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2017 DIGILAW 57 (HP)

Gulzara Singh v. Ishar Singh

2017-01-12

NARINDER CHAUHAN

body2017
ORDER Narinder Chauhan, I.A.S. —This revision petition has been preferred under section 17 of the H.P. Land Revenue Act, 1954(hereinafter referred to as ''the Act''), against the order dated 14.6.2011, passed by the Ld. Commissioner, Kangra Division, in Appeal No. 270/2004, whereby the appeal of the present petitioner has been dismissed bh upholding the order dated 30.06.1999, passed by the Id. Settlement Collector, Kangra in case No. 94/99/S.O., allowing the application for correction of entries filed by the respondent. 2. Brief facts of the case are that Shri Ishar Singh, present respondent filed an application on 7.8.1986,before the Settlement Collector, Kangra at Dharamshala, for correction of revenue entries (Karukans) of Khasra No 1058, carved out of old khasra no.586, situated in village Panoh, Tehsil & Distt. Una, stating therein that prior to settlement the northern line of old khasra no.586 was 29 karams and during settlement operation this line has been recorded as 32 meters, whereas it should have been 43 meters. Similarly, southern line has been wrongly measured as 26 meters whereas it should have been 39 meters. That in khasra no.765 a path has been wrongly shown whereas it should have been shown in khasra no.645, as is evident from old khasra no.585. Further, that western line of khasra no.1070 has also been shown as 21 meters whereas it should have been 14 meters, and the northern line of this khasra no should have been 48 meters instead of 44 meters. That the western line of khasra no 1066 has been shown as 9 meters whereas it should have been 7 meters, as per old khasra no.579. That due to these anomalies, the area of khasra no.1080,1059 has been increased resulting in sufficient decrease in area of khasra no. 1064 which is abadi'' of the applicant. After getting the matter enquired into through the field staff, Settlement Collector, Kangra at Dharamshala vide order dated 30.6.1999, passed in Misal No.94/99/S.O., allowed the application and ordered the correction of karukans in respect of khasra nos.1071-1072,1058,1066 and 1079. 3. 1064 which is abadi'' of the applicant. After getting the matter enquired into through the field staff, Settlement Collector, Kangra at Dharamshala vide order dated 30.6.1999, passed in Misal No.94/99/S.O., allowed the application and ordered the correction of karukans in respect of khasra nos.1071-1072,1058,1066 and 1079. 3. Feeling aggrieved with the dated 30.6.1999, of the Settlement Collector, the present petitioner filed an appeal before the Commissioner, Kangra Division, inter alia on the grounds that the order passed by the Settlement Collector has caused an irreparable loss and legal injury to the appellant (present petitioner), that the order has been passed by the lower court behind the back appellant without giving any notice and opportunity to defend his right which is against the principle of natural justice. That the appellant came to know about this order in the second week of October, 2003, when respondent threatened, to take forcible possession of the land. That on inquiry from the department and after obtaining copy of the order on 10.11.2003, he immediately filed an appeal. The Id. Commissioner, vide order dated 14.6.2011, dismissed the appeal No. 270/2004, by upholding the orders of the Collector Settlement. Hence, this revision petition has been preferred before this court on the same grounds as were taken before the Commissioner. 4. I have heard the Id. Counsel for the petitioner and the order under revision has been announced behind the back of the petitioner without giving any notice to him for 14.11.2011, because as per zimni order of the Commissioner, the date of hearing was given to the parties for 19.1.2011, and 8.6.2011, but the case was taken up on 14.6.2011, the Id. Commissioner has mentioned that one is present for appellant but in the final order it has been mentioned that arguments on behalf of parties were heard, which is itself contradictory, as such, the order of the lower courts are liable to be set aside and the matter be remanded back to the Settlement Collector for a fresh decision. 5. In reply, the respondent has argued that the Settlement Collector has rightly ordered the correction of the dimensions/karukans on the basis of report of Naib-Tehsildar and as per the record, hence, the revision petition is liable to be dismissed 6. I have considered the arguments advanced on behalf of both the parties and have gone through the record of the courts below. I have considered the arguments advanced on behalf of both the parties and have gone through the record of the courts below. On perusal of the case file of the Settlement Collector, it is disclosed that on filing an application for correction of revenue entries, the matter has been got inquired into through the Naib-Tehsildar(Settlement), who as per his report, available at page 8 of the trial court suggested correction of dimensions etc. in khasra no. 1071/1, 1072/1,764, 1058, 1071/2, 1080, 1066 and 1079.On receipt of the report, the Id. Settlement Collector has relied only upon the said report of the Naib-Tehsildar and has allowed the application vide order dated 30.6.199, without giving an opportunity of being heard to the parties. It is settled principle of law that one cannot be condemned unheard and basic principle of natural justice i.e. audi alteram partum has to be adhered to but in the instant case, the Id. Settlement Collector, has violated the basic principle of natural justice while passing order dated 30.6.1999. Further, in appeal, the Id. Commissioner has not only ignored this illegality committed by the Settlement Collector, but has himself also dismissed the appeal behind the back of the petitioner without providing an opportunity of being heard to him From perusal of the file of the Commissioner, it is evident that on 27.10 2010, the case was adjourned for 19.1.2011, but there is no zimni order of dated 19.1.2011 On perusal of the zimni order dated 14.6.2011 It appears that matte was also fixed for 8.5.2011, but there is no notice etc. available on file which indicates that the petitioner was informed for 8.6.2011 or for 14.6.2011. Hence, there is a patent error manifest on the record which error cannot be overlooked. 7. In view of the above, there is a basic impropriety/illegality having been committed by both the courts below, and as such, the present revision petition, is allowed and the orders passed by both the courts below are set aside. The matter is remanded to the Id. Settlement Collector, Kangra for fresh decision after providing an opportunity of being heard to the interested parties. 8. Order be communicated. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.