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2016 DIGILAW 1144 (HP)

Sada Nand v. Financial Commissioner (Appeals)

2016-06-23

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. The present writ petition has been filed praying for the following relilefs:- “(i) That the impugned order passed by the Financial Commissioner (Appeals) dated 18.4.2006 (Annexure P-3), order dated 5.12.2001 passed by learned Addl. Deputy Commissioner, Bilaspur exercising powers of Commissioner (Annexure P-2) and the order dated 25.5.1992 passed by the Collector, Sub Division, Ghumarwin contained Annexure P-1, may kindly be set aside and quashed. (ii) That the orders dated 18.8.1989 passed by the learned A.C. IInd Grade, Ghumarwin may kindly be upheld. (iii) The respondent may kindly be directed to produce entire record pertaining to present case. (iv) Any other or further order as this Hon’ble Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner and against the respondents and the present civil writ petition may kindly be allowed with costs throughout. 2. The case of the petitioner is that he alongwith proforma respondents was recorded as owner of the land in dispute and one Smt. Janki was recorded as occupancy tenant under them. Said Smt. Janki was conferred proprietary rights over the land in dispute under Section 94 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and the mutation was also attested in that regard in her favour by the Assistant Collector IInd Grade on 23.07.1975. Janki died prior to the attestation of mutation in her favour. The petitioner moved an application before the Land Reforms Officer, Ghumarwin, for resumption of land, which application was dismissed on 29.02.1976. 3. The said order was challenged by way of appeal before District Collector, Bilaspur, which appeal was dismissed. Said decision was challenged before Divisional Commissioner, Shimla Division, who vide order dated 12.02.1988 set aside the order of mutation passed by the Assistant Collector IInd Grade dated 23.07.1976. The case was remanded back for fresh decision in the matter by the Divisional Commissioner. Thereafter, mutation was again attested in obedience to the order passed by the Divisional Commissioner by the Assistant Collector IInd Grade on 18.08.1989. 4. This order was challenged by way of appeal by respondents No. 1 to 6 before Collector, Sub Division, Ghumarwin. The case was remanded back for fresh decision in the matter by the Divisional Commissioner. Thereafter, mutation was again attested in obedience to the order passed by the Divisional Commissioner by the Assistant Collector IInd Grade on 18.08.1989. 4. This order was challenged by way of appeal by respondents No. 1 to 6 before Collector, Sub Division, Ghumarwin. The said authority quashed order dated 18.08.1989 and again remanded the case to the Assistant Collector IInd Grade with the direction that the mutation be attested afresh after making an inquiry under Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, (hereinafter referred to as the Act). Order passed by the Collector, Sub Division, Ghumarwin, is dated 25.05.1992. 5. Said order was challenged by the petitioner by way of appeal under Section 14 of the Himachal Pradesh Tenancy and Land Reforms Act before the Additional Deputy Commissioner, Bilaspur. The appeal of the petitioner was dismissed by the Additional Deputy Commissioner, Bilaspur, vide order dated 05.12.2001. It was held by the said authority while upholding the order passed by the Collector that the order dated 24.02.1989 passed by the Assistant Collector IInd Grade was not sustainable in law and had been rightly set aside. 6. This order was challenged by the petitioner by way of revision petition under Section 17 of the Himachal Pradesh Tenancy and Land Reforms Act before the Financial Commissioner (Appeals) to the Government of Himachal Pradesh (respondent No. 1). Respondent No. 1 dismissed the revision petition on 18.04.2006 by upholding the order passed by the Additional Deputy Commissioner, Bilaspur. 7. Mr. Neel Kamal Sharma, learned counsel for the petitioner has argued that impugned orders i.e. the orders passed by the Collector, Additional Deputy Commissioner and Financial Commissioner (Appeals) were not sustainable in the eyes of law as the findings returned were not borne out from the record but were based on surmises. 8. 7. Mr. Neel Kamal Sharma, learned counsel for the petitioner has argued that impugned orders i.e. the orders passed by the Collector, Additional Deputy Commissioner and Financial Commissioner (Appeals) were not sustainable in the eyes of law as the findings returned were not borne out from the record but were based on surmises. 8. Learned counsel for the petitioner submitted that though various grounds have been taken in the writ petition but he would not be challenging the validity of the impugned orders on any other ground except the fact that authorities below have gravely erred in not appreciating that the Collector, Sub Division, Ghumarwin, had erred in setting aside the order of attestation of mutation passed by the Assistant Collector IInd Grade on the ground that before passing the said order no inquiry as envisaged under Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act. No other ground was urged by the learned counsel for the petitioner to challenge the impugned orders. 9. No reply has been filed to the writ petition by the respondents and when judgment was reserved on 17.06.2016, it was jointly contended by learned counsel for the respondents that no reply was intended to be filed keeping in view the controversy involved and thereafter, the matter was argued on the basis of the documents on record. 10. Vide order dated 25.05.1992,Collector, Sub Division Ghumarwin, set aside the order of attestation of mutation passed by the Assistant Collector IInd Grade on the ground that Assistant Collector IInd Grade had failed to comply with the order of Division Commissioner dated 12.02.1988, vide which order, Commissioner had ordered fresh attestation of the mutation after following the provisions of Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act in view of the fact that the original mutation was attested by the Assistant Collector IInd Grade on 23.07.1975 after the death of Smt. Janki. It was held by the Collector that there was nothing in the order of the Assistant Collector IInd Grade dated 18.08.1989 to show that he had arrived at any finding with regard to the successors of Janki to the right of tenancy in the land in dispute, before attesting the impugned mutation. It was held by the Collector that there was nothing in the order of the Assistant Collector IInd Grade dated 18.08.1989 to show that he had arrived at any finding with regard to the successors of Janki to the right of tenancy in the land in dispute, before attesting the impugned mutation. The learned Collector while passing the said order took into consideration the fact that the issue of “successors in interest” of Smt. Janki, deceased, was the basic dispute between the parties and a finding on this issue in accordance with the provisions of Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, was a prerequisite before the mutation could be attested in any one’s favour. 11. Collector further held that it is only when deceased tenant leaves behind no such persons as are mentioned in Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, that the right of tenancy stands extinguished. According to the Collector, all these issues ought to have been decided by the Assistant Collector IInd Grade before attesting the mutation. As the same had not been done, accordingly, the Collector set aside the order passed by the Assistant Collector IInd Grade dated 18.08.1989 and remanded case to Assistant Collector IInd Grade with the direction that mutation be decided afresh after making an inquiry under Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, and recording findings thereon. 12. The order so passed by the Collector was uphold by the Additional Deputy Commissioner, District Bilaspur, vide its order dated 05.12.2001, as well as respondent No. 1 vide its order dated 18.04.2006. 13. I have heard learned counsel for the parties and have also gone through the record of the case. 14. In my considered view, there is no infirmity in the orders which have been challenged by way of the present writ petition. The order of attestation of mutation by the Assistant Collector IInd Grade dated 18.08.1989 was rightly set aside by the Collector, Sub Division Ghumarwin vide decision dated 25.05.1992. It is not disputed by the learned counsel for the petitioner that the exercise as envisaged in Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act was not undertaken by the Assistant Collector IInd Grade before the said authority passed the order dated 18.08.1989. 15. It is not disputed by the learned counsel for the petitioner that the exercise as envisaged in Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act was not undertaken by the Assistant Collector IInd Grade before the said authority passed the order dated 18.08.1989. 15. Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act reads as under:- “45. Succession to right of tenancy. – When a tenant in any land dies, the right shall devolve – (a) on his male lineal descendants, if any, in the male line of decent; and (b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom; and (c) failing such descendants and widow, on his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom; and (d) failing such descendants and widow or widowed, mother or, if the deceased tenanteft a widow or widowed mother then when her interest terminates under clause (b) or (c) of this section on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives.” 16. It is the own case of the petitioner that Smt. Janki had died few days before the initial attestation of mutation in her favour by the Assistant Collector IInd Grade on 23.07.1975 and the said mutation was set aside in appeal by the Divisional Commissioner, Shimla Division, vide order dated 12.02.1988, vide which order the case was remanded back to the Assistant Collector IInd Grade for fresh decision in the matter. It is also not disputed as rightly held by the Collector vide order dated 25.05.1992 that the basic dispute between the parties was with regard to issue of successor-in-interest of late Smt. Janki. Keeping this in view, it was incumbent upon the Assistant Collector IInd Grade to have held an inquiry as envisaged under Section 45 of the Act and thereafter, entered upon the attestation of the mutation on the basis of the findings so returned on the inquiry so held. In the said inquiry all affected and interested parties have to be associated and after taking into consideration the respective contentions of all the affected and interested parties, decision has to be taken. In the said inquiry all affected and interested parties have to be associated and after taking into consideration the respective contentions of all the affected and interested parties, decision has to be taken. Because the impugned order of attestation of mutation was passed by the Assistant Collector IInd Grade without complying with the said statutory provisions, therefore, the Collector rightly set aside the impugned order passed by the Assistant collector IInd Grade and issued directions to pass a fresh order after holding an inquiry as is envisaged under Section 45 of the Act. 17. Subsequent orders passed by the Additional Deputy Commissioner and Financial Commissioner (Appeals) upholding the said order passed by the Collector, Sub Division, Ghumarwin, are also reasoned and just orders. Both the said authorities have rightly come to the conclusion that there was no infirmity with the order passed by the Collector, Sub Division Ghumarwin, dated 25.05.1992, vide which the order of attestation of mutation dated 18.08.1989 had been set aside. 18. A perusal of the orders so passed by all the three authorities demonstrate that the orders are speaking orders and well reasoned orders. The same have been passed after taking into account all the contentions raised by different parties and after adjudicating upon the issues involved. Further, learned counsel for the petitioner has not been able to point out as to what prejudice has been caused to the petitioner by the order passed by the Collector, Sub Division Ghumarwin, which has been upheld by the higher authorities in view of the fact that all that the order says is this that attestation of mutation be carried out after complying with the provisions of Section 45 of the Act. 19. In this view of the matter, in my considered view, there is no infirmity with the order passed by the Collector, Sub Division, Ghumarwin, dated 25.05.1992 vide which the said authority has set aside the order passed by the Assistant Collector IInd Grade dated 18.08.1989. 20. I further find no infirmity in the order which has been passed by the Additional Deputy Commissioner, District Bilaspur, dated 05.12.2001 in File No. 2/2000 as well as in order dated 18.04.2006 passed by the Financial Commissioner (Appeals) in Revision Petition No. 83/2002. 21. 20. I further find no infirmity in the order which has been passed by the Additional Deputy Commissioner, District Bilaspur, dated 05.12.2001 in File No. 2/2000 as well as in order dated 18.04.2006 passed by the Financial Commissioner (Appeals) in Revision Petition No. 83/2002. 21. Therefore, in this view of the matter, I do not find any merit in the petition and the same is accordingly dismissed, so also the pending miscellaneous applications, if any. No order as to cost.