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2016 DIGILAW 2285 (HP)

Atul Bhagirath v. State of Himachal Pradesh

2016-10-27

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. By way of present petition, order dated 27.11.2007 and 6.10.2009 passed by Financial Commissioner (Appeals), Government of Himachal Pradesh in case No. 278 of 2006 and Review Petition No. 1/2009 have been assailed with prayer that after setting aside these orders, Financial Commissioner (Appeals) be directed to decide the case afresh on merit by giving opportunity of being heard to the parties in the interest of justice. 2. Learned counsel for petitioners contended that at the time of passing of order dated 27.11.2007 Annexure P-2, no representative of present petitioners (respondents therein) was present before Financial Commissioner (Appeals). He further submitted that though in the Zimni order dated 28.05.2007 presence of Sh. Vinod Gupta Advocate has been marked as counsel for present petitioners (respondents therein), however, petitioners had never engaged or instructed Sh. Vinod Gupta Advocate to appear on their behalf. As per him, in view of such situation there was no representative of petitioners present before Financial Commissioner (Appeals) at the time of deciding case No. 278/2006. Therefore, Review Petition No. 1/2009, filed by petitioners, against order dated 27.11.2007 (Annexure P-2) has wrongly been dismissed vide impugned order dated 6.10.2009 (Annexure P-4). 3. In view of amended proviso of Section 16 of H.P. Land Revenue Act, no application for review is maintainable under Section 17 of the Act except in case of clerical or arithmetical mistakes arising from an accidental slip or omission. On confrontation with provisions of H.P. Land Revenue Act. Learned counsel for petitioners fairly admitted that Review petition no. 1/2009 was not maintainable. However, he submitted that said petition was filed on advice of advocate engaged by petitioners and there was no fault on their part in filing the said Review petition and therefore, filing of the said Review petition and order passed in the same deserves to be ignored and order dated 27.11.2007 passed in case No. 278/2006 deserves to be set aside and quashed on the ground that the petitioners have been condemned unheard and the said impugned order has been passed behind the back of petitioners. 4. Learned Deputy Advocate General has produced record as directed on 03.10.2016. Perusal of record reveals that present petitioners who were respondents in case No. 278/06 were duly served for 6.3.2007, but they had not bothered to have their representation before Financial Commissioner (Appeals). 4. Learned Deputy Advocate General has produced record as directed on 03.10.2016. Perusal of record reveals that present petitioners who were respondents in case No. 278/06 were duly served for 6.3.2007, but they had not bothered to have their representation before Financial Commissioner (Appeals). On 6.3.2007 on that day report of service compliance in respect of present petitioners was not on record, therefore, reminders for record and fresh notices to petitioners (respondents in case No. 278/2006) for 28.05.2007 were issued. On 28.5.2007, one Sh. Vinod Gupta Advocate, put appearance on behalf of the petitioners (respondents in case No. 278/2006). The said Sh. Vinod Gupta had represented them on 24 July 2007 also. 5. Record reveals that no power of attorney or memo of appearance was ever filed by Sh. Vinod Gupta, Advocate for representing petitioners. It appears that by taking advantage of such situation, petitioners are claiming that they were condemned unheard and impugned order was passed behind their back without giving opportunity of being heard to them. However, there is nothing placed on record with regard to any action taken against Sh. Vinod Gupta Advocate by petitioners for appearing in Court and representing them without their instructions. It is sufficient to draw conclusion that petitioners had instructed Sh. Vinod Gupta, Advocate to appear on their behalf and to represent them. In any case, if it is considered that Sh. Vinod Gupta Advocate was not instructed by petitioners to represent them before Financial Commissioner (Appeals), then also petitioners were duly served for actual date of hearing i.e. dated 6.3.2007 and it was for petitioners to make arrangements for their representation/appearance before Financial Commissioner (Appeals) either by engaging an advocate on their behalf in the proceedings in question or to represent themselves through their authorized representative, but petitioners had failed to do so and to explain and justify such omission on their part. 6. Record produced by learned Deputy Advocate General further reveals that in case No. 278/2006, present petitioners were also duly served for 28.5.2007. From perusal of record of Financial Commissioner (Appeals), it also transpires that Mr. Atul Bhagirath, present petitioner No.1 is an advocate as he had received the summons issued to him as Atul Bhagirath Advocate, Kullu. 6. Record produced by learned Deputy Advocate General further reveals that in case No. 278/2006, present petitioners were also duly served for 28.5.2007. From perusal of record of Financial Commissioner (Appeals), it also transpires that Mr. Atul Bhagirath, present petitioner No.1 is an advocate as he had received the summons issued to him as Atul Bhagirath Advocate, Kullu. But for the reasons best known to him, may be for representing him as a rustic agriculturist to assail impugned order on the ground of non representation before Financial Commissioner (Appeals), he has shown himself as agriculturist in the occupation stated in the affidavit filed in support of present petition. It is not a case where a rustic villager was served who was not having knowledge about further action to be taken on his part for his representation after service of summon upon him. It is evident from the perusal of record that petitioner No. 1 concealed his true identity probably in order to have sympathy of Court to obtain an order in his favour. 7. Sh. N.K. Bhardwaj, Advocate submitted that affidavit filed by present petitioner No. 1 was drafted and prepared by the advocate earlier representing him in this Court and probably it is his fault in mentioning incorrect occupation of petitioner No. 1 as agriculturist instead of an advocate and there is no fault of petitioners. It is not a case where a common man has signed an affidavit, but here is a case where an advocate has signed the affidavit under oath with verification by stating therein that contents of the affidavit are true and correct to the best of his personal knowledge and belief and no part of the same is false and nothing material has been concealed therefrom. In normal course, mentioning of incorrect/wrong occupation or non mentioning of occupation as an advocate may be irrelevant or insignificant, but in a case where impugned order is being assailed on the ground that no opportunity of being heard was provided to petitioners and also that petitioners had never engaged a counsel nor instructed the advocate appearing on their behalf before Financial Commissioner (Appeals) to appear, it becomes significant, because on disclosure of occupation of petitioner as an advocate, ground of non-representation despite service may lost force particularly when it is evident from record that he was duly served by the concerned agency clearly mentioning exact date of hearing in summons. Therefore, incorrect mention of occupation can not said to be a insignificant mistake attributing the same as mistake on the part of counsel who drafted petition. Therefore, contention of Mr. N.K. Bhardwaj, counsel for petitioners, is not acceptable. 8. Financial Commissioner (Appeals) has rightly held that in revision under Section 17 of H.P. Land Revenue Act, Commissioner was not having power to set aside the order passed by Sub-Divisional Collector and to remand the case in view of Section 17(3) of the Act which stipulates that in revision proceedings if the Collector or Commissioner is of the opinion that such order is required to be modified or reversed, Commissioner should report the matter to the Financial Commissioner. In present case, Commissioner had not adopted the procedure prescribed in the H.P. Land Revenue and, therefore, vide impugned order, Financial Commissioner has rightly held that Commissioner had exceeded his jurisdiction and exercised a power which he did not possess. Present petitioners had filed a Review petition and thereafter present writ petition assailing the said order whereas right course available to them was to approach the Commissioner to report the matter to the Financial Commissioner in accordance with provisions of H.P. Land Revenue Act. 9. In view of above discussion, petition is dismissed being devoid of merit along-with pending application, if any.