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2016 DIGILAW 1516 (HP)

Ram Kishan v. State of Himachal Pradesh

2016-07-28

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present writ petition is maintained by the petitioner under Articles 226 and 227 of the Constitution of India laying challenge to the order dated 09.03.2011, passed by learned Divisional Commissioner Mandi, while exercising the powers under Section 54 of Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (for short “the Act”) in Case No. 715 of 2009, with prayer to quash the order and restore the order passed by the Additional Director Consolidation under Section 30(4) of the Act. 2. Precisely, the facts of the case, as projected by the petitioner, are that consolidation of land started in Hamirpur District of H.P. and during the proceedings scheme was prepared for re-partition. During the preparation of the scheme, every right holder was given right to reserve particular portion of the land upon which the Act would not be applicable and possession thereof would remain with the right holder. In the consolidation, as aforesaid, whole land of the village was consolidated and distributed according to value of the land. However, some land of each right holder was deducted for common purposes in the village. When the above incorporation was taking place in the Scheme, the petitioner and predecessor-in-interest (Shri Kanshi Ram) of the respondents mutually agreed that Khasra No. 307/276/197 and Khasra No. 264/169 would remain with the right holders possessing the same before consolidation. The mutual agreement inter se the parties, i.e., petitioner and the predecessor-in-interest of the respondents, was effected vide Resolution No. 24, dated 24.03.1989 and the same was incorporated by the consolidation authorities and the possession of the respective parties was kept intact. Later on, the predecessor-in-interest of the respondents was stirred up by his family members and other persons and resultantly he filed objections before the Consolidation Authorities alleging therein that Resolution/compromise is not acceptable to him and the same be cancelled. Consequently, Resolution No. 24 was repudiated and the land was re-distributed and Objections were registered as Case No. 1143/93 and the same were accepted on 07.10.1993. 3. Feeling disgruntled, the petitioner herein preferred an appeal under Section 30(3) before the Settlement Officer. However, the same was dismissed without giving reasons, vide order dated 21.12.1999 in Case No. 117/94. As per the petitioner, objections were not maintainable before the Consolidation Officer and decision by Consolidation Officer on the Objections is also without jurisdiction. 3. Feeling disgruntled, the petitioner herein preferred an appeal under Section 30(3) before the Settlement Officer. However, the same was dismissed without giving reasons, vide order dated 21.12.1999 in Case No. 117/94. As per the petitioner, objections were not maintainable before the Consolidation Officer and decision by Consolidation Officer on the Objections is also without jurisdiction. The petitioner preferred appeal assailing the order of Settlement Officer before the Joint Director (Consolidation) under Section 30(4) of the Act. The appeal was accepted on 28.04.2007 and the decision of the Consolidation Officer, Hamirpur, in Case No. 1143 of 1993, dated 07.10.1993 was set aside and amendment was made in both the decisions. Subsequently, Smt. Sanehroo Devi and others preferred a Revision Petition under Section 54 before the learned Divisional Commissioner, exercising the power under Section 54 of the Act, the same was accepted without reasons and speaking order. As per the petitioner, he is laying challenge to the order of learned Divisional Commissioner, dated 09.03.2011, succinctly on the grounds that the same is illegal, without any reasons and the same is non-speaking, Objections were not maintainable before the Consolidation Officer and the order of Divisional Commissioner, Mandi Division, Mandi, H.P., exercising the power under Section 54 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, deserves to be set aside. 4. Reply to the writ petition was filed by respondents No. 1 and 2, wherein it is averred that the petition not maintainable as the order passed by the learned Divisional Commissioner was speaking order and as per law. 5. Heard. The learned counsel for the petitioner has argued that the order passed by the Divisional Commissioner, Mandi Division, Mandi, H.P., exercising the power under Section 54 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, was not sustainable as the Resolution No. 24, dated 24.03.1989, was passed with the consent of the parties and it cannot be challenged. Further, it has been argued that the order passed by the Divisional Commissioner is not a speaking order and the same is liable to be set aside. To support his arguments, the learned counsel for the petitioner has relied upon judgments rendered in Bhagat Raja vs. Union of India and others, AIR 1967 Supreme Court 1606 and Commissioner of Central Excise, Customs, Rajkot vs. Amul Industries Private Limited, (2010) 15 SCC 101. 6. To support his arguments, the learned counsel for the petitioner has relied upon judgments rendered in Bhagat Raja vs. Union of India and others, AIR 1967 Supreme Court 1606 and Commissioner of Central Excise, Customs, Rajkot vs. Amul Industries Private Limited, (2010) 15 SCC 101. 6. Conversely, the learned Additional Advocate General has argued that the order passed by the Divisional Commissioner, Mandi Division, Mandi, H.P., exercising the power under Section 54 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, is reasoned and after appreciating the facts in their true perspective and the present petition is devoid of merit and needs dismissal. 7. Learned counsel appearing on behalf of respondents No. 3 to 10 has argued that the Resolution No. 24 was passed without free consent, making the predecessor of respondents No. 3 to 16 to believe something which was not, in fact, there. Therefore, Resolution cannot be said to be passed with consent of the parties. He has further argued that the order passed by the learned Divisional Commission is reasoned order. 8. To appreciate the arguments of the learned counsel for the parties, I have gone through the record in detail. From the record, at the first instance, it seems that Resolution No. 24 was passed with the consent of the parties, but on minute checking of the record, it seems that Shri Kanshi Ram, predecessor-in-interest of the respondents No. 3 to 16 had agreed to give his 7-3 kanals of land to the petitioners in lieu of 2-18 kanals of land. The value of two lands was nearly the same. On appreciation of arguments of learned counsel for respondents No. 3 to 10, I have reasons to conclude that as the predecessor-in-interest of the respondents was at that time 87 years of age and immediately after Resolution No. 24, he objected to the same, it cannot be said that the Resolution No. 24 was passed with the consent of the parties, when it was objected to immediately. 9. Now coming to the arguments of the learned counsel for the petitioner that the order passed by the Divisional Commissioner is without reasons. I have considered the law as cited by the learned counsel for the petitioner. In Bhagat Raja vs. Union of India and others, AIR 1967 Supreme Court 1606, the Hon’ble Apex Court has held as under: “9. Now coming to the arguments of the learned counsel for the petitioner that the order passed by the Divisional Commissioner is without reasons. I have considered the law as cited by the learned counsel for the petitioner. In Bhagat Raja vs. Union of India and others, AIR 1967 Supreme Court 1606, the Hon’ble Apex Court has held as under: “9. Let us now examine the question as to whether it was incumbent on the Central Government to give any reasons for its decision on review. It was argued that the very exercise of judicial or quasi judicial powers in the case of a tribunal entailed upon it an obligation to give reasons for arriving at a decision for or against a party. The decisions of tribunals in India are subject to the supervisory powers of the High Courts under Article 227 of the Constitution and of appellate powers of this Court under Article 136. It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word “rejected”. Or “dismissed”. In such a case, this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the appeal. Ordinarily, in a case like this, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But, when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de novo without anybody being the wiser for the review by the Central Government. But, when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order or the State Government without specifying those reasons which according to it are sufficient to uphold the order of the State Government, this Court, in appeal, may find it difficult to ascertain which are the grounds which weighed with the Central Government in upholding the order of the State Government. In such circumstances, what is known as a “speaking order” is called for. In the present case, the order passed is not a single word order, but the order contains the reasons in para 22, though not written in detail, but in summarized manner. The learned Divisional Commissioner has concluded that pursuant to Resolution No. 24, dated 24.03.1989, exchange was neither made corresponding with standard area nor simple area. So, this exchange was found to be unreasonable by the Court below by giving reasons and in this way the judgment cited by the learned counsel for the petitioner is not applicable to the facts of the case in hand. 10. The Hon’ble Supreme Court in Rajkot vs. Amul Industries Private Limited, (2010) 15 SCC 101, has held as under: “3. We have gone through the judgment of the High Court very carefully and on consideration thereof, we are fully satisfied that the same is devoid of any reason. There is no discussion on the issues involved. A bare perusal of the said order would indicate that there is no discussion at all on the issues involved and the entire appeal was disposed of only by recording the following: “The counsel for the appellant has failed to show us that for eligibility to avail credit of duty, it is necessary that the assessee should have its own plant and machinery. In absence of that, we see no merit in this appeal. In absence of that, we see no merit in this appeal. The appeal stands dismissed at admission stage.” But in the present case, the learned Divisional Commissioner has given the findings that pursuant to Resolution No. 24, dated 24.03.1989, exchange was neither made corresponding with standard area nor simple area. So, this exchange was found to be unreasonable by the Court below by giving reasons. Therefore, the judgment, as above, cited by the learned counsel for the petitioner is not applicable to the facts of the present case. 11. In a nut shell, as a result of the above discussion, the order passed by the learned Divisional Commissioner, Mandi Division, Mandi, H.P., exercising the power under Section 54 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, is as per law and no interference is required, as the Resolution No. 24 was objected to by Shri Kanshi Ram, predecessor-in-interest of respondent, and as it seems to be unreasonable as the 7-3 kanals of land of nearly same value was consented to be exchanged for 2-18 kanals land of the petitioner of same value, so as the exchange was neither made which corresponds to standard area or simple area, no interference with the order passed under Section 54 of the Act is allowed. The petition, being devoid of merits, deserves dismissal and is accordingly dismissed. However, the parties are left to bear their own costs. 12. In view of the above, the petition, as also pending applications, if any, shall stands disposed of.