission, found in the record-of-rights of an estate or sub-estate during the making of, or special revision or any record-of-rights or documents mentioned in sub-section (2) of section 32 of this Act, may either of his own motion or on the application of any of the parties, be corrected by the Collector, making, or specially revising, the record-of-rights. 12. Thus, in view of the above provisions of law the Settlement Collector was competent to order such correction as were brought to his notice during the settlement operations in the instant case the fact of purchase of house no 112 at Krishan Nagar. Shimla through a sale deed no. 50. dated 15.10.1963. through official liquidation on the orders of the High Court and purchase of khasra No 423/679/A in Ladhakhi Mohalla, measuring 70 sq yards and 1 foot through sale deed no 74 dated 10.12.1953 by Shri Chiranjit Lal Joshi, the predecessor-in-interest of the present appellant and proforma respondent no.1. Shimla through a sale deed no. 50. dated 15.10.1963. through official liquidation on the orders of the High Court and purchase of khasra No 423/679/A in Ladhakhi Mohalla, measuring 70 sq yards and 1 foot through sale deed no 74 dated 10.12.1953 by Shri Chiranjit Lal Joshi, the predecessor-in-interest of the present appellant and proforma respondent no.1. is proved and not disputed by any of the parties Therefore, as per the appeal referred provisions of the Act the Settlement Collector was legally competent and it was within his jurisdiction to order such corrections of errors which were apparent on the face of the record and brought to his notice by the applicants (present appellant and proforma respondent no 1.), during the settlement operations The observations of the Id Commissioner qua that extent, is not correct and not sustainable in the eyes of law. and is therefore, set aside. 13. Though, a reference made by the Id Commissioner in the impugned orders qua the summons issued by the lower court at page 57 of the file, purported to have been issued to the Commissioner, are issued by the A.C. 11nd Grade (Settlement) for presence in his court on 7.3.2005. and these are not summons issued by the Settlement Collector for the presence in the court. Hence, the observation of the Id Commissioner qua the same are not correct. 14. However from the letter issued by the Settlement Collector to the Commissioner Municipal Corporation dated 7.6.2005, available at page 52 of the file, whereby he has been requested to direct his subordinate competent officer/official to be present in the court on 25.6.2005, can be construed to be a summon issued by a court or not, is a separate issue and requires proper adjudication Neither the orders of the Settlement Collector dated 25.6.2005. nor the zimini order of the above date of the file makes any mention of the service of the respondent Municipal Corporation nor any ex-parte orders appear to have been passed against them by the Settlement Collector Therefore, this service cannot be construed to be a proper service in the eyes of law From this which it can be safely inferred that proper opportunity of being heard has not been provided to the respondent Municipal Corporation, which is tantamount to denial of principle of natural justice to the affected party. 15. 15. Keeping in view the fact that proper opportunity of being heard has not been afforded by the Settlement Collector to the respondent, coupled with the fact that the land involved in the correction is recorded in the revenue record in the possession of the Municipal Corporation, the matter is required to be remitted to him qua this aspect only The Settlement Collector, is therefore directed to give adequate opportunity to the respondent of being heard before passing any final order on the present correction application. 16. Orders be communicated to the parties. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.