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2021 DIGILAW 468 (HP)

Mehar Singh v. State of H. P.

2021-07-28

SATYEN VAIDYA, TARLOK SINGH CHAUHAN

body2021
JUDGMENT : Satyen Vaidya, J. Since the common question of law and facts are involved in both these appeals, therefore, the same are being decided by this common judgment. 2. By way of these Letters Patent Appeals, the appellant has assailed the judgments dated 20.8.2008 passed by learned Single Judge of this Court in CWP No. 633 of 2006 and CWP No. 634 of 2006 BRIEF FACTS : 3. Petitioner filed two separate applications under Section 123 of the Himachal Pradesh Land Revenue, Act (hereinafter referred to as the ‘Act’ in short) for partition of land comprised in Khasra Nos. 2, 3, 74, 76 and 101 situated in Tikka Chalbara, Tappa Nauhangi, Tehsil Nadaun, District Hamirpur, H.P. and land comprised in Khasra Nos. 171 and 174 situated in Tikka Lahar Nauhangi, Tehsil Nadaun, District Hamirpur before the Assistant Collector 1st Grade, Nadaun in 1991. Both the cases i.e. 36/91 & 44/91 were proceeded simultaneously. The mode of partition were framed on 23.05.1992 and final partition were sanctioned by Assistant Collector 1st Grade, Nadaun on 22.04.1994 4. Predecessors-in-interest of respondents No. 2 to 4 and respondents No. 5(i) to (viii) filed separate appeals i.e. 10 of 1994 & 27 of 1993 before the Collector Hamirpur under Section 14 of the Act against the orders dated 22.04.1994 passed by Assistant Collector 1st Grade, Nadaun. The appeals were dismissed by the Additional District Magistrate, Hamirpur exercising the powers of Collector under the Act on 01.03.1995. Sh. Shambu and Sh. Sita Ram, the predecessors-in-interest of respondents No. 2 to 4 and respondents No. 5(i) to (viii) filed revision petition Nos. 65 of 95 & 64 of 95 under Section 17 of the Act before Commissioner, Mandi Division against the order dated 01.03.1995 passed by Collector, Hamirpur. Commissioner Mandi Division dismissed the revision petition Nos. 435/96 & 436/96 on 22.08.1996. Sh. Shambu and Sh. Sita Ram filed further revision before the Financial Commissioner (Appeals) Himachal Pradesh, against the order dated 22.08.1996 passed by Commissioner, Mandi Division. The Financial Commissioner (Appeals) accepted the revision petitions on 05.05.2006 and directed the Assistant Collector 1st Grade to keep in view classification of land and valuation thereof while finalizing the partition proceedings to ensure that justice is done to both the parties. 5. The Financial Commissioner (Appeals) accepted the revision petitions on 05.05.2006 and directed the Assistant Collector 1st Grade to keep in view classification of land and valuation thereof while finalizing the partition proceedings to ensure that justice is done to both the parties. 5. Appellant assailed the orders dated 05.05.1996 passed by the Financial Commissioner (Appeals) before this Court by filing CWP No. 633 of 2006 and CWP No. 634 of 2006 under Articles 226/227 of the Constitution of India. Learned Single Judge of this Court dismissed both petitions vide separate judgments dated 28.08.2008 with the direction to the Assistant Collector 1st Grade to carry out the partition strictly as per mode of partition drawn on 23.05.1992, within a period of 10 weeks from the date of judgments. 6. The appellant has laid challenge to the judgment passed by learned Single Judge mainly on the following grounds : (a) Scope of interference in the writ petition was to examine only ground as set-up in the writ petition and there was no scope to travel beyond. Learned Single Judge could have examined only the legality and validity of the order passed by the Financial Commissioner. (b) Learned Single Judge has taken a wrong view of the whole matter, in view of the fact that the parties had raised no objection before Assistant Collector 1st Grade on 22.04.1994 and presumption was attached to such orders. (c) The learned Single Judge could not have gone into partition proceedings and his jurisdiction was confined only to decide the question as to whether the order of Financial Commissioner was lawful or not. 7. At the time of hearing of the matter, learned Senior Advocate representing the appellant has canvassed the preposition that the second revision under the Act was not maintainable. 8. Per contra, learned counsel for the respondents has made specific submissions that writ petition filed by the appellant was not maintainable and under the given facts of the case, writ of Certiorari could not be issued. The judgments passed by learned Single Judge have been supported on behalf of the respondents on all counts. 9. We have heard learned counsel for the parties and have gone through the records including the writ record of CWP Nos. 633 of 2006 and 634 of 2006. 10. The judgments passed by learned Single Judge have been supported on behalf of the respondents on all counts. 9. We have heard learned counsel for the parties and have gone through the records including the writ record of CWP Nos. 633 of 2006 and 634 of 2006. 10. The appellant has laid challenge to the impugned judgment on the ground that the orders dated 05.05.1996 passed by Financial Commissioner (Appeals) could not be sustained by the writ Court as the same were without jurisdiction. As per appellant, Financial Commissioner (Appeals) did not possess jurisdiction to entertain the second revision under the Act. 11. The revisional powers are conferred by Section 17 of the Act, which reads as under: - “17. Power to call for, examine and revise proceedings of Revenue Officers. - (1) The Financial Commissioner may at any time call for the record of any case pending before [or disposed of by] any Revenue Officer subordinate to him. (2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer under his control. [(3) If in any case in which a Commissioner or Collector, has called for a record, is of the opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Financial Commissioner. (4) The Financial Commissioner may in any case called for by himself under sub-section (1) or reported to him under sub-section (3), pass such order as he thinks fit: Provided that he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate Revenue Officer and effecting any question of right between private persons without giving those persons an opportunity of being heard.]” 12. The reading of above said provision reveals that the revisional powers of Financial Commissioner under the Act are not circumscribed. These powers are free from any fetters as he can call for the records of any case pending before (or disposed of) by any Revenue Officer subordinate to him. Section 7 of the Act defines classes of Revenue Officers as under: - “7. These powers are free from any fetters as he can call for the records of any case pending before (or disposed of) by any Revenue Officer subordinate to him. Section 7 of the Act defines classes of Revenue Officers as under: - “7. Classes of Revenue Officers.– 7[(1) There shall be the following classes of Revenue Officers, namely- (a) the Financial Commissioner; (b) the Commissioner; (c) the Collector; (d) the Assistant Collector of the first grade; and (e) the Assistant Collector of the second grade.] (2) The Deputy Commissioner of a district shall be the Collector thereof. (3) The State Government may appoint any Assistant Commissioner, 1[XXXXXXX] or Tehsildar to be an Assistant Collector of the first or of the second grade, as it thinks fit, and any Naib-Tehsildar to be an Assistant Collector of the second grade. (4) Appointment under sub-section (3) shall be by notification and may be of a person specially by name or by virtue of his office or of more persons than one by any description sufficient for their identification. (5) Subject to the provisions of this Act, the jurisdiction of the Financial Commissioner extends to the whole of the Himachal Pradesh and of the Commissioners and of the Collectors and Assistant Collectors to the divisions and districts respectively, in which they are for the time being employed. 13. Section 8 of the Act provides that there shall be one or more Financial Commissioners to be appointed by the State Government. The conjoint reading of Section 7(v) and 8(i) of the Act leaves no manner of doubt that the Financial Commissioner holds the highest authority amongst the ranks of Revenue Officers and that is why, his revisional powers under Section 17 of the Act are unqualified. 14. Further the perusal of Section 17(iii) of the Act provides that in case the Commissioner after calling for the records of any revenue Court subordinate to him is of the opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereto for the orders of the Financial Commissioner. It is thus evident that in exercise of revisional jurisdiction by the Commissioner, he cannot modify or reverse the orders of his subordinate revenue officers and such powers also vests in the Financial Commissioner. 15. The power of revision is creation of statute. It is thus evident that in exercise of revisional jurisdiction by the Commissioner, he cannot modify or reverse the orders of his subordinate revenue officers and such powers also vests in the Financial Commissioner. 15. The power of revision is creation of statute. In order to assess the scope and extent of the revisional power of an authority emanating from a particular statute, the powers of revision provided under such statute can only be looked into and there cannot be any universal principles of law for assessing the extent and scope of revisional power. 16. In the case in hand, the revisional powers exercised by the Financial Commissioner (Appeals) were under Section 17 of the Act and there is nothing in the Act to hold that Financial Commissioner (Appeals) had acted without jurisdiction. The plea raised by the appellant is answered accordingly. A Coordinate Bench of this Court in LPA 184 of 2007 titled Charan Dass deceased through LRs Versus Subhadra Devi and Others decided on 23.11.2016 had occasion to deal with the identical proposition. Placing reliance upon Gurudassing Nawoosing Panjwani Versus State of Maharashtra and others reported in 2015 AIR SCW 6277, it was held that Financial Commissioner had jurisdiction under section 17 of the Himachal Pradesh Land Revenue Act to entertain second revision petition. 17. Learned Senior Advocate representing the appellant has also tried to persuade this Court by raising an argument in alternative that, even if. Financial Commissioner (Appeals) had the jurisdiction, his order could not be sustained by writ court having been passed in excess of jurisdiction. It has been submitted that the Financial Commissioner (Appeals) had limited revisional jurisdiction. He could not set aside the findings of fact recorded by the revenue officers below without such findings being perverse. In support of this submission, learned Senior Advocate has relied upon the judgments of the Hon’ble Supreme Court titled as Mohd. Inam vs. Sanjay Kumar Singhal and others, reported in 2020 (7) SCC 327 , titled D. Sasi Kumar vs. Soundararajan reported in 2019 (9) SCC 282 , titled Ambadas Khanduji Shine and others vs. Ashok Sadashiv Mamurkar and others reported in 2017 (14) SCC 132 and titled The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another vs. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, reported in AIR 1973 SC 76 . 18. 18. The judicial precedents pressed into service on behalf of appellant reiterate the settled proposition of law with respect to revisional powers of authorities/tribunals/courts under different statutes. Similar reiteration has been made In Charan Dass deceased through LRs Versus Subhadra Devi and Others supra where it has been held that the revisional powers under Section 17 of the Act are akin to powers under section 115 of the Code of Civil Procedure. Such powers cannot be used to upset findings of facts recorded by authorities below and have to be exercised with care and caution only to examine the orders on the touch stone of legality and not on the question of facts unless it is found that the orders are perverse and factually incorrect. 19. With due deference to the above noted settled legal position, we find that the appellant cannot avail its benefit for the reasons that orders dated 04.03.1995 passed in Case Nos. 27 of 1993 & 10 of 1994 by the Collector Hamirpur and order dated 22.08.1996 passed by the Commissioner Mandi, Division Mandi in Case Nos. 64/95 & 65/95 reveal that none of the authorities had taken care to make any reference to the records without which it is hard to understand as to how the said authorities could have appreciated the real grievance of the persons preferring the appeal or revision, as the case may be, before them. 20. The perusal of impugned judgment, however, reflects that Sh. Shambu and Sh. Sita Ram, predecessors-in-interest of respondents No. 2 to 4 and 5(i) to (viii) had been raising objections at every step, whereas, neither Collector Hamirpur nor the Commissioner Mandi Division had made any effort to make reference to such objections. Any adjudication by the said authorities without looking into the details of such objections and consideration thereon suffer from perversity. 21. Applying the general principles of revisional powers as discussed above to the case in hand, the order of Financial Commissioner (Appeals) cannot be said to be perverse, in view of the fact that firstly the orders of Collector and Commissioner Mandi Division were perverse and required interference for the reasons recorded above and secondly Financial Commissioner (Appeals) had not decided any substantive rights of the parties. The only direction to the Assistant Collector 1st Grade, Nadaun was to keep in view the classification of land and valuation thereof while finalizing the partition so as to ensure that justice is done to both the parties. 22. Learned counsel for the respondents has also placed reliance on the judgment passed by Hon’ble Apex Court in 2006 (13) SCC 449 and 2020 (16) SCC 478 and has canvassed that normally, the Division Bench, while hearing Letters Patent Appeal, would not, unless there exists cogent reasons, differ from a finding of fact arrived at by the learned Single Judge. Even the Court of first appeal which is the final Court of appeal on fact may have to exercise some amount of restraint. There is no dispute about this settled position of law. We have not found anything in the judgment passed by learned Single Judge sufficient to interfere therewith. Learned Single Judge has elaborately dealt with the factual position and has arrived at findings of fact on the basis of record. The appellant has not been able to persuade us to hold that the findings of fact recorded by the learned Single Judge were wrong or perverse. In absence of which, there is no material to interfere with the judgment passed by learned Single Judge. 23. It has also been submitted on behalf of the appellant that writ Court was not justified to travel beyond the scope of grounds as set-up in the writ petition. The argument so raised deserves rejection. The grounds raised in the writ petition were general in nature and the learned Single Judge while deciding CWP No. 633 of 2006 and CWP No. 634 of 2006 has taken pains to consider the matter ornately by meticulously scanning the records, which exercise none of the revenue officers had done. Learned Single Judge has specifically held that the order passed by the Financial Commissioner sans details but the conclusion drawn by him was correct. 24. It has further been asserted on behalf of the appellant that order dated 22.04.1994 finalizing the partition was passed by the Assistant Collector 1st Grade and at the time of its passing, no objections were raised by either of the parties as recorded in the said order itself. Learned Single Judge, after going through the records, has found such submissions to be incorrect. Learned Single Judge, after going through the records, has found such submissions to be incorrect. According to records, the predecessors-in-interest of respondents No. 2 to 4 and 5(i) to (viii) have been making objections at various stages including the objection to the effect that their consent as recorded in the order dated 22.04.1994 was incorrectly recorded. In view of the fact that records of the case proved otherwise, the presumption, if any, to the order dated 22.04.1994 passed by the Assistant Collector 1st Grade, Nadaun stood rebutted. 25. We may place it on record that the appellant has not been able to answer the pointed query from this Court that what prejudice was caused to the appellant by the impugned judgment or order of Financial Commissioner, when the mode of partition suggested between the parties was neither modified nor set aside. The substantive rights of the parties were not at all affected. It was only a direction to the Assistant Collector 1st Grade to finalize the partition proceedings strictly as per mode of partition drawn on 23.05.1992. The appellant has not been able to show that, in fact, the final partition drawn on 24.04.1994 was strictly in accordance with the mode of partition. It is trite that there cannot be any deviation from the mode of partition suggested between the parties having attained finality and the final partition has to follow such mode in letter and spirit. 26. Before parting, we consider necessary to place it on record that present case is the classical example which sets out tactics being adopted by litigants to prolong the life of litigation beyond reasonable limits with a purpose to deny the adversary benefits of his lawful due. This litigation is almost thirty years old and still without any result. Generation has passed, but it could not enjoy the fruits of their own property. Notwithstanding the fact that the Financial Commissioner (Appeals) passed order dated 5.5.2006 and directed the Assistant Collector 1st Grade only to draw the final partition by taking into consideration classification and value of land, the appellant preferred to assail it before writ court and further in appeal before this Court and the process has consumed more than fifteen years. 27. In view of the discussion made hereinabove, no fault can be found in the impugned judgment. Accordingly, both the appeals are dismissed with cost of Rs. 27. In view of the discussion made hereinabove, no fault can be found in the impugned judgment. Accordingly, both the appeals are dismissed with cost of Rs. 10,000/- to be paid to the respondents. Pending application(s), if any. are also disposed of accordingly.