Himachal Pradesh High Court
Between vs State Of Punjab & Ors on 24 August, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
.
ON THE 24th DAY OF AUGUST, 2022.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE VIRENDER SINGH
CIVIL WRIT PETITION No. 3105/2022
BETWEEN:-
LAIQ RAM SHARMA, AGED 69 YEARS,
S/O LATE SH. ATMA RAM SHARMA,
RESIDENT OF VILLAGE DAURA, P.O. JAIS,
TEHSIL THEOG DISTRICT SHIMLA.
.....PETITIONER
(BY MR. HAMENDER SINGH CHANDEL, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (REVENUE)
TO THE GOVT. OF HIMACHAL PRADESH.
2. ASSISTANT COLLECTOR (FIRST GRADE),
TEHSIL THEOG, DISTRICT SHIMLA.
3. SH. DEEP RAM SHARMA,
S/O LATE SH. ATMA RAM SHARMA,
RESIDENT OF VILLAGE DAURA,
P.O. JAIS, TEHSIL THEOG DISTRICT SHIMLA.
...RESPONDENTS
(MR. ASHOK SHARMA, A.G. WITH MR. RAJINDER
DOGRA, SR. ADDL. A.G., MR. VINOD THAKUR, ADDL.
A.G., MR. BHUPINDER THAKUR, MR. YUDHBIR SINGH
THAKUR, DY.A.GS. AND MR. RAJAT CHAUHAN, LAW
OFFICER FOR R-1 & R-2).
(MR. SANJAY JASWAL, ADVOCATE FOR R-3)
____________________________________________________________
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2
This petition coming on for admission after notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan,
.
passed the following:
ORDER
The plaintiff filed a suit No. 262/1 of 86, in the court of learned Sub Judge, Theog, which was decreed as per compromise vide judgment and decree dated 18.3.1987.
However, it appears that thereafter respondent No.3 started disputing the judgment and decree constraining the petitioner to submit an application before the revenue authorities seeking entry of mutation, incorporating therein judgment and decree.
2 The Tehsildar, Theog, rejected the application, that too, by issuing a letter dated 17.6.2021, relevant text whereof reads as under:-
"िवषय उपरो पर आपसे ा आवेदन प िदनांक 24.09.2020 के स भ म सू िचत िकया जाता है िक आपने माननीय ायलय सब जज िठयोग ारा पा रत आदे श बाद सं ा 262/1 ऑफ 1906 िदनां क 18.03.1967 लगभग अ ा 34 वष बाद ुत िकए है । िजससे यह है िक िनयमानु सार इनकी वैधता समा हो चुकी है। साथ ही, इस अविध म कई बार राज अिभलेख का नवीनीकरण िकया जा चु का है। इसके अित र ी दीपराम शमा पु . ी आ ा राम शमा िनवासी गां व दावड़ा, तहसील िठयोग, िजला िशमला ारा भी उ आदे शों का अमल न करने बारे अपना आवे दन इस कायालय म ुत िकया गया है । इस कार वतमान म माननीय ायालय सब जज िठयोग के ारा ::: Downloaded on - 26/08/2022 20:01:56 :::CIS 3 पा रत आदे श वाद सं ा 262/1 ऑफ 1986 िदनां क 18.03.1987 का अमल राज अिभलेख म िकया जाना वािजब न है िफर भी यिद .
आप उ आदे श का अमल राज अिभलेख म करवाना चाहते है तो
आपको सु झाव िदया जाता है िक आप स म माननीय ायालय से इस
बारे नवीन आदे श ा कर इस कायालय म ु त कर।"
3 The petitioner thereafter submitted a
representation requesting the Tehsildar to pass an order in accordance with law, however, the Tehsildar did not respond, constraining him to file the instant petition for grant of following substantive reliefs:
"1. That the impugned letter dated 17.6.2021 (Annexure P-8) may be held illegal and hence may be quashed and set aside.
2. That the respondent No. 2 may be directed to enter mutation in the revenue record in terms of the application Annexure P-3 filed by the petitioner.
4 Respondent No.3 has contested the petition by filing reply, wherein factum of the judgment and decree has not been denied, however it is claimed that since the claim of the petitioner is barred by limitation, as prescribed under article 136 of the Limitation Act, therefore, the revenue authorities were well within their right in rejecting the request made by the petitioner for attestation of mutation.::: Downloaded on - 26/08/2022 20:01:56 :::CIS 4
5 In addition to above, respondent No. 3 has also sought to draw support from paras 8.1 to 8.57 and 8.63 of .
the H.P. Land Records Manual to contend that the application submitted by the petitioner for attestation of mutation after such a long lapse of time was rightly rejected by the revenue authorities.
6 We have heard the learned counsel for the parties and have also gone through the material placed on record.
7 In order to answer the question, as raised in this petition, it would be relevant to refer to Sections 35, 39 and 40 of the H.P. Land Revenue Act, 1954, (for short, "the Act") which are reproduced as under:-
"35. Making of that part of the 8[periodical] record which relates to land owners [etc.] assignees of revenue and occupancy tenants.-
(1) Any person acquiring by inheritance, purchase, mortgage, gift or otherwise, any right in an estate as a land-owner [etc.] assignee of land revenue, or tenant having a right of occupancy, shall report his acquisition of the right to the patwari of the estate. (2) If the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the Patwari.
(3) The Patwari shall enter in his register of mutations every report made to him under sub-section (1) or sub-::: Downloaded on - 26/08/2022 20:01:56 :::CIS 5
section (2) and shall also make an entry therein respecting the acquisition of any such rights as aforesaid which he has reasons to believe to have .
taken place, and of which a report should have been made to him under one or other of those sub-sections and has not been so made.
(4) No Revenue Court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession until such person has made the report required by this section.
(5) A Revenue Officer shall from time to time inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which under the foregoing sub-sections, report should have been made to the patwari and entry made in that register and shall in each case make such order as he thinks fit with respect to the entry in the periodical record of the right acquired. (6) Such an entry shall be made by the insertion in that record of a description of the right acquired and by the omission from that record of any entry in any record previously prepared which by reason of the acquisition has ceased to be correct.
(7) The Revenue Officer shall afford an opportunity of being heard to all the interested parties and also all the co-sharers in a joint holding in a mutation proceedings. After proper identification of the parties he shall get affixed signatures of all the parties present. If any party is illiterate, then the Revenue Officer shall get the thumb impression of such party affixed on the foil (Parat Sarkar) of the mutation.
::: Downloaded on - 26/08/2022 20:01:56 :::CIS 639. Mutation fees.- (1) The State Government may fix a scale of fees for all or any classes of entries in any record or register under this Chapter and for copies of .
any such entries.
(2) A fee in respect of any entry shall be payable by the person in whose favour the entry is made.
40. Penalty for neglect to report acquisition of any right referred to in section 35.- Any person neglecting to make the report required by section 35 within three months from the date of his acquisition of a right referred to in that section shall be liable, at the discretion of the Collector to a fine not exceeding five times the amount of the fees which, would, have been payable according to the scale fixed under the last foregoing section if the acquisition of the right had been reported immediately after its accrual.
8 As per scheme of the Act, any person, who acquires any right in an estate, in a manner as provided under Section 45 of the Act, is required to report to the Patwari of the estate. The Patwari, in turn, is required to enter in his register of mutations every report made to him and is further required to make an entry therein respecting the acquisition of any such rights, which he has reason to believe to have taken place. The revenue Officer from time to time has to enquire into the correctness of all entries in the register of mutations and into all such acquisitions. In case of ::: Downloaded on - 26/08/2022 20:01:56 :::CIS 7 dispute between the parties, the procedure provided under Section 37 of the Act has to be followed.
.
9 Section 39 of the Act provides that the State Government may fix a scale of fees for all or any classes of entries in any record or register and for copies of any such entries and fees has to be paid by the person in whose favour the entry has been made.
10Section 40 of the Act, which is extremely relevant for our purpose, provides that if a person neglects to make the report required by Section 35 of the Act within three months from the date of his acquisition of a right referred to in that section, then he shall be liable, at the discretion of the Collector, to a fine not exceeding five times the amount of a fee, which, would have been payable according to the scale fixed under Section 39 of the Act.
11 Thus, from the plain reading of the provisions of the Chapter providing for procedure, for making the records starting from Sections 35 to 41 of the Act, it is clear that a person, who acquires any right in the property is required to report to the Halka Patwari, as provided under Section 35 of the Act within three months of such acquisition of his rights, otherwise, he was only to be penalized by the Collector and ::: Downloaded on - 26/08/2022 20:01:56 :::CIS 8 the penalty would be more than five times the amount of fee, as prescribed under Section 39 of the Act, which has to be .
paid by the person seeking entry in the register of mutations of acquisition of his right, but there is no provision whatsoever that after acquisition of right, mutation cannot be sanctioned or can be refused, that too, on the ground of delay.
12the Similar issue came up for consideration before Punjab and Haryana High Court in Mehar Singh vs. State of Punjab & ors., 2011 1 Land LR 580, wherein the Court has held that an application for entering a mutation on the basis of a Civil Court decree, particularly where the decree is declaratory, cannot be refused on the ground of delay because such an application cannot be equated with execution of a decree. It was further observed that a revenue entry neither confer nor divest a party of its title to property and a revenue officer cannot refuse to enter a mutation where the declaratory decree sets at rest proprietary and/or possessory rights of parties.
13 Similar reiteration of law can be found in the judgment rendered by the Single Judge of Punjab and Haryana High Court in Kirpal Singh & ors. vs. Financial ::: Downloaded on - 26/08/2022 20:01:56 :::CIS 9 Commissioner (Revenue) Punjab and ors., 2016(1) RCR (Civ.) 623 = 2016 (181) PunLR 131.
.
14 As regards reliance placed by respondent No.3 on provisions of Article 136 of the Limitation Act, and paras 8.1 to 8.57, 8.63 of the Himachal Land Records Manual, the same is clearly misplaced and these provisions are not at all applicable to the facts of the instant case.
15Adverting to the provisions of the Limitation Act, the same cannot apply to the facts of the instant case, which is otherwise covered and required to be determined in terms of Sections 35 to 41 of the Act.
16 Now coming to the provisions of H.P. Land Records Manual, none of the aforesaid provisions are neither attracted nor applicable being in the nature of executive instructions, which have to give way to the aforesaid statutory provisions.
17 Lastly and more importantly, the Tehsildar, Theog has no jurisdiction or authority to pass an order in the nature of communication/letter and he was duty bound to have first registered the application submitted by the petitioner for attestation of the mutation in accordance with the Act and the Rules framed thereunder and was thereafter duty bound ::: Downloaded on - 26/08/2022 20:01:56 :::CIS 10 to have attested the mutation incorporating therein terms of the compromise decree, as per the request made by the .
petitioner.
18 Accordingly, the present petition is allowed and the impugned letter dated 17.6.2021, (Annexure P-8) is quashed and set aside. Respondent No.2 is directed to enter mutation in the revenue record on the basis of the application dated r to compromise decree as per request made by the petitioner vide 21.10.2020 (Annexure application(s), if any, also stands disposed of.
P-3). Pending
19 Let a copy of this order be sent to the Financial
Commissioner to the State of H.P., with a direction to issue necessary instructions to all the revenue authorities/courts to desist from passing the order(s) in the nature of letter(s) and instruction(s) as has been done in the instant case and ensure that whenever the application(s), relating to attestation of mutation or any other request, which relates to enforcement or claim of a legal right and falls within the ambit of the Act or any other similar and allied Acts, is filed, the same is duly diarized and thereafter proper file is maintained and order(s) thereupon is passed in the proper ::: Downloaded on - 26/08/2022 20:01:56 :::CIS 11 format, as otherwise incumbent upon the revenue authorities/court(s) being quasi-judicial authorities.
.
20 Since the Tehsildar, Theog, has failed to discharge his duties and functions in accordance with law and has thereby driven the petitioner to unnecessary and avoidable litigation, the Financial Commissioner is directed to take appropriate action against the erring Tehsildar including and not restricted to initiation of departmental proceedings and report compliance on 29.12.2022.
(Tarlok Singh Chauhan) Judge (Virender Singh) Judge 24th August, 2022.
(Pankaj) ::: Downloaded on - 26/08/2022 20:01:56 :::CIS