Himachal Pradesh High Court
Shri Kamal Kishore & Ors vs State Of H.P. & Ors on 9 September, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 5827 of 2010.
Judgment Reserved on 22.08.2016
Date of Decision:09.09.2016
______________________________________________________
.
Shri Kamal Kishore & Ors. ...Petitioners.
Versus
State of H.P. & Ors. ...Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
of
For the petitioners: Mr. G.D. Verma, Senior
Advocate with Mr. B.C.
Verma, Advocate.
rt
For the respondents: Mr. Rupinder Singh Thakur,
Additional Advocate General,
with Mr. Rajat Chauhan,
Law Officer, for the
respondents.
Sandeep Sharma, J.
By way of present petition filed under Article 226/227 of the Constitution of India, petitioner has prayed for the following main relief(s):-
"b) That the orders regarding cancellation of the allotment of land on lease basis as passed by the Sub Divisional Collector, Solan, dated 17.09.2008 as well as the order as passed by the Divisional Commissioner, Shimla dated 6.4.2010 may kindly be ordered to be set aside and quashed.
c) That the respondents may be restrained from interfering with the right, title and interest of the petitioners land in question and they may be restrained from dispossessing the petitioners from the property in question."
1 Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 22. Briefly stated facts as emerged from the record are that late Smt. Shanti Devi wife of late Parkash Chand predecessor-in-interest of present petitioners was allotted 10 .
bighas of land by the Gram Panchyat, Jaunaji, District Solan vide resolution No. 99, dated 9.4.1972 (Annexure P-1).
Pursuant to aforesaid allotment, late Smt. Shanti Devi cultivated the land allotted to her and also raised of construction of house and cow shed on the same. The order of allotment of land on lease by Gram Panchayat was further approved by the Tehsildar Kandaghat. Further perusal of rt Annexures P-2 to P-6 suggests that lease granted in favour of late Smt. Shanti Devi qua the land in question was renewed from time to time.
3. Careful perusal of order dated 5.8.1987 (Annexure P-6 passed by Collector, Sub Division, Solan, in case No. 73/75 suggests that matter came up before the Collector, Sub Division, Solan with regard to amount recoverable from Smt. Shanti Devi. Close scrutiny of the aforesaid order suggests that Sub Divisional Collector, Solan pursuant to the report found this case fit for further leasing out the land for the period of five years. Sub Divisional Collector, Solan fixed the lease amount at Rs. 73.40 per annum for the period from 1976 to 17.6.1981. Record further reveals that while fixing aforesaid lease amount at Rs. 73.40 per annum, report was called from the field staff, wherein, ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 3 Halka Patwari, Patwar Circle Jaunaji, reported that the land in question was assessed to land revenue at Rs. 2.66 per annum, therefore, he assessed the lease amount at Rs. 73.40 .
and this report was approved by the field kanungo on the same day. Halka Patwari also reported that Smt. Shanti Devi is a harijan by caste and she has no other land and has six children. Vide Annexure P-3, Tehsildar made a report stating of therein (i) petitioner has cultivated about 50% land (ii) Husband has deserted her (iii) constructed a house and cow shed. Accordingly, vide Annexure P-6 i.e. an order dated rt 5.8.1987, Sub Divisional Collector fixed the lease amount for the period from 17.06.1986 to 16.6.1991 at Rs. 70/-. It also emerged from the record that at the time of allotment of land in favour of late Smt. Shanti Devi, the provision of Punjab Village Common Land Act were applicable and Gram Panchayat being owner of the Shamlat land was competent to allot land by way of lease. Further perusal of Annexure P-7 suggests that predecessor-in-interest of present petitioner apprehending eviction from land in question also filed suit before learned Senior Sub Judge, Solan claiming herself to be in possession of land in suit comprising Khasra No. 310/1 measuring 10 bighas situate in mauja Kanah Bajnal Tehsil and District Solan being inhabitants of mauja Kanah Bajnal and land in suit was part of Khasra No. 1 min mauja Kanah Bajnal and as such claimed possession of proprietary body of ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 4 mauja Kanah Bajnal which was leased to the plaintiff being poor and destitute and schedule caste at a rental of Rs. 15/-.
However, fact remains that suit was dismissed.
.
4. Being aggrieved and dis-satisfied with the impugned judgment by learned trial Court, present predecessor-in-interest of present petitioner filed an appeal in the Court of Additional District Judge, Solan, laying challenge of to the judgment dated 22.10.2002 passed in Civil Suit No. 197/2 of 2001/97, which was also dismissed vide judgment dated 30.4.2003.
5. rt Record further reveals that a complaint was received by Collector, Solan, stating therein that late Smt. Shanti Devi mis-stated the facts to the Collector while seeking regularization of the lease that her husband deserted her, whereas she was living with her husband and he was employee of Railway Police and after his death she was in receipt of family pension. Consequently, Collector, Solan sought permission from the State Government to review the order for lease of land in accordance with law.
6. Perusal of Annexure P-8 suggests that Collector, Solan vide order dated 18.11.1995 granted permission to review the order of Collector, Solan dated 17.6.1976 and 5.8.1987 under Section 16 of H.P. Land Revenue Act read with Section 12 of the Act with the directions that both the affected parties be heard for their actual claim. Subsequently ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 5 vide order dated 17.9.2008, Sub Divisional Collector, Solan cancelled the allotment of lease made by Gram Panchayat, Juanji vide resolution dated 9.4.1972, subsequently entered .
in the revenue record in Khata/Khatauni No. 51/68 described as Khasra No. 340/1, measuring 10 bighas situated in Mauja Kanah-Bajnal, Tehsil & District Solan. It would be appropriate to reproduce relevant para of order passed by of Collector:-
"And whereas it was found by the Collector, Sub Division, Solan from the report of revenue filled agency placed with case file that at the time of rt allotment of land to the applicant, her husband was in serving in Railway Police as when a husband of the allottee is in Govt. service in that event no land can be allotted to anybody for which permission to review the allotment order was obtained from the Collector, Solan, which was received in this office vide No. Psh/NC/91, dated 8.11.1995. After obtaining the permission to review order, mandatory notices were sent to Smt. Shanti Devi to appears before the Collector, Sub Division Solan on 13.8.1997 and 16.9.1997 but she did not appear in this office nor did she file any reply/objection to the notices issued to her despite due knowledge. In spite of this Smt. Shanti Devi filed civil suit No. 197/2 of 2001-1997 decided on 20.10.2002 in the Hon'ble Court of Senior Sub Judge, Solan for permanent prohibitory injunction under section 38 of the Specific Relief Act, which has been dismissed. Against this order Smt. Shanti Devi filed appeal before the Hon'ble Addl. District and Sessions Judge, Solan registered as case No. 5-S/13 of 2003 which has also been dismissed vide order dated 30.4.2003. Since the husband of Smt. Shanti Devi was in Govt. service in Railway Police at the time of allotment of land and she has been getting family pension after his death which facts have also been admitted by Smt. Shanti Devi in her cross-examination before the Civil Court as held in para - 8 of the judgment of Hon'ble Senior Sub Judge, Solan and while a husband of the allottee is in Govt. service, in that events, no ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 6 land can be allotted to her, therefore, in view of my above observations the allotment of lease made by the Gram Panchayat Jaunaji vide its resolution No. 99 dated 9.4.1972 and subsequent entry made in the revenue record in Khata/Khatauni No. 51/68 described as Khasra .
No. 340/1, measuring 10 bighas situated in Mauja Kanah-Bajnal, Tehsil and District Solan is hereby cancelled."
7. Being aggrieved and dis-satisfied with the aforesaid order passed by Collector, Sub Division Solan, District Solan, present petitioners filed appeal under Section of 11 of the H.P. Village Common Land (Vesting & Utilisation) Act, 1974 laying challenge to the order dated 17.9.2008 rt passed by the Collector, Sub Division, Solan in case No. 73/75, in the Court of Divisional Commissioner, Shimla Division, Shimla. However, Divisional Commissioner, Shimla vide order dated 6.4.2010, dismissed the appeal filed by the present petitioner.
8. In the aforesaid background, present petitioner filed writ petition seeking reliefs as have been referred to here-
in-above.
9. Respondents by way of reply refuted the averments contained in the petition by stating that predecessor-in-interest succeeded in getting the lease sanctioned in her favour by suppressing the very material facts, which came to the knowledge of the respondents at very late stage and as such they cancelled the lease. Respondents while admitting that late Smt. Shanti Devi w/o late Shri ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 7 Parkash Chand was allotted 10 bighas of land by Gram Panchayat, Jauanji, District Solan, on lease basis stated that Smt. Shanti Devi had claimed that she was deserted by her .
husband, but later on factum with regard to her residing with her husband came to the fore when a complaint was filed by some social worker. Accordingly, process was initiated to cancel the allotment un-authorisedly made in favour of the of predecessor-in-interest of present petitioner. Respondents also denied the factum of making of report by the Tehsildar, acknowledging therein the factum qua desertion of Smt. rt Shanti Devi by her husband and construction of cow shed.
Respondents stated that report was called from the revenue field agency, wherein, it was reported that husband of Smt. Shanti Devi is employee in police department. Accordingly, Collector, Sub Division, Solan passed brief orders on the appearance of the lessee Smt. Shanti Devi, who asserted that she has cultivated about 50% of land, her husband has deserted her and she constructed house when this lease was regularized. Respondents stated that late Smt. Shanti Devi procured the lease in her favour by misrepresenting that her husband has deserted her. Respondents also stated that Smt. Shanti Devi also tried to mislead the Civil Courts by filing frivolous Civil Suits but ultimately those were dismissed by Courts below being devoid of merit. Respondents also stated that despite due service, late Smt. Shanti Devi failed to ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 8 appear before Collector, Sub Division, Solan and ultimately vide order dated 17.09.2008, Collector, Sub Division, Solan ordered for cancellation of the lease in respect of Smt. Shanti .
Devi in case No. 73/75. Respondents specifically refuted the allegation having been made on behalf of the petitioners that no opportunity whatsoever was afforded to the Smt. Shanti Devi before passing of order dated 17.9.2008. As per of respondents summons were issued to Smt. Shanti Devi intimating therein the hearing of the case on 13.8.1997 and 16.9.1997 but despite proper service of summons, she failed rt to appear before the Court, as a result of which, order dated 17.9.2008 was passed ex-parte.
10. In nutshell, respondents stated that since the very allotment of land in favour of late Smt. Shanti Devi was based upon mis-representation of facts, Collector, Sub Division, Solan, was well within its right to order for cancellation of allotment of land in favour of petitioner while exercising power under Section 16 of the Act.
11. Mr. G.D. Verma, Senior Counsel duly assisted by B. C. Verma, Advocate, vehemently argued that impugned order passed by Collector, Shimla, as well as, Collector, Sub Division, Solan are illegal, wrong and without jurisdiction, as such, the same deserves to be quashed and set aside. Mr. Verma, vehemently argued that respondents are estopped to cancel the order of allotment on account of their own acts, ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 9 conduct, deeds, lapses and consent. Mr. Verma with a view to substantiate his argument with regard to valid allotment in favour of petitioner made this Court to travel through the .
Annexures P-1 to P-6 to demonstrate that respondents themselves allotted 10 bighas of land to the predecessor-in-
interest of petitioner, which was further regularized from time to time. Mr. Verma while referring to the order dated 5.8.1987 of (Annexure P-6) vehemently argued that it stands duly proved on record that lease money for the period 17.6.1986 to 16.6.1991 was assessed at Rs. 70/2, which was duly rt deposited in the Govt. Treasury, Solan through Tehsildar, Solan. As per Mr. Verma, pursuant to aforesaid lease granted in favour of Smt. Shanti Devi, she developed the area in question by spending huge money. He also stated that it stands proved on record that Smt. Shanti Devi also brought this land under cultivation and raised construction of house and cow shed on the land leased out to her and as such at this belated stage, authorities cannot be allowed to cancel the lease, which was made in her favour by Gram Panchayat, Jaunaji as far as back on 9.4.1972. Mr. Verma also contended that impugned order passed by Collector, Sub Division, Solan dated 17.9.2008 is not sustainable in view of the fact that late Smt. Shanti Devi had died on 6.9.2008 i.e. prior to passing of aforesaid order dated 17.9.2008, whereby lease granted in favour of Smt. Shanti Devi was ordered to be ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 10 cancelled. Mr. Verma, forcefully contended that no order could be passed against a dead person, as such, impugned order passed against dead person is nullity and same .
deserves to be quashed and set aside. Mr. Verma strenuously argued that ground set up by respondents while cancelling the lease granted in favour of late Smt. Shanti Devi is baseless because as per respondents, petitioner failed to of disclose at the time of getting lease renewed that her husband was an government employee but fact remains that allotment of land was not made to her subject to the condition that her rt husband was not in government service. Mr. Verma also invited the attention of the Court to order passed by Divisional Commissioner, wherein he himself stated that Patwari had reported on 28.7.1983 that predecessor-in-
interest of appellants i.e. Smt. Shanti Devi had cultivated the leased land and her husband is a Government employee. Mr. Verma taking clue from the observation made by Division Commissioner argued with full vehemence that once Patwari had reported on 28.7.1983 that husband of late Smt. Shanti Devi is government employee, where was occasion for authorities to regularize the lease till 16.6.1991. Mr. Verma, also made this Court to have a glance on the summons (Annexures P-10 & P-11) allegedly issued by Sub collector to Smt. Shanti Devi asking her to put in appearance on 13.8.1997 and thereafter on 16.9.1997, to suggest that bare ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 11 perusal of summons, nowhere suggests that service was duly effected upon late Smt. Shanti Devi because process-server while effecting service has nowhere obtained signature, if any, .
of identifier, who identified daughter-in-law (Annexure P-10) and thereafter late Smt. Shanti Devi (Annexure P-11) on whom service was allegedly effected. In this regard Mr. G. D. Verma invited the attention of the Court to Section 21 of the of H.P. Land Revenue Act i.e. mode of service of summons. As per Mr. Verma, bare perusal of Section 21 of H.P. Revenue Act suggests that if service cannot be made, or if acceptance of rt service so made is refused, the summons may be served by posting a copy thereof at the usual or last known place of residence of the person to whom it is addressed. Mr. Verma also stated that aforesaid summons, nowhere suggests that copy of petition was ever enclosed therewith enabling the petitioner to suitably answer the complaint, if any, against her. Mr. Verma also invited the attention of the Court to Sections 12 & 16 of the H.P. Land Revenue Act to suggest that Collector was not competent to review the order of Collector, Solan, dated 17.9.2008 and 5.8.1997. As per Mr. Verma collector was not competent to review his own order passed under Section 16 of H.P. Land Revenue Act and as such order dated 18.11.1995 (Annexure P-8) passed by Collector, Solan deserves to be quashed and set aside being not sustainable. While concluding his arguments, Mr. Verma ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 12 also invited the attention of the Court to Section 16(b) to suggest that application for review of an order could be made within 90 days from the passing of order, or unless the .
applicant satisfies the Revenue Officer, that he/she had sufficient cause for not making the application within that period. Mr. Verma while inviting the attention of this Court to the order dated 17.6.1976, whereby lease granted in her of favour by Gram Panchayat, Jaunaji was regularized, stated that collector had no authority whatsoever under Section 16 to review its earlier order dated 17.6.1976 after 20 years and rt as such he prayed for quashing of the impugned orders dated 6.4.2010 and 17.9.2008.
12. Mr. Rupinder Singh Thakur, Additional Advocate General duly assisted by Mr. Rajat Chauhan, Law Officer supported the impugned order passed by Collector as well as Divisional Commissioner. Mr. Thakur vehemently argued that bare perusal of impugned order clearly suggests that predecessor-in-interest of petitioner had procured lease of land in her favour by mis-representation of facts and as such Collector while exercising power under Section 16 of the Land Revenue Act was well within its right to cancel the same. Mr. Rupinder Thakur vehemently argued that bare perusal of the record clearly suggests that late Smt. Shanti Devi's i.e. predecessor-in-interest of present petitioners, concealed the material facts from the Gram Panchayat, ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 13 Jaunaji at the time of procuring lease in the year 1972, because at no point of time, she disclosed that she resides with her husband, rather she stated that her husband .
deserted her and managed to procure lease of land measuring 10 bighas in her favour by suppressing material facts. While refuting the arguments having been made by Shri G. D. Verma, Mr. Thakur strenuously argued that careful perusal of of Section 16 of H.P. Land Revenue Act, empowers the Collector to review its order suo motto or on the application of any party. Mr. Thakur also stated that predecessor-in-interest of rt present petitioner despite due service failed to appear before Sub Collector and as such he was compelled to pass order dated 17.9.2008, thereby cancelling the allotment of lease made by Gram Panchayat, Juanaji in favour of late Smt. Shanti Devi. Mr. Thakur also forcefully contended that no fault, if any, can be found with the order dated 18.11.1995 passed by Collector, Solan District, wherein he granted permission to review the order of the Collector, Solan dated 17.6.1976. Mr. Thakur stated that earlier order for grant of lease in favour of predecessor-in-interest was made by the Sub Collector and, as such, Collector while exercising power under Section 16 of the Act rightly granted permission to review the orders passed by Sub Collector confirming the allotment of lease made by Gram Panchayat, Jaunaji in favour of the present petitioner. Mr. Thakur further ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 14 contended that in the year, 1991 factum with regard to mis-
representation of facts by petitioner came to the notice of the authorities by way of a complaint from social worker, .
accordingly, revenue authorities rightly initiated proceedings under Section 16 of the Act and due opportunity of being heard was afforded to the predecessor-in-interest. But despite due service, Smt. Shanti Devi failed to put in appearance of before the Sub Collector and as such order dated 17.9.2008 was passed. While concluding his argument, Mr. Thakur forcefully contended that present petition is a sheer abuse of rt law because petitioners before coming to this Court filed Civil Suit bearing No. 197/2 (Annexure P-7) in the Court of learned Civil Judge, Solan claiming herself to be in possession of land in question. He also invited the attention of the Court to Annexure P-7 i.e. copy of judgment passed by Additional District Judge, Solan to demonstrate that on same cause of action, at the first instance, petitioner approached Civil Court.
He also made this Court to peruse the impugned judgment passed by the Additional District Judge, Solan to demonstrate that claim of the petitioner was decided on merits. In the aforesaid background, Mr. Thakur prayed for dismissal of the present petition with heavy cost.
13. I have heard the learned Counsel for the parties and have carefully gone through the records.
::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 1514. Learned Additional Advocate General during arguments also made available original record pertaining to the allotment of land in favour of the petitioner.
.
15. Before adverting to the merits of the case as well as submissions having been made on behalf of both the parties, it would be appropriate to reproduce the relevant provisions of the H.P. Land Revenue Act:-
of " 7. Classes of Revenue Officers - (1) There shall be the following classes of Revenue-officers, namely : -
(a) the Financial Commissioner ;
(b) the Commissioner ;
rt © 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 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 Commissioner and of Collectors and Assistant Collectors to the divisions and districts, respectively, in which they are for the time being employed.
8. Financial Commissioner : - (1) There shall be one or more Financial Commissioners, who shall be appointed by the State Government .
(2) Where more Financial Commissioners than one have been appointed, the [State Government may make rules2 as to the distribution among them of business under this or any other Act, and by those rules require any case or class or classes of cases to be considered and disposed of by the Financial Commissioners collectively.
::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 16(3) When there is a difference of opinion among the Financial Commissioners as to any decree or order to be made in a case which they are required by rules under the last foregoing sub-section to consider, and dispose of collectively, the following rules shall apply, namely : -
.
(a) Where the case is an appeal or a case on review or revision, it shall be decided in accordance with the opinion of the majority of the Financial Commissioners, or if there is no such majority which concurs in a decision modifying or reversing the decree or order under appeal, review or revision , that decree or order shall be affirmed; and
(b) Where the case is not an appeal or a case on review or revision, the matter respecting which there of is the difference of opinion shall be referred to the State Government for decision and the decision of that Government with respect thereto shall be final. (4) The expression "Financial Commissioner" in this or any other Act shall, when there are more Financial rt Commissioners than one, be construed as meaning one or more of the Financial Commissioners as the rules for the time being in force under sub-section (2) may require.
9. Appointment of Commissioners etc., Commissioners, Additional Commissioner, Deputy Commissioners, Settlement Officer, Additional Deputy Commissioner, Sub Divisional Officer (Civil), Assistant Settlement Officer and Assistant Commissioners shall be appointed by the State Government.
10. Appointment of Tahsildars and Naib-Tahsildars : - The State Government shall fix the number of Tahsildars and Naib-Tahsildars to be appointed .
11. Powers of Revenue-officers : - Except where the class of the Revenue-officer by whom any function is to be discharged is specified in this Act, the State Government may, by notification determine the functions to be discharged under this Act by any class of Revenue-officers.
12. Superintendence and control of Revenue-officers : - (1) The Financial Commissioner shall subject to the control of the State Government.
(2) The general superintendence and control over all other Revenue -officers shall be vested in, and all such officers shall be subordinate to the Financial Commissioner. (3) Subject to the general superintendence and control of the Financial Commissioner, a Commissioner shall control all other Revenue-officers in his division.
::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 17(4) Subject as aforesaid and to the control of the Commissioner, a Collector shall control all other Revenue- officers in his district.
16. Review by Revenue officers: - (1) Where there is a mistake or error apparent on the face of record or where .
some new and important fact or evidence is discovered, a Revenue officer may, either of his own motion or on the application of any party interested, review, and on so reviewing modify, reverse or confirm, any order passed by himself or by any of his predecessors in office :
Provided as follows: -
(a) when a Commissioner or Collector thinks it necessary to review any order which he has not of himself passed, and when a Revenue officer of a class below that of Collector proposes to review any order whether passed by himself or by any of his predecessors in office, he shall first obtain the sanction of the Revenue-officer to whose control he rt is immediately subject ;
(b) an application for review of an order shall not be entertained unless it is made within ninety days from the passing of the order, or unless the applicant satisfies the Revenue-officer that he had sufficient cause for not making the application within that period ;
(c) an order shall not be modified or reversed unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of the order ;
(d) an order against which an appeal has been preferred shall not be reviewed.
(2) For the purposes of this section, the Collector shall be deemed to be the successor in office of any Revenue-
officer of a lower class who has left the district or has ceased to exercise powers as Revenue-officer, and to whom there is no successor in office.
(3) An appeal shall not lie from an order refusing to review or confirming on review a previous order.
(4) Save in the cases of clerical or arithmetical mistakes arising from any accidental slip or omission, no application for review shall lie under this section against an order passed by the Financial Commissioner under Section 17 of this Act.
20. Power of Revenue officer to summon persons: - (1) A Revenue-officer may summon any person whose attendance he considers necessary for the purpose of any business before him as a Revenue-officer.
::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 18(2) A person so summoned shall be bound to appear at the time and place mentioned in the summons in person, or, if the summons so allows, by his recognized agent or a legal practitioner.
(3) The person attending in obedience to the summons shall .
be bound to state the truth upon any matter respecting which he is examined or makes statements, and to produce such documents and other things relating to any such matter as the Revenue-officer may require.
21. Mode of service of summons: - (1) A summons issued by a Revenue-officer shall, if practicable, be served (a) personally on the person to whom it is addressed or failing him (b) his recognized agent.
(2) If service cannot be so made, or if acceptance of of service so made is refused, the summons may be served by posting a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or if that person does not reside in the district in which the summons relates has reference to land in that district, then by posting rt a copy of the summons on some conspicuous place in or near the estate wherein the land is situate. (3) If the summons relates to a case in which persons having the same interest are so numerous that personal service on all of them is not reasonably practicable, it may, if the Revenue-officer so directs, be served by delivery of a copy thereof to such of those persons as the Revenue-officer nominates in this behalf and by proclamation of the contents thereof for the information of the other persons interested.
(4) A summons may, if the Revenue-officer so directs, be served on the person named therein, either in addition to, or in substitution for, any other mode of service, by forwarding the summons by post in a letter addressed to the person and registered under Part III of the Indian Post Office Act, 1898 (6 of 1898).
(5) When a summons is so forwarded in a letter, and it is proved that the letter was properly addressed and duly posted and registered, the Revenue-officer may presume that the summons was served at the time when the letter would be delivered in the ordinary course of post. [Provided that in addition to issuing of summons, a Revenue Officer shall also issue proclamation calling upon the parties concerned to appear before him either in person or through a duly authorised legal practioner on the day fixed for first hearing, and to file objections, if any."
::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 1916. Close scrutiny of the documents available on record clearly suggests that Gram Panchayat, Juanaji, Solan vide resolution No. 99, dated 9.4.1972 granted 10 bighas of .
land under Punjab Village Common Land (Vesting & Utilisation) Act, 1974 to the petitioner on the payment of Rs.10/- per annum. Record further reveals that aforesaid action was approved by Deputy Commissioner, Shimla and of lease money was charged from lessee from 1974-1975. Since, this Court had an occasion to peruse the original record, it could lay its hand to the documents suggestive of the fact that rt aforesaid lease granted in favour of petitioner was renewed from time to time by the authorities on the payment of lease money. Vide order dated 5.8.1987, Collector, Sub Division, Solan extended the lease of the petitioner qua land in question from 17.6.1986 to 16.6.1991 specifically directing the Tehsildar, Solan, to make necessary entries in the revenue record after charging lease money at the rate of Rs.
70/2. Perusal of Annexure P-3 i.e. report of Tehsildar made on April, 1976 clearly suggests that at the time of renewal of lease in the year, 1976, it was reported that husband of petitioner is employed in Police Department but fact remains that despite aforesaid report, the lease in favour of petitioner qua land in question was renewed. Similarly, this Court could also lay its hand to communication dated 25.2.1983 sent by SDM, Solan to Tehsildar, Solan, suggestive of the fact that ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 20 Patwari, namely, Ramkrishan while making report in terms of letter referred hereinabove specifically reported that petitioner has cultivated land by sowing maze crop on the same. He also .
reported that petitioner has constructed house as well as cow shed on the land in question. Apart from above, Patwari concerned specifically reported that husband of late Smt. Shanti Devi is a government employee. Thereafter on of 30.8.1983, Collector, Solan Sub Division ordered as under:-
"I have gone through the report of Revenue Field Agency and found that this case is a fit case for further leasing out the land for the period of rt five years commencing w.e.f. 17.6.1981 to 17.6.1986 and lease amount was assessed to Rs. 66.50 paise."
17. Similarly, Collector, Solan Sub Division, Solan vide order dated 5.8.1987 again reported that "I have gone through the report of Revenue Field Agency and found that this case is a fit case for further leasing out the land for the period of five years commencing w.e.f. 17.6.1986 to 16.6.1991 and lease amount was assessed to Rs. 70/-". Thereafter, Collector, Sub Division, Solan, on the basis of complaint made by one Shri S. Kumar addressed to Commissioner, Shimla Division, Shimla wherein, it was stated that petitioner, namely, Shanti Devi procured 10 bighas of land from the Gram Panchayat concerned by concealing material facts with regard to her husband being in government service, initiated proceedings.
Perusal of complaint suggests that at the time of allotment ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 21 her husband was working in railway police as constable and they both lived jointly till death of her husband i.e. up to 26.12.1986. Moreover, after the death of her husband, .
predecessor-in-interest of petitioner was in receipt of the amount of gratuity and family pension etc. After receipt of aforesaid complaint, Division Commissioner, Shimla vide communication dated 25.4.1996 sought report from the of authorities concerned. Pursuant to aforesaid communication sent by Divisional Commissioner, Shimla, SDM (Civil) vide communication dated June, 1996 reported that erstwhile rt Collector had granted lease to petitioner Smt. Shanti Devi since she was deserted by her husband. Perusal of communication dated 26.6.1996 available on record suggest that Office & Court of the Commissioner, Shimla Division, sent a communication to the Sub Divisional Collector, Solan, District Solan pursuant to letter dated 3.6.1996 stating therein that case of Smt. Shanti Devi, w/o Parkash Chand, sent by above referred letter appears to be a case under Section 4 of the H.P. Village Common Lands (Vesting and Utilisation) Act. In the aforesaid letter of the office of Divisional Commissioner specifically stated that since appeal against orders of Collector lies to Government, permission to review can also only be given by the Government and as such Sub Divisional Collector, Solan was advised to sent the case through District Collector, Solan, who may also add the ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 22 record on the basis of which he passed the order dated 18.11.1995, meaning thereby, till 26.6.1996 no permission to review was ever accorded by the competent authority to the .
Collector, Solan to review order of grant of lease made in favour of the petitioner in the year, 1972. Accordingly, vide communication dated 4th July, 1996, SDM (Civil), Solan informed the Collector, Sub Division, Solan that matter with of regard to permission to review grant of lease in favour of petitioner was sent to Divisional Commissioner, Shimla, who vide communication dated 26.6.1996 returned the same with rt the advise that case may be sent though Collector alongwith copy of Misl. No. 73/75.
18. Close scrutiny of original record made available to this Court reveals that vide order dated 2.12.1996, Financial Commissioner (Revenue) to the Government of Himachal Pradesh conveyed the approval of the Government to the Sub Divisional Collector , Solan (SDO (Civil), Solan) to review the lease subject to granting sufficient opportunity to the affected party. The contents of aforesaid letter is reproduced as under:-
"Divisional Commissioner, Shimla Divisional, Shimla.
Dated: Shimla - 2, the 2/12/1996.
Subject:- Lease case in respect of Smt. Shanti Devi w/o Sh. Parkash Chand r/o Vill. Kanah-Bajnal, The. & distt. Solan.
Sir, ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 23 I am directed to refer to your letter No. PB/96/Commr.Solan-5067, dated 9th August, 1996 on the subject noted above and to convey the approval of the Government to the Sub Division Collector, Solan, (S.D.O. (Civil) Solan to review the above case subject to granting sufficient opportunity to the .
affected party.
2. The revenue papers received with your letter under reference are returned herewith for taking necessary action Yours faithfully,
-sd-
Under Secretary (Revenue) to the of Government of Himachal Pradesh"
19. It stands clearly established after perusing the rt aforesaid communication as reproduced hereinabove that permission/approval of the Government to the Sub Divisional Collector, Solan, to review the lease / case of Smt. Shanti Devi predecessor-in-interest was granted vide order dated 2.12.1996. But, interestingly in the present case as clearly emerged from the record, Collector, Solan (Annexure P-8) vide order dated 8.11.1995, on its own without complying with the provisions of H.P. Land Revenue Act, granted permission to review orders of Collector, Solan dated 17.6.1976 and 5.8.1987 exercising power under Section 16 of H.P. Revenue Act.
20. Since, Collector, Solan District was not competent to pass order dated 18.11.1995 whereby he granted permission to review order of Collector, Sub Division, Solan, dated 17.6.1976 invoking power under ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 24 Section 16 of the H.P. Land Revenue Act, Collector, Sub Division Solan vide communication dated 4.9.1996 sought permission from Divisional Commissioner, Shimla, but fact .
remains that vide order dated 2.12.1996 as reproduced hereinabove, Financial Commissioner granted approval of the Government to Sub Divisional Collector, Solan to review the aforesaid case of the lease of Smt. Shanti Devi.
of Accordingly, Collector, Sub Division, Solan vide order dated 17.9.2008 cancelled the lease of petitioner as discussed hereinabove.
21. rt Being aggrieved and dis-satisfied with the aforesaid cancellation made by Collector, Sub Division, Solan dated 17.9.2008, present petitioners filed appeal before Divisional Commissioner, Shimla Division, under Section 9 of the H.P. Village Common Land (Vesting & Utilisation) Act, 1974, which was also dismissed.
22. Since, order dated 17.9.2008 was passed by Collector, Sub Division, Solan after receipt of approval from Government vide communication dated 2.12.1996, this Court is unable to accept the contention put-forth on behalf of petitioner that order dated 17.9.2008 is not sustainable since no proper permission to review in terms of Section 16 of the Act was procured by Collector, Sub Division, Solan before passing order dated 17.9.2008. Since, it stands duly proved on record that before passing order dated 17.9.2008, ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 25 Collector, Sub Division, Solan had procured approval of Government in terms of Section 16 of the Act, order dated 8.11.1995 passed by Collector, Solan District granting .
permission to review the order of Collector, Sub Division, Solan dated 17.6.1976 is of no relevance/significance because record clearly suggests that same was never acted upon, rather authorities concerned thereafter procured of proper permission in terms of Section 16 of the Act to review from Financial Commissioner, Govt. of H.P. vide communication dated 2.12.1996.
23. rt Now, another contention which needs to be dealt with at this stage, whether authorities as provided under the Act could review grant of lease made in 1972 after lapse of 24 years. Careful perusal of Section 16(b) as reproduced hereinabove clearly suggests that application, if any, for review of order could only be entertained, if it is made within 90 days from the passing of the order or unless the applicant satisfies the Revenue Officer that he had sufficient cause for not making the application within that period. Admittedly, in the present case lease was granted in favour of petitioner in the year, 1972 and authorities concerned renewed the same from time to time up to the year, 1991. As has been observed above, Tehsildar while making report at the time of renewal of lease in the year, 1976 categorically reported that husband of petitioner in ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 26 whose favour lease was granted is employee of Police Department. It is not understood that when factum with regard to employment of husband of petitioner in Police .
Department came in the knowledge of authorities at the time of renewal of lease in the year, 1976, why steps were not taken to cancel the lease granted in favour of petitioner on the ground of suppression of material information.
of
24. Similarly, while sifting the record, this Court could lay its hand to the report dated 28.7.1983 given by Patwari, namely, Ramkrishan at the time of renewal of lease, rt wherein he categorically reported that husband of petitioner is a government employee but despite that Collector, Sub Division, Solan vide order dated 30.8.1983 renewed the lease from 17.6.1981 to 17.6.1986 specifically stating therein that he or she has gone through the report of Revenue Field Agency and found that case is fit for further leasing out the land for the period of five years. Similarly, vide order dated 5.8.1987, Collector, Solan Sub Division, Solan renewed the lease from 17.6.1986 to 16.6.1991 specifically stating therein that I have gone through the report of Revenue Field Agency and found that this case is fit case for further leasing out the land for the period 17.6.1986 to 16.6.1991.
25. This Court after perusing the aforesaid reports repeatedly submitted by Tehsildar and Patwari stating ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 27 therein that husband of petitioner is in government service, is unable to accept the contention put-forth on behalf of respondents that petitioner had suppressed material facts .
from the authorities concerned at the time of initial grant made in the year, 1972. This Court was unable to found any document on record suggestive of the fact that any point of time petitioner claimed that she does not live with her of husband and he is not in government service, rather at the time of renewal of lease Revenue Field Agency reported that husband of the petitioner has deserted her and she has five rt children to look-after. Record clearly reveals that it was in the knowledge of authorities from day one that husband of the petitioner is in government service and despite that she was granted lease qua the land in question. Annexure P-3, as mentioned above, clearly suggests that Tehsildar in its report dated 4/1976 had clearly informed that husband of the petitioner is in government service and, as such, it is not understood that if lease of land was procured by the petitioner by suppressing material facts with regard to employment of his husband in government service, why action was not taken in the year, 1976 by the authorities against the present petitioner. Perusal of Section 16(b) clearly suggests that application for review cannot be entertained unless the same is made within 90 days from the passing of the order. In the present case order granting ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 28 lease was passed by the authorities vide resolution dated 9.4.1972, which was further approved by Deputy Commissioner and as such permission to review after 24 .
years of grant of lease could not be granted by the authorities as envisaged in the Act in terms of Section 16 (b) especially when no sufficient explanation was rendered for delay in initiating proceedings under Section 16 of the Act.
of Moreover, this Court was unable to find any document available on record suggestive of the fact that at any point of time while seeking permission to review from the competent rt authorities in terms of Section 16 of the Act, any plausible explanation was rendered for not making application within prescribed period as stipulated in Section 16 (b) of the Act.
Rather careful perusal of record suggests that at the first instance Collector, District Solan without seeking permission from the competent authorities in terms of Section 16 of the Act himself granted permission to Collector, Sub Division to review orders of Collector, Sub Division, Solan dated 17.6.1976 and 5.8.1987.
26. It also emerge from the record that subsequently realizing aforesaid mistake Collector, Sub Division Solan, sent communication to the Divisional Commissioner, Shimla vide letter dated 4.9.1996 praying therein for permission to review grant of lease made in the year, 1976. However, aforesaid permission was rejected by ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 29 Commissioner, Shimla Division, Shimla, with the advise to send the case through District Collector, Solan alongwith record on the basis of which he passed order dated .
8.12.1995, thereafter, authorities concerned sent communication to Divisional Commissioner, Shimla seeking approval of the government to review the case in terms of Section 16 of the Act. But there is no document/letter of available on record from which it can be inferred that any plausible explanation was ever rendered by the authorities while seeking permission to review its earlier order made in rt the year, 1976 in terms of Section 16(b) of the Act.
27. Hence, this Court is of the view that Financial Commissioner committed illegality while granting permission to review in terms of Section 16 of the Act on the application for review made by Collector, Solan, which was admittedly made after 24 years of passing of the order. Since application was completely barred by time as provided under Section 16(b), competent authority i.e. Financial Commissioner, should not have allowed application in absence of sufficient cause for not making the application within that stipulated period. Record nowhere suggests that at any point of time Collector, Sub Division, Solan moved an application for condonation of delay while seeking permission to review under Section 16 of the Act, rather Financial Commissioner merely on the application having ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 30 been made after 24 years of passing of order for grant of lease, granted approval to review order made in the year, 1976, without application of mind. Hence, this Court has no .
hesitation to conclude that order dated 2.12.1996 granting permission to review is not sustainable as the same has been passed clearly in violation of Section 16 (b) of the Act.
28. Since, this Court had an occasion to peruse the of entire record made available to this Court during arguments, contention put-forth on behalf of respondents that due opportunities were afforded to the petitioner by the rt authorities before passing of aforesaid order of review cannot be accepted on its face value. There is no document available on record suggestive of the fact that any notice was ever issued to the petitioner by the Financial Commissioner before passing order dated 2.12.1996, whereby he granted permission to Collector, Sub Division, Solan to review the grant of lease made in the year, 1976. Had competent authority i.e. Financial Commissioner afforded an opportunity to petitioner to explain her stand before granting permission to review vide order dated 2.12.1996, she would have got sufficient chance to explain that why order made in the year, 1976 cannot be reviewed. But in the instant case, this Court was unable to find on record any document issued to the petitioner calling upon her to explain that why order of lease made in the year 1972/1976 ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 31 be not reviewed and as such, this Court sees considerable force in the contention put-forth on behalf of counsel representing the petitioners that principle of natural justice .
were not complied with by the authorities before granting permission to review.
29. Now, adverting to another contention put-forth on behalf of petitioners that before passing order dated of 17.8.1997, no notice was served upon late Smt. Shanti Devi.
Though, perusal of Annexures P-10 & P-11 placed on record by petitioners suggests that notice were issued by Sub rt Divisional Collector, Solan, intimating therein the date of hearing as 13.8.1997 and 16.9.1997 respectively, but perusal of report of process server appended on the same suggest that notice dated 30.8.1997 was received by Ms. Kiran Devi (Daughter-in-law) and perusal of Annexure P-13 i.e. notice dated 16.9.1997 suggests that same was served upon late Smt. Shanti Devi but interestingly in none of aforesaid summons, process-server while effecting service procured signature of person, who identified the person to whom summons were served. Section 21 of the Act provides mode of service of summons, which has been reproduced hereinabove. Section 21 clearly provides that summons issued by Revenue Officer, if practicable, be served (a) personally on the person to whom it is addressed or failing him (b) his recognized agent.
::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 3230. In the present case, summon dated 13.8.1997 was allegedly served through Ms. Kiran Devi (daughter-in-
law) of late Smt. Shanti Devi but as has been mentioned .
above, there is no signature of witness, if any, before whom the notice was served. Section 21 of the Act further provides that if service cannot be made or acceptance of service so made is refused, the summons may be served by posting of of copy thereof at the last known place of residence of person to whom it is addressed. But admittedly in the present case, at no point of time attempt was made to serve Smt. Shanti rt Devi through post in terms of Section 21 (2). Section 21 of the Act further provides for various modes of service including proclamation but interestingly in the present case authorities concerned before passing order dated 17.9.2008 never made an attempt to serve late Smt. Shanti Devi by other means as envisaged under Section 21 of the Act. If version of respondents is taken to be correct that she was served through the notices as referred as above, authorities concerned with a view to secure her presence could always order to effect service on Smt. Shanti Devi by resorting to other mode of service as provided under Section 21 before pronouncement of order dated 17.9.2008. In this regard, reliance is placed on Hon'ble Apex Court Judgment titled Ramchandra Keshave Adke (Dead) by LRs. Versus ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 33 Govind Joti Chavare and other, AIR 1975 SCC 915.
Relevant para 25 of the judgment is reproduced as under:-
"25. A century ago, in Taylor v. Taylor(1), Jassel M. R. .
adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor(2) and later by this Court in several cases(3), to a Magistrate making a record under ss. 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies of "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did rtnot imply a prohibition to do it in any other.(4)" The rule will be attracted with full force in the present case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non-est for the purpose of S. 5 (3) (b)."
31. Reliance is also placed on Ishwar Dass & Anr.
Vs. Mansha Ram & ors., 2005 (1) HLJ 548 , wherein it was held as under:-
"6. From a perusal of the above, it would be clear that where the summons have been issued by the revenue officer, the same shall if practicable be served personally on the person to whom it is addressed or upon his recognized agent. It is further provided therein that if service can not be so made, or if acceptance of notice is made is refused, the summons may be served by posting a copy thereof at the usual or last known place of residence of the person to whom the summons have been addressed. In the present case, the service had been duly effected upon the appellants by following the procedure provided under Section 21 of the ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 34 aforesaid Act. Under these circumstances, in my opinion, it can not be said that the plaintiffs/appellants had not been served in the partition proceedings before the Assistant Collector in accordance with law merely because provisions of Order 5 C.P.C. had not been complied with. As .
referred to above, in the partition proceedings pending before the Assistant Collector, the provision of Section 21 of the said Act would apply and not the provisions of Order 5 C.P.C., especially when there is specific provision regarding mode of service of summons provided under the provisions of Himachal Pradesh Land Revenue Act, 1953."
32. Hence, in view of the above, this Court is in of agreement with the contention put-forth on behalf of petitioners by Mr. G. D. Verma, that Smt. Shanti Devi was rt not duly served before passing of impugned order dated 17.9.2008.
33. Apart from above, perusal of impugned order dated 17.9.2008 clearly suggests that allotment of lease made in favour of Smt. Shanti Devi was ordered to be cancelled solely on the ground that her husband was in government service in Railway Police at the time of allotment of lease and after the death of her husband she was in receipt of family pension. But, at the cost of repetition, it may be noticed here that factum with regard to petitioner's husband being in government service was very much in the knowledge of the authorities, firstly in the year, 1976, when Tehsildar reported at the time of renewal of lease that husband of the petitioner is in service and thereafter in the year, 1983 when Patwari, namely, Ramkrishan specifically ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 35 reported that husband of petitioner is in government service.
But despite aforesaid reports authorities renewed the lease specifically stating therein that after perusal of the report of .
the Revenue Field Agency, they are satisfied that case is fit for renewal of the lease. Moreover, in view of aforesaid conduct of respondents, they are estopped by their own conduct and record to cancel the lease made in year, 1972 of
34. Reliance has also been placed on the judgment of Hon'ble Apex Court titled Mahboon Sahab versus Syed Ismail and others, AIR 1995 Supreme Court 1205, the rt relevant para of the judgment is reproduced as under:-
"7.Her 1/3rd undivided share was not subject matter of OS No. 3/1/1951. The Additional Civil Judge, therefore, was right in his findings that the gifts have not been proved. They were not complete. Admittedly, the father continued to be in possession and enjoyment of the lands as owner as evidenced by the revenue records until it was mutated in the name of the appellants to the extent of 16 acres purchased by him as per the aforesaid sale deeds Ex.
D-1 and Ex.D-3. Ibrahim has attested Ex.D- 1 when his father conveyed the lands as an owner. Though the sale was against his interest, he had not objected to the sale. He, thereby, is estopped by conduct and record to assail Ex.D-1 sale or to claim any interest in the lands."
35. Now, adverting to the another contention put-
forth on behalf of respondents that petitioner had filed civil suit No. 197/2 of 2001/97, in the Court of learned Senior Civil Judge, Solan, claiming herself to be owner of possession of land, which is the subject matter of this Court ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 36 and same was dismissed. It is undisputed that late Smt. Shanti Devi, predecessor-in-interest of present petitioners filed suit as referred hereinabove, which was dismissed.
.
Petitioners himself placed on record Annexure P-7 i.e. copy of judgment dated 30.4.2003 passed by learned Additional District Judge, Solan, whereby appeal preferred by Smt. Shanti Devi was rejected. Perusal of aforesaid judgment of (Annexure P-7) clearly suggests that there is no force in the contention put-forth on behalf of respondents because admittedly suit was filed as referred to hereinabove in year, 1997.
rt But fact remains that by way of present petition, petitioners laid challenge to the order dated 17.9.2008 passed by Collector, Sub Division, Solan, which was further affirmed by Divisional Commissioner, Shimla Division, Shimla vide order dated 6.4.2010 in the appeal preferred by the present petitioners. Since, petitioners by way of present petition specifically laid challenge to order dated 17.9.2008 and 6.4.2010 passed by Collector, Sub Division, Solan and Divisional Commissioner, Shimla respectively, this Court sees no reason to dismiss the petition on the ground that petitioner had earlier filed civil suits as to referred hereinabove. Aforesaid impugned orders were not subject matter of civil suits referred above, as such, there is no force in the contention of the respondents.
::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 3736. Close scrutiny of original records made available to this Court as well as pleadings available on record clearly establish that lease was granted in favour of Smt. Shanti .
Devi predecessor-in-interest of present petitioners in the year, 1972, which was subsequently renewed by the authorities concerned till 1991, specifically taking note of the reports submitted by Revenue Field Agency i.e. Patwari of and Tehsildar, wherein, they categorically reported that in the years, 1976 and 1983, the husband of the petitioner is in government service and, as such, action of respondents in rt reviewing order made in the year, 1976 cannot be termed to be legal and valid. Apart from this, review, if any, in terms of Section 16 of the Act could be made within a period of 90 days from passing of order, but admittedly in the present case, application for permission to review was filed after 24 years that too without there being any application incorporating therein sufficient cause for delay in maintaining application after 24 years, as such, same being in violation of Section 16(b) of the Act could not be entertained by the Financial Commissioner while granting permission to review the lease made in the years, 1972 and 1976.
37. Similarly, as has been discussed above, at no point of time, Financial Commissioner while granting permission to review order made in the year, 1972 issued ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 38 any notice to Smt. Shanti Devi i.e. predecessor-in-interest of present petitioners calling upon her to explain her position and, as such, order dated 2.12.1996 granting approval to .
Collector to review cannot be allowed to sustain being passed in violation of principles of natural justice. Similarly, no service was effected upon Smt. Shanti Devi predecessor-
in-interest of present petitioners in strictly in terms of of Section 21 of the Act by authorities before passing of order dated 17.9.2008.
38. Hence, in totality of circumstance as indicated rt hereinabove, this Court sees considerable force in the averments contained in the writ petition as well as submissions made on behalf of counsel representing petitioners and, as such, present petition deserves to be allowed. Perusal of impugned order passed by Divisional Commissioner, Shimla Division, Shimla in appeal No. 61 of 2009, nowhere suggests that ground taken by the Smt. Shanti Devi in her appeal under Section 8 of the H.P. Village Common Land (Vesting & Utilisation) Act, 1974 was dealt with while passing order dated 6.4.2010. Rather perusal of impugned order dated 6.4.2010 passed by Divisional Commissioner, Shimla suggests that Divisional Commissioner failed to take note of the discrepancies as have been noticed by this Court in the earlier part of judgment and, as such, Divisional Commissioner, Shimla ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 39 committed grave illegality while passing impugned order dated 6.4.2010.
39. In the present case most glaring discrepancy, .
which came to the notice of the Court during the argument of the case is that impugned order dated 17.9.2008 passed by Collector, Sub Division, Solan is against dead person because admittedly Smt. Shanti Devi predecessor-in-interest of of present petitioners in whose favour the lease was granted expired on 6.9.2008. Since, Smt. Shanti Devi had expired on 6.9.2008, order dated 17.9.2008 passed by Collector, Sub rt Division, Solan is a nullity because no order or decree could be passed against dead person.
40. At this stage, Shri Rupinder Singh Thakur vehemently argued that since Smt. Shanti Devi was duly served before passing of order dated 17.9.2008 and she was proceeded exparte, order dated 17.9.2008 passed by Collector, Sub Division, Solan, cannot be termed as a nullity. But in the present case, as has been held above, that Smt. Shanti Devi was not duly served in terms of Section 21 of the Act and, as such, contention put-forth on behalf of Mr. Thakur cannot be accepted. Moreover, it is own case of the respondents that Smt. Shanti Devi was proceeded exparte, meaning thereby, that she was never heard by authorities concerned before passing order dated 17.9.2008, which was admittedly passed after her death.
::: Downloaded on - 15/04/2017 21:13:07 :::HCHP 4041. Consequently, in view of the detailed discussion made hereinabove, orders dated 17.8.2008 and 6.4.2010 passed by the Collector, Sub Division, Solan and Divisional .
Commissioner, Shimla, respectively are quashed and set aside and respondents are restrained from interfering in the right, title and interest of the petitioners in the land in question.
of (Sandeep Sharma), Judge.
September 9, 2016 Sanjeev rt ::: Downloaded on - 15/04/2017 21:13:07 :::HCHP