Himachal Pradesh High Court
Sh.Gian Chand Sharma vs State Of H.P. & Others on 28 September, 2016
Bench: Chief Justice, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No.239 of 2010.
Reserved on: 21.09.2016
.
Pronounced on: September 28, 2016.
Sh.Gian Chand Sharma ..........Appellant.
Versus
State of H.P. & others .......Respondents.
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
of
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr.R.D. Kaundal, Advocate.
rt
For the Respondent: Mr.Shrawan Dogra, Advocate
General with Mr.Anup Rattan &
Mr.Romesh Verma, Additional
Advocate General, for respondents
No.1 to 3.
Mr.Bhuvnesh Sharma, Advocate, for
respondents No.4 and 5.
Mansoor Ahmad Mir, C.J.
This Letters Patent Appeal is directed against the judgment and order, dated 22nd June, 2007, passed by a learned Single Judge of this Court in CWP No.29 of 2004, titled Gian Chand Sharma vs. State of H.P. and others, whereby the writ petition filed by the petitioner/appellant herein came to be dismissed, and against the order, dated 30th June, 2010, passed in Civil Review No.50 of 2008, titled Gian Chand vs. State of H.P. and others, which was also dismissed by the learned Single Judge.
::: Downloaded on - 15/04/2017 21:18:57 :::HCHP...2...
2. From the perusal of the facts of the case, it appears .
that Thakur Dayal, predecessor-in-interest of respondents No.4 and 5 (Roshan Lal and Jagdish Chand, respectively), filed appeal under Section 30(3) of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, (for short, the Act), before of the Settlement Officer against the order of the Consolidation Officer, Hamirpur, dated 24th June, 1991. The said appeal was rt allowed by the Settlement Officer, vide order, dated 1st June, 1995.
Feeling aggrieved, the petitioner/appellant filed revision petition before the Director of Consolidation of Holdings, which came to be dismissed vide order dated 17th October, 2002, constraining the petitioner to file writ petition, being CWP No.450 of 2003, titled Gian Chand Sharma vs. State of H.P. and others, before this Court, which was also dismissed vide order dated 30th July, 2003, on the ground that the petitioner had not annexed the copies of the orders passed by the Consolidation Officer and the Settlement Officer.
3. Thereafter, the petitioner again filed CWP No.29 of 2004 on 4th January, 2004, out of which the instant Letters Patent Appeal arises. The petitioner, by the medium of the writ petition, prayed for quashment of the orders, dated 1st June, 1995 and 17th October, 2002, passed by the Settlement Officer and the Director, Consolidation of Holdings, respectively. It was also prayed that ::: Downloaded on - 15/04/2017 21:18:57 :::HCHP ...3...
action be drawn against the defaulting officers, on the grounds .
taken in the memo of writ petition.
4. The writ petition was resisted by the respondents by filing replies and the petitioner chose not to file any rejoinder. Thus, the averments contained in the replies, filed by the respondents, of have remained un-rebutted.
5. Respondents No.1 and 3, in paragraphs 4 and 5 of their rt joint reply, have given details as to what were the facts and reasons, which were made the basis by the Settlement Officer in passing the order. It is apt to reproduce paragraphs 4 and 5 of the said reply hereunder:
"Para No.4. Denied. That from the perusal of the record and order passed by the Settlement Officer, Consolidation of Holdings, Hamirpur dated 1.6.1995, it transpires that Khasra Number 107(Old) falls in the center of the land of respondents No.4 and 5. Thus, the Settlement Officer (consolidation of Holdings) has rightly allotted Khasra number 107(old) to Shri Thakur Dyal, predecessor in interest of Shri Roshan Lal and Jagdish Chand, present respondents No.4 and 5 respectively by consolidating it as per the provisions of the Consolidation scheme and as such no illegality or impropriety has been done to the present petitioner. Hence, this contention of petitioner is wrong and baseless. Para No.5. Denied. That there is no mention of any kind of orchard or residential house of the present petitioner ::: Downloaded on - 15/04/2017 21:18:57 :::HCHP ...4...
in the old Khasra Number 107 in the order of the .
Consolidation Officer. Moreover, the process of 'Kayami abadi was competed in the year 1984 on the aforesaid land of village in question and type of this land has been classified as 'Khadetar'. From the perusal of the Annexure P-2 it is clear that in the year 1989-90, the land of Khasra Number 107(old) has been classified as 'Khadetar'. Moreover, the Settlement of Officer (Consolidation of Holdings) has applied his judicious mind while deciding the appeal under Section 30(3) of the H.P. Holdings (Consolidation and Prevention of rt Fragmentation) Act, 1971 by taking back the excess of 0-4 Marla land from the present petitioner and making good the deficiency of Shri Thakur Dyal, predecessor in interest of Shri Roshan Lal. Moreover, Khasra Number 107 (old) falls in the Center of Khasra Number 108 and 869/116(old), which were possessed and already stood allotted to the predecessor in interest of Respondent Nos.4 and 5. Hence, the contentions raised by the petitioner in this para are vehemently denied."
6. Respondents No.4 and 5 (Roshan Lal and Jagdish Chand, respectively), in their joint reply to the writ petition, have specifically averred that the land was allotted in favour of the writ petitioner/appellant as per his suitability from the land of his brother Sita Ram, who was having excess land in his possession. It was further averred that the petitioner has not arrayed said Sita Ram as party in the writ petition.
::: Downloaded on - 15/04/2017 21:18:57 :::HCHP...5...
7. From the discussion made hereinabove, it becomes .
clear that the order, dated 1st June, 1995, passed by the Settlement Officer, is based on the record as well as factual position existing on the spot. The Writ Court, after examining the pleadings of the parties, has rightly held that the Settlement Officer of and the Director have committed no jurisdictional error or procedural irregularity.
8. rt The orders made by the revenue officers cannot be set aside in writ proceedings unless it is pleaded and shown that the revenue officers have committed any jurisdictional error or procedural mistake.
9. While going through the orders made by the Settlement Officer and the Director, one comes to inescapable conclusion that the orders were made by the revenue authorities keeping in view the revenue record, the factual position existing on the spot read with the law occupying the field.
10. It is settled principle of law that question of fact cannot be gone into in writ proceedings.
11. The apex Court, in case titled Bhuvnesh Kumar Dwivedi versus M/s. Hindalco Industries Ltd., reported in 2014 AIR SCW 3157, held that question of fact cannot be interfered with by the Writ ::: Downloaded on - 15/04/2017 21:18:57 :::HCHP ...6...
Court. It is apt to reproduce paragraph 18 of the said judgment .
herein.
"18. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the of legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour rt Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts.
The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellant"
12. This Court in a series of cases, being CWP No. 4622 of 2013, titled as M/s Himachal Futuristic Communications Ltd. vs. State of H.P. and another; LPA No. 23 of 2006, titled as Ajmer Singh versus State of H.P. and others, decided on 21st August, 2014; LPA No. 125 of 2014, titled as M/s. Delux Enterprises versus H.P. State Electricity Board Ltd. & others, decided on 21st October, 2014; and LPA No.143 of 2015, titled Gurcharan Singh (deceaed) through his LRs vs. State of H.P. and others, decided on 15th December, 2015, while relying upon the latest decision of the Apex Court in Bhuvnesh Kumar ::: Downloaded on - 15/04/2017 21:18:57 :::HCHP ...7...
Dwivedi versus M/s Hindalco Industries Ltd., reported in 2014 AIR .
SCW 3157, has held that question of fact cannot be interfered with by the Writ Court. However, such findings can be questioned if it is shown that the Tribunal/Court has erroneously refused to admit admissible and material evidence or has erroneously admitted of inadmissible evidence which has influenced the impugned findings.
13. This Court has in LPA No.485 of 2012, titled as Arpana rt Kumari vs. State of H.P. and others, decided on 11.08.2014, has held that orders passed by the Revenue Authorities cannot be challenged in a writ petition unless the orders are made without jurisdiction or are passed in breach of mandatory provisions of law or have caused miscarriage of justice. It is apt to reproduce paragraphs 3 and 4 of the said judgment hereunder:
"3. The Writ Court after examining all the orders and the averments contained in the writ petition came to the conclusion that the orders made were legal one and had been passed by the competent Authorities while exercising the jurisdiction vested with them. While going through the impugned judgment, it also came to our notice that when the Writ Court was about to dismiss the writ petition, learned counsel for the writ petitioner-appellant sought permission to withdraw the writ petition with liberty to file a civil suit, which prayer was declined by the Writ Court.::: Downloaded on - 15/04/2017 21:18:57 :::HCHP
...8...
4. The orders, impugned in the writ petition, have been .
passed by the Authorities under the provisions of H.P. Tenancy and Land Reforms Act, 1972, cannot be made subject matter of the writ petition unless the orders are made without jurisdiction or having been passed in breach of the mandatory provisions of law or have caused miscarriage of justice. In the instant case, the Authorities below have of recorded a finding of fact that the writ petitioner/appellant has violated the provisions of the H.P. Tenancy and Land Reforms Act, 1972. Thus, the writ petition was not rt maintainable."
14. It is not the case of the writ petitioner that inadmissible evidence was recorded and on the basis of such evidence, the orders were passed by the revenue authorities.
15. From the record of the writ petition, it also transpires that the petitioner, earlier also, had filed a writ petition (CWP No.450 of 2003), challenging the orders of the Settlement Officer and the Director, came to be dismissed vide order dated 30th July, 2003. It is apt to reproduce operative portion of the order, dated 30th July, 2003, hereunder:
"Though the petitioner has assailed the orders of the Consolidation Officer as well as Settlement Officer (Consolidation of Holdings) passed in appeal, the copies of such orders have not been annexed with the present writ petition. In the absence of the copies of the orders, ::: Downloaded on - 15/04/2017 21:18:57 :::HCHP ...9...
correctness or otherwise of the impugned orders cannot be .
gone into and on this short ground alone the present writ petition is liable to be dismissed and is accordingly dismissed."
16. From the above, it is clear that the earlier writ petition filed by the petitioner was dismissed on the ground that the of petitioner had not annexed the orders impugned in the said writ petition. While dismissing the writ petition, no liberty was provided to the petitioner to file fresh writ petition for the same cause of rt action. The petitioner has not questioned the order, dated 30th July, 2003 passed in CWP No.450 of 2003. Thus, the second writ petition filed by the petitioner/appellant herein on the same cause of action was not maintainable. Perhaps, the said fact was not brought to the notice of the learned Single Judge.
17. Having said so, there is no merit in the appeal filed by the appellant and the same is dismissed. Consequently, the judgment and the order passed by the learned Single Judge, dismissing the writ petition and the review petition, are upheld.
(Mansoor Ahmad Mir) Chief Justice.
September 28, 2016. (Sandeep Sharma)
(Tilak) Judge
::: Downloaded on - 15/04/2017 21:18:57 :::HCHP