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2014 DIGILAW 726 (HP)

Udham Singh v. Director of Consolidation

2014-06-05

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge This Letters Patent Appeal is directed against the judgment passed by the learned Single Judge on 9.4.2012 in CWP No. 1706 of 2007 whereby the writ petition filed by the appellant was dismissed. 2. The facts of the case may be noticed: the respondents No. 2 and 3 had filed a petition under Section 54 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 claiming therein that the land in khasra No. 973/1 old and 1181 new which was adjacent to the road and had been under the possession of the respondents No. 2 and 3 had been given to the respondents No. 2 and 3 by the Consolidation Officer, Hamirpur vide his order dated 20.9.1989, but the Aks Shajra Tatima for this land was wrongly prepared by the field staff and thereby this land was shown away from the road. The respondents No. 2 and 3 requested that the land comprised in khasra No. 973/1 old may be allotted to them after preparing fresh Aks Shajra Tatima. This plea of respondents No. 2 and 3 was accepted by the Director, Consolidation of Holdings (for short ‘Director’) by allowing the revision petition and the following amendments were ordered to be incorporated in revenue record: Area Excluded Area included No. Kh. No. Kh S. Name of owner Old New Area Old New Area No. 1. Udham Singh son of 1181 1452 0-01-26 1182 1449 0-00-63 Kanshi, Khewat No. 2 Min min 1182 1450/1 0-00-64 Min Kita-2 0-01-27 Misal Haquiat 2005-06 Bandobast Jadid 2. Ashok Kumar son & 1182 1449 0-00-63 1181 1452 0-01-26 Leela Devi, widow of min min Narpat equal share 1182 1450/ 0-00-64 Khewat No. 3 Misal min 1 Haquiat 2005-06 Kita-2 0-01-27 Bandobast Jadid 3. At this stage, it is relevant to observe here that before the Director neither the appellant nor his counsel was present on the date of hearing and in fact some other counsel appeared as vice counsel before the Director. This aspect of the matter has been dealt with by the Director in the following manner: “The brief facts of the case are that a revision petition bearing No. 55/2004 was decided on 9.5.2005 by my predecessor-in-interest which was filed by the present petitioner u/s 54 of the H. P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. This aspect of the matter has been dealt with by the Director in the following manner: “The brief facts of the case are that a revision petition bearing No. 55/2004 was decided on 9.5.2005 by my predecessor-in-interest which was filed by the present petitioner u/s 54 of the H. P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. Against this order the present petitioner had filed CWP bearing No. 1082/2005 before the Hon’ble High Court of Himachal Pradesh and the Hon’ble High Court after setting aside the impugned order dated 9.5.2005 remanded the case back to this Court with the direction that the objections be decided afresh after hearing both the parties within 3 months positively. Both the parties were also directed to appear before this Court on 14.6.2007. On 14.6.2007 Sh. K.S.Banial counsel for the petitioner was present but none was present on behalf of the respondent. Later on the counsel for the respondent Sh. J.R.Thakur came present. He was informed about the next date of hearing i.e. 6.7.2007. On 6.7.2007 Sh. K.S.Banial counsel for the petitioner and Sh. R.S.Kanwar counsel for the respondent vice Sh. J.R.Thakur was present. Sh. J.R. Thakur, original counsel for respondent was not present despite knowledge of date for hearing.” 4. Despite the order having been passed by the Director on merits of the case, the appellant questioned the said order only on the ground of the procedure adopted by the Director inasmuch as the appellant claimed that the entire proceedings had been conducted behind his back and without affording an opportunity of hearing. No where in the entire petition did the appellant mention as to how and in what manner the order passed by the Director was in any manner wrong or illegal, save and except it was claimed that: (a) That the impugned order has been passed arbitrarily, wrongly and illegally and as such the same is not sustainable in the eyes of law. (b) That the case has been disposed of in an undue haste manner without affording opportunity of hearing to the petitioner/counsel. (b) That the case has been disposed of in an undue haste manner without affording opportunity of hearing to the petitioner/counsel. (c) That the respondent No.1 has not decided the revision petition of the respondents/petitioners but has decided the objections of the respondents/petitioners which were initially decided by the Consolidation Officer on 30.9.1989, which aspect of the controversy has not been considered at all and on this ground alone the petition deserves to be allowed and case deserves to be remanded to him.” 5. It is further not disputed that the learned Single Judge not only dealt with the so called illegality of the procedure adopted by the Director as had been questioned by the appellant herein, but even dealt with the case on the merits and only thereafter dismissed the petition preferred by the appellant by holding that there was no denial of opportunity to the appellant and even on merits the order passed by the Director was correct. 6. Surprisingly, even before this Court the illegality of the order passed by the learned Single Judge in so far as it relates to the merits of the case have not been questioned and the appellant has only questioned the procedure adopted by the Director in passing the order allegedly behind the back of the appellant. Only two grounds have been raised in the memorandum of appeal assailing the findings recorded by the learned Single Judge, which are as follows: “10. That the learned Single Judge has erred in holding that the respondent No.1 has heard both the parties and thereafter passed a speaking and detailed order without any basis. Since the vice counsel did not have the case file of the petitioner since short date was to be obtained for arguments as the original counsel was out of station due to personal work as mentioned hereinabove. The respondent No.1 has heard only the counsel for the respondents 2 and 3 only as will appear from the order passed by the lower authority that is respondent No.1. 11. The respondent No.1 has heard only the counsel for the respondents 2 and 3 only as will appear from the order passed by the lower authority that is respondent No.1. 11. That the judgment passed by the learned Single Judge vide Annexure P-1 will show that the same has been passed without considering the submission made by the counsel of the petitioner that petitioner was not heard by the respondent No.1 and gross injustice has been caused to the petitioner and as such the impugned judgment requires reconsideration by this Hon’ble Court in the interest of justice.” The other grounds again relate to the procedure adopted by the Director in deciding the case behind the back of the appellant. 7. Therefore, it is absolutely clear that the appellant in fact has not questioned the judgment of the learned Single Judge whereby he has rejected the claim of the appellant on merits. In case the appellant was really serious to question the order passed by the Director, then it was imperative that he should have assailed the correctness of the order on merits and could not have confined his grounds to the so called procedural irregularity. Not only this, it was incumbent upon the appellant to show that on account of his having not been heard before the Director, not only prejudice had been caused to him but thereafter even the judgment rendered by the learned Single Judge was in any manner legally or factually wrong because admittedly he was given a full hearing before the learned Single Judge. 8. Now, in case the order passed by the learned Single Judge is seen, the learned Single Judge has given clear, cogent and convincing reasons for rejecting the claim of the appellant. The findings recorded by the learned writ court affirming order of the Director are pure findings of fact which cannot be lightly interfered with by this Court in exercise of jurisdiction under Letters Patent Appeal. Moreover, there are no strong reasons for doing so. Therefore, this Court would be slow to disturb concurrent findings of fact. (Refer : Asha Devi v. Dukhi Sao (1974) 2 SCC 492 , Umabai v. Nilkanth Dhondiba Chavan (2005) 6 SCC 243 and T.K.Mohammed Abubucker (dead) through LRs and others v. P.S.M. Ahamed Abdul Khader and others (2009) 14 SCC 224 ). 9. Therefore, this Court would be slow to disturb concurrent findings of fact. (Refer : Asha Devi v. Dukhi Sao (1974) 2 SCC 492 , Umabai v. Nilkanth Dhondiba Chavan (2005) 6 SCC 243 and T.K.Mohammed Abubucker (dead) through LRs and others v. P.S.M. Ahamed Abdul Khader and others (2009) 14 SCC 224 ). 9. In view of the aforesaid discussion, we find no merit in the appeal and the same is accordingly dismissed and the judgment dated 9.4.2012 passed by the learned Single Judge in CWP No. 1706 of 2007 is affirmed. The parties are left to bear their own costs. The pending application, if any, is also disposed of.