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2016 DIGILAW 2353 (HP)

Hari Chand v. Collector, Sub-Division, Churah

2016-11-07

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present writ petition is maintained by the petitioner against the respondents praying therein for the following substantive reliefs :- “(a) for issuance of an appropriate writ, order or direction to quash and set aside the impugned orders dated 23.7.2013 and 16.3.2015, Annexures P-2 & P3, respectively; and (b) to cancel Mutation No.583, which was done in connivance with the revenue authorities and attested/sanctioned on 17.6.2003.” 2. The petitioner has submitted that his mother, Smt. Dillu, had inherited property from her father. It has been submitted that after the demise of Smt. Dillu, Mutation No.583 was attested on 17.6.2003 and the petitioner relinquished his entitlement of his mother in favour of his paternal uncle (Mama), which was attested by the Assistant Collector 2nd Grade, Churah, in presence of revenue Chowkidar and public. The petitioner had also endorsed his signatures below Columns No.10 and 11 of the mutation register. 3. It has been alleged that the respondents in connivance with revenue authorities got the mutation entered and the petitioner was under the belief that his signatures were being taken for portioning his share. Therefore, he challenged the said mutation after a gap of 10 years before the Collector, Churah, who held that as per Section 15 of the H.P. Land Revenue Act, limitation for appeal is only 30 days, so, he did not accept the version that when the petitioner came to know about Mutation No.583, dated 17.6.2003, he filed the appeal. It is further submitted that the said appeal was dismissed by the Collector, Churah, vide order dated 23.7.2013, on the ground of delay. 4. It has been contended that the petitioner assailed the order of the Collector, Churah, dated 23.7.2013, before the learned Financial Commissioner (Appeals), H.P., who dismissed the same vide order dated 16.3.2015 and upheld the findings of the Ld. Collector, Churah. 5. It has further been contended that the Court below has not appreciated the fact that the order passed in Mutation No.583, dated 17.6.2003, by the Assistant Collector 2nd Grade, Churah is against the law and the mutation has been attested and sanctioned on the basis of relinquishment deed in favour of the respondents in connivance with the revenue staff. It has further been contended that the Collector has drawn a wrong conclusion from the evidence on record, which has prejudiced the case of the petitioner. 6. It has further been contended that the Collector has drawn a wrong conclusion from the evidence on record, which has prejudiced the case of the petitioner. 6. It has been alleged that both the Courts below have rejected the case of the petitioner only on the ground of delay, whereas the petitioner has stated all the bona fide reasons of delay in filing the appeal before them. It has been contended that the petitioner only came to know about the attestation of mutation on 22.1.2013, when respondents No.3 to 9 declared themselves to be the owners of the land in question. 7. It has also been contended that as per Rojnamcha report of Patwari of Sanwal Halqua, the name of the petitioner has been mentioned as Hari Chand son of Jassi, whereas, Hari Chand is the son of Dilu. It has also been mentioned that Jassi is aunt of Hari Chand. In fact, Smt. Jassi is grand-mother of Hari Chand. Therefore, the learned Courts below have ignored this major mistake while deciding the appeals. However, these mistakes were stated to be in the Taraknama, but the same have been totally ignored by both the Courts below. Hence, the impugned orders deserve to be quashed and set aside. 8. It has been contended that the learned Courts below have not appreciated the facts that at the time of Taraknama, dated 17.6.2013, Hari Chand was not present and the Taraknama was required to be attested, which was mandatory. It has further been contended that the Taraknama is required to be made only in the name of brothers and sisters and not in the name of any other person. 9. The respondents filed the reply, wherein they have submitted that the petitioner himself made a statement before the then Patwari, Halqua in connection with relinquishment of his share in favour of his maternal uncle(Mama). It has been submitted that the concerned Patwari has made entry in daily diary (Rojnamcha wakquati). Thereafter, the then Patwari entered the mutation where the parentage was recorded as per the pedigree table and mutation was got sanctioned and attested in the presence of the petitioner, the Revenue Chowkidar and public in an open meeting by the Assistant Collector 2nd Grade, Churah, District Chamba. Thereafter, the then Patwari entered the mutation where the parentage was recorded as per the pedigree table and mutation was got sanctioned and attested in the presence of the petitioner, the Revenue Chowkidar and public in an open meeting by the Assistant Collector 2nd Grade, Churah, District Chamba. It has been admitted by the respondents that the mutation was challenged after a gap of ten years before Sub Divisional Officer (C), Churah, who has not accepted the version of the petitioner being time barred. 10. Heard the learned counsel for the parties. 11. At this stage, this Court finds that the Courts below have dealt with the matter without conducting a detailed inquiry. In fact, the petitioner has assailed the conferment of the proprietary rights in favour of respondents No.3 to 9, immediately when he came to know about the same and he has taken a specific stand that he had put his signatures before the Patwari assuming that he is signing for the purpose of partition. Further, the Revisional Court below has failed to take notice of the fact that the name of the mother of the petitioner was not recorded correctly and even thereafter in place of the name of the mother of the petitioner, the name of his grand mother has been recorded, showing the same to be the name of his Aunt and stating that it is wrongly recorded as the name of Aunt in place of the mother. This is not a simple question especially when the petitioner, who is stated to have relinquished his share in favour of his paternal uncle (Mama), as he is assailing the same and is making specific averments that it is done by the respondents No.3 to 9 in connivance with the Patwari. Further from the perusal of the record, it is clear that the Courts below have failed to take these mistakes in the Tarknama in right perspective. Further, learned Court below has not appreciated the fact that at the time of execution of Taraknama, dated 17.6.2013, the petitioner was not present there. Further, the Taraknama was required to be made only in the name of brothers and sisters and not in the name of any other person. These matters have not been considered by the learned Revisional Court below, as the Revisional Court below has failed to take into consideration all these vital aspects. Further, the Taraknama was required to be made only in the name of brothers and sisters and not in the name of any other person. These matters have not been considered by the learned Revisional Court below, as the Revisional Court below has failed to take into consideration all these vital aspects. So, this Court finds that the matter is required to be remanded back to the learned Financial Commissioner(Appeals), H.P., Shimla, after setting aside the order of the learned Financial Commissioner (Appeals), H.P., dated 16.3.2015, with a direction to reconsider the matter and also take into consideration notification No.Rev.1-2(Stamp),dated 20.11.2001, issued by the Financial Commissioner and Secretary(Revenue) to the Government of Himachal Pradesh and notification No. Commissioner(Revenue)A3/2/2001, dated 5.11.2001, issued by the Commissioner Revenue to the Government of H.P., and decide the same afresh. Accordingly, the present writ petition is allowed and the order of the learned Financial Commissioner(Appeals), H.P. Shimla, dated 16.3.2015, passed in Revenue Revision No.23/2014, is quashed and set aside and the matter is remanded back to the learned Financial Commissioner(Appeals), H.P., Shimla to reconsider the revision petition and decide the same afresh after affording reasonable opportunity of being heard to the parties. Parties are directed to appear before the learned Financial Commissioner(Appeals), H.P., Shimla on 14.12.2016. Let a copy of this judgment be sent to the learned Financial Commissioner (Appeals), H.P., Shimla for compliance. 12. All pending application(s), if any, shall also stands disposed of accordingly.