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2014 DIGILAW 243 (HP)

Promila Devi v. Rajiv Kumar

2014-03-21

TARUN SHRIDHAR

body2014
ORDER : Tarun Shridhar, Financial Commissioner This revision petition under Section 17 of the H.P. Land Revenue Act, is directed against the order dated 31.5.2010, passed by the Commissioner, Mandi division, in Case No. 236/ 2010, whereby the Id. Commissioner has accepted the appeal of the present respondents No. 1 to 5 and remanded the case to the Settlement Collector, Kangra, for fresh decision. 2. Briefly stated the facts of the case are that Smt. Promila Devi, herein petitioner, had filed an application before the Settlement Collector, Kangra, for correction of dimensions (meterkans) of new khasra Nos. 264, 266, 269, . 270, 274, 424, 229, 229/1, 230, 230/1, 231, 176,177, 265, 424/1, 275, 277 and 296, situated in village Dhabriana, Tehsil Barsar, Distt. Hamirpur. The Settlement Collector enquired into the matter through his field agency and on receipt of their report and after its perusal, vide order dated 25.11.2009, passed in Misal No. 603/08/SO, he allowed the necessary corrections in the record of rights, as proposed the Field Kanungo and Naib-Tehsildar (Settlement). 3. Feeling aggrieved by this order of the Settlement Collector, dated 25.11.2009, Shri Rajeev Kumar and others, herein, respondents No. 11 to 5. filed an appeal before the Commissioner, Mandi division, who has accepted the appeal vide the impugned order and remanded the case to the Settlement Collector for fresh decision, with a direction that a reasonable opportunity of being heard be afforded to both the parties. 4. Dissatisfied with this remand order of the Commissioner, Smt. Promila Devi, has filed the present revision petition before this Court on the grounds that the impugned order has been passed behind her back and she has been condemned unheard; that no notice was given to her before passing the aforesaid order as the Id. Commissioner never summoned the petitioner and as such the impugned order is against the principle of natural justice; that the Id. Commissioner during appeal has miserably failed to pass a speaking, self explanatory and judicious order and the conclusion drawn for final verdict is totally based on surmises and conjunctures in as much as the order is silent on the fact as to how the delay in filing the appeal has been condoned. Commissioner during appeal has miserably failed to pass a speaking, self explanatory and judicious order and the conclusion drawn for final verdict is totally based on surmises and conjunctures in as much as the order is silent on the fact as to how the delay in filing the appeal has been condoned. Lastly, it has been contended that the whole approach of the Commissioner is radically wrong, illegal and misconceived and, therefore, the impugned order is against the provisions of law and liable to be set aside. 5. The Ld. Counsel for the petitioner argued that the Ld. Commissioner, has passed the order dated 31.5.2010, on the first hearing of the appeal without issuing any notice to the respondents, (herein petitioners). He further averred that the appeal before him against the order passed by the Settlement Collector dated 25.11.2009, was filed after a period of more than six months but no order with regard to condonation of delay has been passed by the Ld. Commissioner. 6. On the other hand, the Id. vice Counsel for the respondents argued that the Settlement Collector, Kangra Division, has passed the order dated 25.11.2009, in the absence of the appellants (herein respondents), therefore, the appeal before the Id. Commissioner was filed after getting knowledge of the same and after procuring copy of the order. The Id, Counsel, therefore, averred that the appeal before the Commissioner was within limitation from the date of knowledge. She further argued that since valuable rights of the appellants have been affected by the order passed by the Settlement Collector which order has been passed without affording them any opportunity, therefore, the Id. Commissioner, prima facie, seeing this basic infirmity in the order has rightly set aside the illegal and unsustainable order passed by the Settlement Collector and remanded the case to him for fresh decision, after affording reasonable opportunity of being heard to both the parties. 7. I have considered the arguments advanced by the Id. Counsels for both the parties and also perused the record of the Courts below. The case file of the Settlement Collector clearly discloses that he has passed the order dated 25.11.2009, On the correction application of Smt. Promila Devi merely on the basis of reports received from the field staff. At no stage, the affected parties appears to have been summoned, much less given an opportunity of being heard. My Id. The case file of the Settlement Collector clearly discloses that he has passed the order dated 25.11.2009, On the correction application of Smt. Promila Devi merely on the basis of reports received from the field staff. At no stage, the affected parties appears to have been summoned, much less given an opportunity of being heard. My Id. predecessor has already held in case Jagat Ram v. Udham Singh, Latest LJ, 2007 (H.P.), 381, "the Settlement Collector must hear the party at the time of making correction of revenue entry and he can not act on report of field agency alone". This finding of Id. Financial Commissioner (Appeals) has also been followed by successive Financial Commissioners in their various orders and this has, therefore, almost become a settled law. In the light of this, the order of the Settlement Collector is not sustainable in the eyes of law and was required to be set aside in appeal before the Commissioner. 8. But while setting aside the order of the Settlement Collector, assailed in appeal, the Id. Commissioner, has also himself not followed the principle of audi altnun partem by affording opportunity of being heard to the present petitioner and appears to have passed the impugned order in a haste on the first hearing of the appeal itself at the time of its admission. Hence, the impugned order of the Id. Commissioner, also does not stand the scrutiny of law and, therefore, deserves to be set aside. 9. In view of the foregoing reasons, both the orders passed by the Courts below are set aside and the case is remanded to the Settlement Collector, Kangra at Dharamshala, for fresh decision after affording reasonable opportunity of being heard to all the affected parties. 10. Announced in open Court today the 21st March, 2014 at Hamirpur. The records of the Courts below be returned and the file of this Court be consigned to the record room after due completion.