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Himachal Pradesh High Court · body

2016 DIGILAW 895 (HP)

AMAR SINGH PRABHAT SINGH v. PROMILA

2016-05-23

NARINDER CHAUHAN

body2016
ORDER : 1. These two revision petitions under Section 114(3) of the H.P. Tenancy & Land Reforms Act, 1972 (hereinafter referred to as the Act), are directed against the orders dated 07.06.2011, passed by the Id. Commissioner, Kangra Division, in Appeal nos.142/2004 and 147/2004 vide which orders dated 26.5.2004 passed by the Collector Sub-Division, Dharamshala, in case nos. 22/200 and 21/2000, have been set aside. However, for the reasons recorded below I have proceeded to decide these revision petitions under the provisions Section 17 of the H.P. Land Revenue Act, 1954 read with the a provisions of the Act, ibid. 2. Since, these revision petitions have arisen out of same order and facts of the revisions are similar, these petitions have been clubbed together for hearing and disposal. 3. Brief facts of the case are that these revision petitions relate to two mutations attested by the A/c 2nd Grade on 12.6.2000, of revenue estate Manal, Tehsil Shapur, Distt. Kangra, Vide mutation no. 339, the land measuring 0-22-16 hect. bearing khasra no. 380/1, has been restored to land owners (present respondents) and vide another mutation No. 338, land bearing khasra no. 380/2, measuring area 0-22-13 hect. The mutation is in favour of tenants (present petitioners), in pursuance to order dated 14.10.1976, passed by the Land Reforms Officer, on application/Form LR-V, 3015 filed by the present respondents. It is pertinent to mention here mutations no.324 and 325, entered in pursuance to the above order of the LRO were earlier rejected by the A.C. 2nd Grade, vide order dated 23.8.1999, stating it to be time barred. 4. Feeling aggrieved with the above orders dated 12.6.2000, passed by the A C. 2nd Grade, on mutation nos. 338 and 339, the present petitioners filed two separate appeals before the Collector, Sub-Division, Shahpur. In appeal no.21/2000, they assailed mutation no.338 and in appeal no 22/2000 they challenged mutation no.339. Both the appeals have been filed on the ground that after rejection of mutation nos.325 and 324 on 23.8.1999 by the A.C. 2nd and during the pendency of appeal filed by the present respondents before the Ld. Collector, Sub-Division, Dharamshala, the A.C. 1st Grade, Shahpur attested the fresh mutation nos. 339 and 338 on 12.6.2000, on the basis of said order of LRO, which orders are against the law and facts as these mutations were of the same nature which stand rejected. The Id. Collector, Sub-Division, Dharamshala, the A.C. 1st Grade, Shahpur attested the fresh mutation nos. 339 and 338 on 12.6.2000, on the basis of said order of LRO, which orders are against the law and facts as these mutations were of the same nature which stand rejected. The Id. Collector, vide order dated 26.5.2004, allowed both the appeals No. 21/2000 and 22/2000,by setting aside the orders dated 12.6.2000, passed by the A.C. 2nd Grade, holding that the A.C. 2nd Grade has no jurisdiction to attest the mutations under Chapter X of the Act, which relate to conferring proprietary rights as per Rules, 24(2), 25 and 28 of the H.P. Tenancy & Land Reforms Rules, 1975. That the tenants have the first right of selection of land under tenancy and further that mutations no. 324 and 325 wee presented before the A.C. 1st Grade-cum-LRO, Shahpur after a lapse of 20 years which had been rightly rejected being time barred and lastly that these mutations could have been again attested by the A.C. 2nd Grade, only after obtaining the necessary approval for review of the provisions orders, which has not been sought in the instant case and this is an illegality. 5. Feeling aggrieved with the above orders of the Collector dated 26.5.2004, the present respondents filed two separate appeals No.142/2004 and 147/2004, before the Commissioner, Kangra Division, mainly on the ground that the Collector, Sub-Division is not vested with the powers to decide/adjudicate the dispute regarding the mutations in respect of conferment of proprietary rights under Chapter X of the Act and the District Collector is only competent to decide such appeals. The Id. Commissioner, vide impugned orders dated 7.6.2001, allowed both the appeals and set aside the orders dated 26.5.2004, passed by the Collector, Sub-Division Dharamshala, with liberty to the respondents (present petitioners) to move to the appropriate court for redressal of their grievances, if any. Hence, the present revision petitions. 6. I have heard the Id. Counsels for both the parties. Ld. Counsel for the petitioners has based his case on the grounds taken in revision petitions and submitted that the Id. Commissioner, has not given any finding, and reasoning while passing he impugned order by setting aside the order dated 26.5.2004, and that the reasons in support of the decision must be recorded and they must be cogent and clear. Ld. Counsel for the petitioners has based his case on the grounds taken in revision petitions and submitted that the Id. Commissioner, has not given any finding, and reasoning while passing he impugned order by setting aside the order dated 26.5.2004, and that the reasons in support of the decision must be recorded and they must be cogent and clear. Further, it has been contended that as per provisions of Chapter X of the Act and rules 24(2), 25 and 28, of the Rules, 1975, the A.C. 2nd Grade, has no power to sanction the mutation regarding conferment of proprietary rights, in this regard Id. Counsel has cited the case "SLC 199(1), 343", "2007(2) Cur LJ, 538", "2002(2) Cur LJ. page 31", "1994(1)SLC, 22", "1993(1) SLC 278", "1993(2)SLC 449", "1990(1) SLJ, 491" and "1993(1)SLC 265, 271". Further it has been contended that even otherwise also order of the A.C. IInd Grade dated 12.6.2000, passed in mutation is legally and factually not sustainable in the eyes of law for the reason that the LRO has passed the order dated 14.10.1976, for resumption of land from the tenants but no steps have been taken by the landowners till 1999 for getting the said order implemented and even in 1999 when the respondents applied for implementation of order dated 14.10.1976, the mutations no. 324 and 325 were entered and after affording due opportunities the same were rejected by LRO Shahpur, on 23.8.1999, being time barred. The Kd Counsel for petitioners further argued that thereafter, the respondents filed an appeal no. 1/2000, on 28.2.2000, against said mutations no. 324 and 325 before the Sub-Divisional Collector, Dharamshala, which was dismissed on 27.9 2000, being not contested, but in the mean time, in connivance with the revenue Officer, the respondents got the mutations no. 338 and 339 attested on 12.6.2000, from the A.C. IInd Grade, to implement the order dated 14.10.1976. He further argued that A.C. IInd Grade, has attested the said mutations without seeking the necessary permission from the Collector to review the earlier order, as per requirement of section 63 of the Act. That a civil suit no 140/03 regarding the same suit land between the parties, has been decided by the Civil Judge (Sr. Div.) at Dharamshala, vide order dated 26.11.2010, in favour of the petitioners and in support of his contention, Ld. counsel also submitted a copy of the judgment. That a civil suit no 140/03 regarding the same suit land between the parties, has been decided by the Civil Judge (Sr. Div.) at Dharamshala, vide order dated 26.11.2010, in favour of the petitioners and in support of his contention, Ld. counsel also submitted a copy of the judgment. Lastly, on limitation, it has been argued that as per Article 67 of the Limitation Act, the land owner can get the possession from the tenant within a period of twelve years from the date of final order (i.e. 14.10.1976 up to 14.10.1988) and thereafter the order of LRO cannot be executed but the A.C. IInd Grade has not gone through the same. It has been prayed that the impugned order dated 7.6.2011 as well as order dated 12.6.2000 passed in mutations no.338 and 339 may be set aside and the order dated 26.5.2004, passed by the Collector, be confirmed/upheld in the interest of justice. 7. In reply, Id. Counsel for the respondents argued that consequent to the order dated 14.10.1976 passed by the LRO, the A.C. IInd Grade, has attested the mutations in favour of the respondents (Landowners) which has been wrongly set aside by the Collector in appeal Ld. Counsel further argued that under the provision of Chapter X, and Rule 21, 22, 23, 24, the LRO, has passed the orders and the A.C. IInd Grade is competent to attest the mutation, since it is not a dispute qua a the tenancy between the land owner and tenants. Lastly he has requested to dismiss both the revision petitions being devoid of any merit. 8. From the arguments advanced on behalf of both the parties and after perusal of record, the following issues arises: (i) Whether the subject matter of the revision petitions falls only under the provisions of the H.P. Tenancy and Land Reforms act, 1972 or not? (ii) Whether the A.C. 2nd Grade is competent to attest the mutation in pursuance to orders passed by the Land Reforms Officer, under the H.P. Tenancy and Land Reforms Act 1972? Whether the mutations under challenge have been rightly attested by the A.C. 2nd Grade, Shahpur or not? 9. (ii) Whether the A.C. 2nd Grade is competent to attest the mutation in pursuance to orders passed by the Land Reforms Officer, under the H.P. Tenancy and Land Reforms Act 1972? Whether the mutations under challenge have been rightly attested by the A.C. 2nd Grade, Shahpur or not? 9. From the perusal of record i.e. copies of mutations No. 338 and 339 available on the file of Collector, Sub-Division Shahpur, District Kangra, it is clear that both these mutations have been attested in compliance to the order dated 14.10.1976, passed by the Land Reforms Officer, under the provisions of Section 104 of the Act and rules framed thereunder. The orders dated 14.10.1976, are stated to have been passed by the LRO, Shahpur on an application filed by the present respondents (being landowners) on Form LRV-3015 for resumption of land under the tenants (present petitioners). These orders of the LRO have never been challenged by any of the parties to the instant case, the proprietary rights have been conferred upon the tenants by the orders dated 14.10.1976 passed by the Land Reforms Officer and also the resumption of land has been allowed by the same order. Since, it is the orders of LRO. not the mutation attested in pursuance of that order, which have conferred or extinguished the rights upon the land under tenancy and the petitioners have also challenged the mutations only not the orders of LRO, as such, the subject matter of the revisions is not covered under the provisions of the H.P. Tenancy and Land Reforms Act, 1972 and Rules framed thereunder. Hence, the impugned orders passed by the Commissioner, Kangra Division, are illegal and void-ab-initio, being passed only under the H.P. Tenancy and Land Reforms Act, 1972. 10. In order to examine the issue no.(ii) it would be appropriate to discuss some of the relevant provisions of Part V of the H.P. Tenancy and Land Reforms Rules, 1975 (hereinafter referred to as the Rules) which deals with acquisition of proprietary rights by non-occupancy tenants, Rule 21 of the rules provides that a land owner who intends to resume land for his personal cultivation under section 104 shall himself or through an authorised person submit an application in Form LR Form LRV in duplicate to the Land Reforms Officer LRO to deal with an application for resumption. Rule 25 of the Rules which deals with mutation may be read as follows:- "25 Mutation: The order of the Land Reforms Officer passed under rule 24 shall be given effect to by way of mutation on the expiry of the period of limitation prescribed for appeal and revision in section 114. There will be two mutations in each case, one for extinguishment of tenancy rights and the other for extinguishment of ownership rights of land in question. The mutation fee chargeable on these mutations will be the same as that far giving effect to a decree of a Civil Court." From bare perusal of the aforesaid Rules, it is clear that there is no restriction upon the A.C. 2nd Grade to attest mutation on the basis of orders passed by the Land Reforms Officer. Hence, where a Land Reforms Officer, decides a dispute between the landowner and tenant under the provisions of the Act, mutation in pursuance to such order can be attested by a Revenue Officer other grade. So far as the contention of the petitioners is concerned, the same in the matter before the Honble High Court was totally different from present one, as in all those cases cited by the petitioners [2007 (2) Cur L.J. (HC), 1999 (1) SLC 343 (HC)] the mutation was attested in cases covered under rules 27 to 29 of the Rules, read with section 104(3) of the Act, whereas present case is covered under rules 21 and 25 of the Rules read with section 104(1) & (2) of the Act. 11. Regarding the last issue, the record clearly shows that prior to the mutations in dispute (No. 338 and 339), two mutations No.324 and 325 were entered in compliance to the order of the Land Reforms Officer, Shahpur and same were rejected by the A.C. IInd Grade attested the fresh mutations qua same land and in pursuance of same order without taking into consideration the earlier mutation Mutations are attested/rejected by the Revenue Officers in quasi judicial capacity, after affording proper opportunity of being heard to all the interested parties and such orders passed on mutation can only be reviewed after obtaining prior approval of the competent authority. From the record it reveals that in the instant case, no approval of the higher authority has been sought and mutations No. 338 and 339 have been attested even without taking into consideration the earlier mutation no. 324 and 325. Hence, I agree with the contention of the Ld. Counsel for the petitioners in this behalf that the mutations No. 338 and 339, are illegal and as such same are hereby quashed. 12. Regarding the issue raised by the Id. Counsel for the petitioner, qua limitation, the same does not have any relevance at this stage as the mutations No. 338 and 339 have been ordered to be quashed. 13. In view of above discussion the impugned orders dated 7th 2011 passed by the Commissioner, Shimla passed under the provisions of the Act are also quashed. The Revision petition is accordingly disposed of with the direction to the Assistant Collector IInd Grade to review the mutations 324 and 325, if so required and this order may be deemed as the necessary approval to review the orders dated 23.8.1999 passed on mutations No. 324 and 325. 14. Order be communicated to the parties. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.