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2016 DIGILAW 1823 (HP)

Puran Singh v. Divisional Commissioner Mandi

2016-08-30

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Being aggrieved with the order dated 25.7.2011, passed by the Divisional Commissioner Mandi Division, Mandi, H.P exercising the power under Section 54 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, present petitioner approached this Court by way of instant writ petition seeking following reliefs:- (i). That the order dated 25.7.2011 passed by the respondent No.1 at Annexure P-1, may very kindly be quashed and set-aside and Revision Petition No. 4/2010 registered with the respondent No.1 may very kindly be dismissed with costs throughout, in the interest of justice. (ii). That the Respondents may very kindly be directed to produce the entire record pertaining to the case of the petitioner for the kind perusal of this Hon’ble Court. (iii). That any other order which this Hon’ble Court deems just and proper in the facts and circumstances of the case may also kindly be passed in favour of the petitioner and against the respondents in the interest of justice. 2. Briefly stated facts, as emerged from the record are that Consolidation of holdings took place in Muhal Tarangwal, Mauza Saproh, District Hamirpur, H.P., during the year, 1976-77, as a result whereof, khasra Nos. 17 and 18 were carved out from old khasra No.1 min. The petitioner (in short ‘respondent No. 2) and proforma respondents No. 2 to 6 got reserved the area in which the well was situated and in lieu of that area double of the land was surrendered, keeping in view the actual physical possession in the joint holding, prior to consolidation operation, suit land was allotted to the predecessor-in-interest of the respondent No.2. After 24 years of passing of aforesaid consolidation i.e. 1977, respondent No. 2, Rasila Ram filed Revision Petition under Section 54 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (in short ‘Act’) before respondent No.1 directly without availing alternate remedy under Sections 30(2), 30(3) and 30(4) of the Act. The Divisional Commissioner Mandi Division, Mandi, H.P exercising power under Section 54 of the Act, entertained the aforesaid revision petition filed by respondent No. 2 and the Divisional Commissioner, Mandi vide order dated 25.7.2011 while accepting the revision petition, ordered that the correction in the revenue record be made as per proposal (Tarmim) prepared by the Assistant Consolidation Officer. 3. The Divisional Commissioner Mandi Division, Mandi, H.P exercising power under Section 54 of the Act, entertained the aforesaid revision petition filed by respondent No. 2 and the Divisional Commissioner, Mandi vide order dated 25.7.2011 while accepting the revision petition, ordered that the correction in the revenue record be made as per proposal (Tarmim) prepared by the Assistant Consolidation Officer. 3. Perusal of the impugned order dated 25.7.2011, suggest that before passing of the order, Assistant Consolidation Officer was directed to inspect the spot and submit his factual report. The Assistant Consolidation Officer, after spot inspection submitted the report and on the basis of the same, the Divisional Commissioner, Mandi allowed the revision petition filed by respondent No. 2. 4. Mr. Ramakant Sharma, learned counsel representing the petitioner, vehemently argued that impugned order dated 25.7.2011, passed by learned Divisional Commissioner, Mandi is not sustainable in eyes of law as the same is not based upon the correct appreciation of the evidence available on record, rather the Divisional Commissioner by calling the report of the Assistant Consolidation Officer has fallen in grave error while exercising revisionary jurisdiction under Section 54 of the Act. He also contended that while exercising power under Section 54 of the Act, the Divisional Commissioner had no power whatsoever, to re-appreciate the material relied upon by the Consolidation Officer at the time of consolidation. He strenuously argued that bare perusal of impugned order dated 25.7.2011, suggest that respondent No. 2 filed revision petition under Section 54 of the Act after 34 years of consolidation, which was admittedly took place in the year, 1976-77 and as such, there was no occasion for the Divisional Commissioner to entertain the same that too without there being any application for condonation of delay. 5. With a view to substantiate his aforesaid arguments, Mr. Sharma made this Court to travel through impugned order to demonstrate that there is no discussion, whatsoever, with regard to delay and latches in maintaining the revision petition and as such, he prayed for setting aside and quashment of the impugned order on this sole ground. While concluding his arguments Mr. Sharma, stated that respondent No.2 without exhausting the alternate remedy provided under Sections 30(2), 30(3) and 30(4), filed revision petition under Section 54 of the Act and as such, the Divisional Commissioner had no authority to entertain the revision petition directly. While concluding his arguments Mr. Sharma, stated that respondent No.2 without exhausting the alternate remedy provided under Sections 30(2), 30(3) and 30(4), filed revision petition under Section 54 of the Act and as such, the Divisional Commissioner had no authority to entertain the revision petition directly. In the aforesaid background, he prayed for quashment and setting-aside the impugned order dated 25.7.2011. In order to substantiate its case, learned counsel for the petitioner has relied upon the judgment passed by this Court in Barfi Ram and another versus State of H.P and others, Latest HLJ 2009(HP) 44. 6. Ms. Megha Gautam, learned counsel representing the respondents No. 3 to 7, supported the impugned order dated 25.7.2011, passed by the Divisional Commissioner, Mandi. She vehemently argued that there is no bar at all, in directly approaching the authority concern under Section 54 of the Act. With a view to rebut the submissions having been made by learned counsel for the petitioner with regard to delay and latches, she invited the attention of this Court to the impugned order dated 25.7.2011, wherein petitioner (respondent No.2) stated before the authority that during the year 1994-95 settlement review took place in the aforesaid estate Tarangwal and at that time khasra No. 17 of consolidation was converted into khasra No. 168, measuring 00-02-89 hectares and changing its classification, it was recorded as ‘Barrani awal’ in the record. Petitioner further stated that aforesaid factum came to his knowledge only when respondent No. 1 tried to interfere in the peaceful possession of the petitioner and proforma-respondents No. 2 to 6 over a well. Ms. Mehga, while referring to the aforesaid statement having been made on behalf of the petitioner before the authority concern strenuously argued that petitioner rendered sufficient explanation with regard to delay and latches and as such, there is no error and illegality in the impugned order passed by the authority while accepting the revision petition filed under Section 54 of the Act. 7. Ms. Megha, learned counsel also contended that there is no specific period of limitation provided under Section 54 of the Act and as such, there is no merit in the contentions put forth on behalf of the petitioner with regard to delay and latches. Ms. 7. Ms. Megha, learned counsel also contended that there is no specific period of limitation provided under Section 54 of the Act and as such, there is no merit in the contentions put forth on behalf of the petitioner with regard to delay and latches. Ms. Megha, learned counsel while refuting the arguments advanced by the learned counsel for the petitioner that authority concern had no occasion to call for the report of Assistant Consolidation Officer while exercising his revisionary jurisdiction, contended that since party concern had directly approached the authority under Section 54 of the Act, there is no illegality whatsoever, in the procedure adopted by the authority, wherein it called for the report of the Assistant Consolidation Officer qua the spot. She also contended that the Assistant Consolidation Officer after spot inspection categorically stated in his report that at the time of consolidation, khasra Nos. 17 and 18 were carved out from old khasra No.1 min and petitioner (respondent No. 2) therein alongwith proforma respondents No. 2 to 6 got reserved the area in which well was situated and in lieu of that area double of the land was surrendered, however during consolidation operation land comprising khasra No.17,measuring 0-15 marlas was allotted to the petitioner as clearly emerge from the jamabandi for the year, 1975-76 prepared at the time of the consolidation. Mr. Megha, learned counsel forcibly contended that during the settlement review in 1994-95 khasra No.17 was changed in new khara No.168 and area of this khasra number was recorded 0-02-89 hectares changing its classification to ‘Barrani awal’. Khasra No.18 belonging to petitioner was changed into three parts such as khasra Nos. 165, 166 and 167 during settlement review and classification of land of khasra Nos., 165 & 166 was shown as ‘Gair Mumkin Kuan’ to the extent of 0-00-30 and 0-00-72 hectares respectively. But report of Assistant Consolidation Officer revealed that well stood constructed in old khasra No.18, which was converted into new khasra Nos. 166 and 167 during settlement review and on the spot it was established on record that the well was constructed by the petitioner and proforma-respondents No. 2 to 6. Ms. Megha Gautam, learned counsel while concluding her arguments, contended that petitioner as well as proforma respondents have been allotted khasra Nos. 166 and 167 during settlement review and on the spot it was established on record that the well was constructed by the petitioner and proforma-respondents No. 2 to 6. Ms. Megha Gautam, learned counsel while concluding her arguments, contended that petitioner as well as proforma respondents have been allotted khasra Nos. 166 and 167 min instead of khasra No. 168 min and as such, there is no illegality whatsoever, in the impugned order passed by the Divisional Commissioner and as such, same deserve to be upheld. 8. Learned counsel for the respondents No. 3 to 7 stated that valuable right of property cannot be defeated on technical objections like delay and latches especially keeping in view the fact that during consolidation operation land comprising khasra No.17 measuring 0-15 marlas was allotted to the petitioner as evident from the entries of jamabandi for the year, 1975-76 prepared at the time of consolidation, wherein the land has been shown as ‘Gair Mumkin Kuan’. In this regard, learned counsel for respondents No. 3 to 7 has relied upon the judgment passed by this Court in case Shankar Singh and others Versus State of H.P. and another, CWP No. 3031 of 2009 decided on 7.7.2016. 9. I have heard learned counsel for the parties and have carefully perused the entire record. 10. Since, specific question with regard to delay and latches in maintaining the revision petition under Section 54 of the Act has been raised by the petitioner while laying challenge to the impugned order, this Court deems it fit to decide the question of delay and latches at first instance before proceedings ahead to decide the case on merits. 11. Admittedly, as also emerged from the impugned order dated 25.7.2011, consolidation holdings took place in muhal Tarangwal, Mauja Saproh, Tehsil Nadaun, District Hamirpur, H.P. during the year, 1976-77, as a result of which, respondent and proforma respondents No. 2 to 6 reserved khasra No.17 measuring 0-15 marlas, as there was a well in the land in question and in lieu of this land double of the land was given to the other share holders. Perusal of impugned order, suggest that respondent being aggrieved with the conversion of khasra No.17 into khasra No. 168, measuring 00-02-89 hectares and changing its classification, wherein it was recorded ‘Barani Awal, in the record, filed revision petition under Section 54 of the Act before the Division Commissioner, who while exercising power under Section 54 of the Act passed the impugned order for correction in the revenue record in terms of the proposal made by the Assistant Consolidation Officer. 12. Careful perusal of the impugned order, wherein change made during consolidation operation in the year 1976-77 was sought to be reversed by the respondent, was admittedly filed after 34 years of consolidation operation, which admittedly took place in the year, 1976-77. Close scrutiny of the impugned order, nowhere suggest that the respondent herein at any point of time filed an application for condonation of delay in maintaining the revision petition filed under Section 54 of the Act and as such, it is not understood how Divisional Commissioner could accept the petition, if any, after 34 years of the consolidation without their being legally constituted application for condonation of delay. 13. Though, perusal of the impugned order dated 25.7.2011, suggest that petitioner stated before the authority below that he came to know with regard to change made pursuant to consolidation proceedings only when respondent No.1 tried to interfere with the peaceful possession of the petitioner and proforma respondents No. 2 to 6 over a well. Petitioner also stated that thereafter, petitioner obtained copies of the revenue record from Patwari, from which it revealed that khasra No.18 was converted into khasra Nos. 165 to 167 and on demarcation, it transpired that a well is situated in khasra No. 166. Interestingly, there is no whisper of date, if any, with regard to preparation of tatimas. Apart from above, this Court is unable to find any discussion in the impugned order, passed by the Divisional Commissioner with regard to delay and latches while accepting the revision petition. 14. It is apt to reproduce under Section 54 of the Act as under:- “54. Apart from above, this Court is unable to find any discussion in the impugned order, passed by the Divisional Commissioner with regard to delay and latches while accepting the revision petition. 14. It is apt to reproduce under Section 54 of the Act as under:- “54. Power of the State Government to call for proceedings- The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act call for and examine the record of any case pending before or disposed of by such officer and may pass such orders in reference thereto as it thinks fit: Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration. 15. In the instant Case, respondent by way of filing revision petition under Section 54 of the Act made an attempt to re-open consolidation proceedings, which admittedly took place in the year, 1976-77 after long gap of 34 years and there is no endeavor on the part of the respondent to explain delay in maintaining revision petition. 16. This Court is of the view that since there was no legally constituted application for condonation of delay preferred on behalf of the respondent while maintaining the revision petition, authority envisaged under Section 54 of the Act had no power to condone the delay of 34 years in maintaining revision petition that too on the basis of assertion made in the petition that factum of change in the revenue record came to his knowledge when petitioner tried to interfere in the peaceful possession of the petitioner. In this regard reliance is placed on the judgment of Hon’ble Apex Court in Loku Ram Vs. State of Haryana and Others, 1999(3) PLR (Vol.123)590), wherein Hon’ble Apex Court while considering a similar provision of revisional powers being exercised under Section 18(6) of the Haryana ceiling on Land Holdings Act, 1972, which vested powers in him to exercise powers suo motu at any time, held:- “2. State of Haryana and Others, 1999(3) PLR (Vol.123)590), wherein Hon’ble Apex Court while considering a similar provision of revisional powers being exercised under Section 18(6) of the Haryana ceiling on Land Holdings Act, 1972, which vested powers in him to exercise powers suo motu at any time, held:- “2. However, in 1989, an application was presented before the Financial Commissioner under Section 18(6) of the Act praying for invoking his suo motu powers to look into the legality of the orders after calling for the records of the Collector. The Financial Commissioner, after hearing both parties, passed an order on 17.2.1994 setting aside the order of the Collector on the basis that the same was vitiated by patent illegality. An objection was raised before the Financial Commissioner that he should not exercise the revisional power after a lapse of seven years from the date of the order of the Collector. He over ruled that objection holding that when an order was vitiated by illegality, he could look into the same under Section 18(6) of the Act. The Financial Commissioner disagreed with the Collector and set aside his order. 3. The order of the Financial Commissioner was challenged before the High Court in a writ petition but the High Court refused to interfere with the same. The present appeal before us is against that order of the High Court. 4. Section 18(6) of the Act reads thus:- “Section 18(6)-Notwithstanding anything contained in the foregoing sub-sections, the Financial Commissioner may suo motu at any time call for the record of any proceedings or order of any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order, and may pass such order in relation thereto as he may deed fit.” 5. No doubt, the section uses the expression “at any time” but it cannot be indefinite. The power has to be exercised within a reasonable time. While construing the expression “at any time”, this court in State of Gujarat v. P. Raghav, AIR 1969 SC 1297 , has stated the law thus:- “11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. The power has to be exercised within a reasonable time. While construing the expression “at any time”, this court in State of Gujarat v. P. Raghav, AIR 1969 SC 1297 , has stated the law thus:- “11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.” 6. Section 18(2) of the Act prescribes a period of 15 days for filing an appeal and Section 18(4) prescribes a period of 30 days for filing a revision before the Commissioner. When the two sub-Sections prescribe a very short period of 15 and 30 days respectively, it will be unreasonable to hold that the Financial Commissioner has unlimited power to entertain a revision after a lapse of several years. 7. The test prescribed by this Court in Raghav’s case has been ignored by the Financial Commissioner in the present case. His order does not disclose any reason to hold that a period of nearly seven years is reasonable on the facts of the case. Nor has the High Court gone into the question and decided whether the power has been exercised on the facts and circumstances within a reasonable period. Hence we allow the appeal and set aside the order of the High Court. The order of the Financial Commissioner is also set aside. The order of the Collector dated 18.6.1982 is restored. No costs.” 17. In the aforesaid case as referred hereinabove, the Hon'ble Apex Court while examining Section 18(6) of the Haryana Ceiling on Land Holdings Act, 1972 observed that no doubt, the section uses the expression ‘at any time’ but it cannot be indefinite. The power has to be exercised within a reasonable time as has been held by Hon’ble Apex Court in State of Gujarat v. P. Raghav Natha and others, AIR 1969 SC 1297 . The relevant para-11 of the judgment is reproduced as under:- “11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. The relevant para-11 of the judgment is reproduced as under:- “11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.” 18. Section 54 of the Act, under which Divisional Commissioner exercised revisionary power and allowed the appeal/petition, also provides that authority may Suo motu at any time call for the record of any proceedings or order of any authority. But, as has been observed above by the Hon’ble Apex Court that power under Section 54 of the Act, is to be exercised within reasonable time. In the present case, as has been observed above, the Divisional Commissioner while accepting the revision petition over looked the aspect of delay and latches and without there being any legally constituted application allowed the revision petition that too after 34 years of the consolidation proceedings. 19. The Co-ordinate Bench of this Court in CWP No. 2119 of 2007 while placing reliance upon the judgment passed by the Hon’ble Apex Court as referred also held that proceedings closed 24 years back cannot be re-opened, which would invariably lead to multiplicity of proceedings between various parties and further conjoint reading of exposition of law as discussed above clearly suggest that any adjudicatory power including revisional power has to be exercised within a reasonable time irrespective of the fact as to whether the provision itself states that the power can be exercised at any time. Aforesaid judgment passed by this Court was further upheld in LPA No. 548 of 2011. 20. Learned Counsel representing the petitioner also placed reliance on the judgment passed by this Court in Barfi Ram and another versus State of H.P and others, Latest HLJ 2009(hp) 44. The relevant para No. 7 of the judgment is reproduced as under:- “7. The matter is required to be considered from another angle. The respondent No.2 has exercised the power under Section 54 of the Act against the order of Consolidation Officer, dated 8th March, 2006. The relevant para No. 7 of the judgment is reproduced as under:- “7. The matter is required to be considered from another angle. The respondent No.2 has exercised the power under Section 54 of the Act against the order of Consolidation Officer, dated 8th March, 2006. He has exercised the revisional jurisdiction without taking into consideration the order passed by the Settlement Officer dated 20th November, 1991, which has attained finality. The effect of the order passed by the learned Director, dated 11th October, 2006 is that he has ordered corrections without setting aside the order of Settlement Officer dated 20th November, 1991. He has unsettled the things which have been settled on the basis of order dated 20th November, 1991. Once, the hierarchy has been provided in Section 30 of the Act, the same has to be followed the exhausted by filing appeals in the prescribed period of limitation. The parties cannot be permitted to achieve something indirectly which they cannot achieve directly. Assuming hypothetically that the Director could exercise the jurisdiction independently under Section 54 of the Act, was it permissible for him to invoke his jurisdiction after 14 years, is not a moot question. The Court is of the considered opinion that even though word “any time” has been used in Section 54 of the Act, the same has to be exercised within a reasonable time. It cannot be presumed that the power of revision can be used without taking into consideration the delay and laches of 14 years. Their Lordships of the Hon’ble Supreme Court in number of cases have held that word “an any time” has to be interpreted/considered pragmatically. It cannot be presumed that the power can be exercised beyond a reasonable period. The reasonable period though may vary from case to case, but here it should not be more than 3 to 4 years.” 21. In view of the detailed discussion made hereinabove as well as law laid down by the Hon’ble Apex Court as well as by this Court, this Court is of the view that Divisional Commissioner exercising power under Section 54 of the Act had no power to condone inordinate delay of 34 years while passing the impugned order. In view of the detailed discussion made hereinabove as well as law laid down by the Hon’ble Apex Court as well as by this Court, this Court is of the view that Divisional Commissioner exercising power under Section 54 of the Act had no power to condone inordinate delay of 34 years while passing the impugned order. At this stage, this Court also examined applicability of the judgment passed by Co-ordinate Bench of this Court in case Shankar Singh and others versus State of Himachal Pradesh and another, CWP No.3031 of 2009, decided on 7.7.2016. Careful perusal of the aforesaid judgment relied upon by the learned counsel representing the respondent, clearly suggest that same is not applicable in the present facts and circumstances of the Case. True, it is that in the aforesaid case, learned Court, rejected the plea of inordinate delay in maintaining the petition raised on behalf of the respondents- State, but perusal of para-16 of the judgment, suggest that Court in the aforesaid case after perusing the pleadings as well as record, was satisfied that there is no inordinate delay of 35 years in filing the writ petition. Moreover, in the case supra, land was acquired by the respondent-State for construction of road and in this regard notification under Section 4 of the Land Acquisition Act was also issued and the petitioner filed petition in that case seeking direction to the respondents-State to make the payment to the petitioners qua the land utilized for the construction of the road as per the rates of compensation already settled by the District Judge vide its award dated 28.2.2006, which was further upheld by this Court vide judgment dated 23.12.2008. It is profitable to reproduce para-16 of the judgment as under:- “In my considered view there is no an inordinate delay of 35 years in filing of the writ petition as has been stated in the preliminary objections taken in the reply by the State. Notification under Section 4 itself was issued on 13th September, 1993. This fact is duly borne out from the award passed by the Land Acquisition Collector dated 20.1.1997. Notification under Section 4 itself was issued on 13th September, 1993. This fact is duly borne out from the award passed by the Land Acquisition Collector dated 20.1.1997. The present petition has been filed by the petitioner after the decision of this Court dated 23.12.2008 in RFA No. 359 of 2006 and other concerned matters which appears and cross-objections were filed by the aggrieved parties against the award passed by the learned District Judge in reference petitions preferred against the award passed by the Land Acquisition Collector. The petitioners have stated that they could not approach the Court earlier being rustic and illiterate villagers. Reply to the said averments made in the writ petition by the State is cryptic”. 22. In the aforesaid case, Court was fully convinced that the land of the petitioner was utilized by the State for the construction of road and compensation was being denied solely on the ground that no objection whatsoever, was taken by the owners of the land at the time of the construction of the road. Since in the case relied upon by the respondent, Co-ordinate Bench of this Court was fully satisfied after perusing the record that there was no inordinate delay in maintaining the revision petition, judgment passed in that case cannot be made applicable in the present facts and circumstances of the case, where it stands duly proved on record that revision petition under section 54 of the Act was filed after 34 years of consolidation that too without there being any application for condonation of delay. 23. Consequently, in view of the aforesaid discussion made hereinabove, this Court is of the view that the Divisional Commissioner has fallen in grave error while accepting the revision petition after inordinate delay of 34 years that too without there being any explanation for condonation of delay and as such, impugned order dated 25.7.2011 deserve to be quashed and set-aside. In view of the aforesaid discussion, the present petition is allowed and impugned order dated 25.7.2011 passed by Divisional Commissioner exercising the power under Section 54 of the Act is quashed and set-aside. Accordingly, the present petition is disposed of, alongwith pending applications, if any.