Himachal Pradesh High Court
Gian Singh And Ors. vs State Of H.P. And Ors. on 13 January, 1994
Equivalent citations: AIR1996HP38
JUDGMENT D.P. Sood, J.
1. By this writ petition under Article 226 of the Constitution of India, the petitioners seek the relief of issuance of appropriate writ., direction or order, directing the respondents to:
i) complete the on-going land revenue settlement operations as Second Revised Settlement strictly in accordance with the intent of the two notifications one pertaining to the special revision of the existing records of right under Section 33 of the H. P. Land Revenue Act, 1953 and the other for general assessment of land revenue under Section 53 of the said Act;
ii) withdraw Instructions Nos. 2, 4 and Supplementary Instructions Nos. 2, 23 and 32 of the Compendium of Instructions, issued by the 4th respondent (Settlement Officer);
iii) bring up-to-date at re-settlement the field map of the previous settlement without recourse to re-measurement and preparation of the record of rights including wazib-ul-arz etc. strictly in accordance with Instructions contained in Para 222 of the Settlement Manual read with Appendix XXI thereunder and consequently directing the deletion of Naksha Bartan illegally prepared and not to convert the classification of the Government waste land recorded in the revenue records as also in occupation of the estate-right-holders into various lands and directing the modification of the Government policy with respect to regularisation of encroachment detected during the settlement proceedings; and
iv) direct the respondents not to hand over/deliver the revenue records to the revenue mohal staff till the completion of the ' settlement including assessment of land revenue, incorporated in the jamabandies.
1A. The petitioners, being the right-holders owning immoveable properties, are residents of different revenue estates in Tehsils Rohru, Chirgaon and Dodra Kwar of District Shimla. The latter two tehsils were carved out from former-Teh. Rohru, a few years ago which formed part of princely State of Rampur Bushahar prior to independence.
2. On 23-8-1979, two Notifications, one pertaining to special revision of the existing record of rights under Section 33 of the H. P. Land Revenue Act, 1953 (hereinafter shortly referred to as the Act) and the other for general assessment of land revenue under Section 53 of the Act, were issued by the State Government (first respondent). Both these notifications were published in the H. P. Extraordinary Gazette dated 1-9-1979. For carrying out the revision of records operation, respondent No. 4 issued instructions and supplementary instructions from time to time (P-21) (hereinafter referred to as 'compendium of instructions'). The settlement operation was started in the year 1979. During the pendency of the revenue settlement operations carried on in the aforesaid tehsils, the petitioners found that settlement staff committed various illegalities and irregularities in carrying out the revision of the existing record of rights. They made grievances to the authorities concerned, but of no avail. Ultimately, they have filed the instant writ petition seeking various relief's, referred to above.
3. The main case of the petitioners is that although the State Govt. issued the above said two Notifications with specific purpose for special revision of record of rights and general assessment of land revenue respectively, respondent No. 4 by executive instructions by way of compendium of instructions and supplementary instructions (P-21), issued by him, changed the nature of the settlement into Jadeed (new settlement) without having any authority of law in this behalf. Petitioners aver that procedure for bringing up-to-date at re-settlement the field map of the previous settlement without recourse to re-measurement as per instructions contained in Appendix XXI pursuant to paragraph 222 of the Punjab Settlement Manual, has not at all been followed nor the settlement has begun with an examination of existing maps forming part of the record of rights under S. 32 of the Act. It is asserted that existing record of rights has been ignored as the revenue staff has started the settlement by having recourse to re-measurement afresh in the entire area without taking any preliminary steps with a view to make choice between re-measurement and revision. Petitioners further aver that the various instructions of compendium of instructions, namely, 2, 4 (1 to 8) and supplementary instructions I to 3, 5, 23 and 32 thereof are in conflict with statutory provisions of the Act and the Rules. Resultaritly, not only revenue estates have been split up into Up-Muhals without any authority of law but also classification of lands and orchards have illegally been recorded in the new record of rights. In addition, sanctity of presumption of truth attached to the record of rights has been ignored while conducting settlement operations and wazib-ul-arz (village settlement papers) have been prepared illegally, without conforming to the statutory provisions of law and rules or instructions issued by respondent No. 3 which has affected the vested rights of the estate-right-holders and residents of these revenue estates. Apart from the above, it is averred that forest settlement is also going on simultaneously with the land settlement. Even wazib-ul-arz pertaining to the forests are being prepared without the consultation of and without recording the statements of the estate-right-holders. Besides, policy decision with respect to the regularisation of encroachment has not been followed while preparing the revised record of rights. It has been asserted that the recourse to fresh measurement of the entire area has given rise to errors in land measurement. Briefly stating, their claim is that procedure prescribed as per instructions contained in Appendix VII for the first regular settlement, instead of instructions contained in Appendix XXI for special revision of record of rights, is being followed, which has not only affected the rights of the residents of the aforesaid revenue estates but has also resulted into wrong preparation of record of rights. In 'addition, the petitioners have alleged that despite several representations made to the authorities concerned, their grievances have not been remedied. As per them, the faulty record, containing errors, has prematurely been handed over to the revenue Mohal staff despite numerous objections of the various farmers for correction of jamabandies and field maps etc. which are still pending decision under inquiry.
4. By notice pending admission vide order dated May 10, 1988, respondent No. 3 was directed to examine the grievances of the petitioners as per their earlier representations and writ petition and to grant appropriate relief, issue suitable directions, if any, in accordance with law. The third respondent, after affording an opportunity to the petitioners of being heard, examined the submissions in detail and refrained from giving any relief to the petitioners vide his order dated September 24, 1988 (Annexure RA) for the reasons stated therein. Thus, the third respondent has adopted the following reasonings in his affidavit, in reply to the petition.
5. Firstly, that the 4th respondent (Settlement Officer) issued detailed instructions after getting them approved from the Government in which it was mentioned that this settlement shall be called "the second Special Revision Settlement". However, subsequently revised settlement instructions were issued for calling it "Jadid" because the measurement in Rohru and Rampur tehsils was being done de novo and land revenue was also to be freshly assessed; secondly, that the function of settlement operation is to prepare record of rights, where it does not exist and revise and up-date it where it exists. As the current settlement operations are being carried out after regular settlement in 1887-90 and re-visional settlement in 1911-14 and in between, large number of changes have taken place in the revenue records, particularly, after 1954 due to implementation of land reforms measures, various other schemes relating to allotment of land, change of unit of measurement in metric system instead of old unit in terms 'of 'karams', the re-measurement of land in every revenue village became absolutely necessary for preparation of new 'Shajra' on metric system. It is, however, stated that in respect of the abovesaid procedure adopted during the current settlement operations in the area aforesaid, the old record of rights, namely, Shajra and jamabandies have been made the basis for the present settlement and the old records are, thus, being up-dated on newly introduced metric system. The allegations that no tracing copies of field maps of last settlement were provided to the revenue officials, has been denied. The up-dating of the record of rights is stated to be strictly in accordance with the various provisions, particularly, Section 38 of the Act.
6. Regarding the formation of the fresh 'mohal-bandi', it is stated that firstly, according to Instructions Nos. 6 and 7 of compendium of instructions issued by the 4th respondent (Settlement Officer) and approved by the Government, he can create and give sanction to the creation of new estates, particularly, when under Section 4(5) of the Act, the State Government can create by general rule or special order new estates; secondly, that files pertaining to the formation of new estates have been prepared after consultation and recording the statements of the estate-right-holders. According to him, 4th respondent has been duly authorised to create Up-Mohals and they have been created, though for various administrative purposes, it will still be treated as a single unit for the purpose of assessment of land revenue. Any aggrieved party thereby is legally entitled to seek his remedy by way of representation to the Assistant Settlement Officer or in appeal or in revision. It is denied that such formation of Up-Mohals, in any way, affected the rights of the interest holders and of the revenue estate concerned.
7. As regards the preparation of 'Naksha Bartan' and wazib-ul-arz of all the estates, the respondents state that they are being prepared/revised after associating invariably and recording of statements of the estate-right-holders of each revenue estates with their consent and knowledge in accordance with the instructions contained in Appendix VIII-E and Paras 295 and 296 of the Punjab Manual. It is added that Naksha Bartan was prepared for the benefit of right holders and it is not detrimental to their interests. It is stated to include rights already existing.
8. It is further stated that 4th respondent (Settlement Officer) is competent to suggest/ propose new classes of land, in addition to the classification of the land already conveyed by him, to the Financial Commissioner (Revenue) (respondent 3) to be adopted according to the local peculiar conditions prevalent in a particular tract under settlement which he claims to have duly approved.
9. So far as the encroachment policy is concerned, it is contended that regularisation of encroachment is a concession and not a right of the encroachers and hence the question of discrimination does not arise nor its regularisation can be claimed as a matter of right. On the contrary, an encroacher is liable to be ejected and fined under Section 163 of the Act.
10. Regarding errors in land measurement, it is stated that whenever measurement is done, the land owner is present and he is also to see that his land is properly measured. However, in some cases, measurement has not been found to have been done correctly for which there is remedy available by way of appeal before the Settlement/Revenue Officer. It is pointed out that according to Section 114 of the Act, survey marks are erected at the cost of interested persons and in the current settlement, temporary survey marks are found to have been put up during measurement by the settlement staff in the presence of the villagers.
11. Regarding the premature handing over of the record of rights to the Mohal patwaris, it is contended that settlement operations become complete after general reassessment is finalised and after passing the order by the Settlement Officer on the record of rights on each estate even if patwaris' copies are handed over to the Mohal staff. Regarding the current settlement, it is admitted that re-assessment and final order of the Settlement Officer closing the settlement operations are yet to be made, However, it is contended that patwaris are competent to issue copies of record of rights handed over to them as the record of rights stands finally attested by the Tehsildar and Assistant Settlement Officer exercising the powers of Assistant Collector 1st Grade and Collector respectively. Instructions regarding the supply of copies in this regard have been issued after approval by the third respondent. It has categorically been contended that settlement staff have not handed over settlement records to Moha! staff where records are not complete. It is pointed out that if all the settlement records are kept by the settlement staff till the assessment is complete, which takes sufficiently long time, then the public will be put to a lot of inconvenience as it takes a few years to complete the assessment of the land revenue. The other reason given is that whenever measurement is complete in a particular area, the settlement staffs are moved to other area and in such circumstances, records are bound to be handed over to the revenue staff on Mohal side for safe custody and for day-today working like issuance of copies of revenue records and girdawari etc.
12. The preparation of papers for demarcated protected forests out of the Government waste land which are declared protected forests after following prescribed procedure under the Indian Forest Act and Rules framed thereunder by the Settlement staff, is admitted. It is contended that they have legally and validly been prepared after observing the provisions of Chapter IV of the Indian Forests Act and the executive instructions of the Government for carrying out a forest settlement. Naksha Bartan pertaining to the rights of right-holders in the forest are stated to have been determined and consequently prepared under the provisions of the H. P. Forest (Settlement) Rules, 1965, after due inquiry and investigation by the Forest Settlement Officer. It is contended that fresh records relating thereto have been prepared on the basis of old record by recording the existing rights only. The carving out of new DPF arbitrarily has been denied.
13. Reply has been filed by the 4th respondent on the affidavit of Shri T. G. Negi, I.A.S., Settlement Officer, Shimla and Kinnaur Districts. This respondent has also raised the same grounds as have been raised by the third respondent. According to him, there is neither any legal nor procedural flaw in the current settlement operation conducted in the area in question. Both respondents point out that settlement is not complete only with regard to assessment. Otherwise, record for all practical purposes is complete. Further, that periodically jamabandi is not prepared because the assessment of land revenue has not been finally attested, otherwise all other items in jamabandi are authenticated during girdawari. It is further pointed out that on the basis of transaction also, the mutations are recorded and attested.
14. In rejoinder, petitioners have reiterated their stand as detailed in the petition and controverted the contentions raised by the respondents. It is submitted that respondent No. 3 assumed jurisdiction to take a decision on the merits of the grievances contained in the representation as also in the writ petition and as such, order (Annex-ure R A) passed by respondent No. 3 has to be considered, as his reply to the instant petition. It has specifically been contended that instructions relating to the procedure contained in Appendix XXI of Settlement Manual with respect to up-dating of record of rights by way of re-settlement, have not been followed nor the State Government had any power under Section 33 of the Act to make new record of rights for an estate where record of rights already existed. Petitioners emphatically state that while carrying out revision of record of rights of the area in question, respondent No. 4 completely ignored the provisions of Sections 33, 38 and 45 of the Act and the instructions contained in para 222 and Appendix XXI of the Punjab Settlement Manual. According to the petitioners, the various changes brought about in the record of rights during the period commencing from the last settlement till the current settlement had already been reflected even during annual revision of record of rights and incorporated therein by means of mutations. These factors were in the mind of the State Government at the time of issuance of the above mentioned two notifications. It is further alleged that the record of rights have carelessly been prepared without proper supervision and control and without observing the provisions of law as also instructions contained in the Settlement Manual.
15. The allegations made in the petition disclose lamentable state of affairs in the ongoing settlement operations, particularly in the areas in question. It is well settled that even if a person moves a writ petition in his private interest, if he raises questions of public importance, such as in this case regarding the conduct of the revenue staff (settlement) as also the controlling officer, like 4th respondent, besides misuse of power by men in authority and power, it is the duty of the Court to the public that the truth and the validity of the allegations made be inquired into. It is in furtherance of public interest that an inquiry into the state of affairs of public institution becomes necessary and private litigations assumes the character of public interest litigation and such an inquiry cannot be avoided if it is necessary and essential for the administration of justice.
16. Where allegations of such a nature are made, the Courts are bound to take judicial notice, though Courts should be cautious. The Courts should scrutinize these allegations with care so as to avoid being in any manner influenced by them in cases where they have no foundation in fact. In this task which is cast on the Courts, it will be conducive to have disposal and consideration of them if those against whom allegations are made come forward to place before the Court either the denials or their version of the matter so that the Courts might be in a position to judge whether the onus that lay upon those who make such wild allegations on the part of the authorities, has been discharged in proving it. It is in these circumstances that, in order to judge the authenticity of the abovesaid version put forth by the petitioners, as also in order to appreciate the rival contention of the parties in view of the claim and counter-claim made by them with respect to the on-going settlement, this Court sought the basic information by passing an order on 27-9-1991 to the following effect:
"In order to appreciate the arguments of the learned Counsel for the parties, inspection of records was conducted "on test check basis". During the inspection, major variations/discrepancies were found. The 'lathas' and 'Momis' do not tally with one another, although these have been prepared from the same "Musavi", No trijunction pillars, that is, 'Sehada Jats', exist on the spot though shown on the maps and it has been admitted by the respondents. Such 'lathas' and 'Momis' have been made the basis for special revision and preparation of current revenue record. Many more major unexplained variations have been found in the current record in respect of agriculture estates or proposed DPF etc. which may have adversely affected the rights of the respondents-estate-right-holders.
Therefore, in order to clarify the factual position, the respondents are directed to file a supplementary affidavit stating:
i) That in which of the agricultural estates or sub-estates in which old record, that is, 'Lathas' and 'Momis' have been used and in which of the estates and sub-estates new record, that is, 'Lathas' and 'Momis' have been used for effecting the revision.
ii) Whether the new record, that is, 'Lathas' and 'Momis' tally with one another as also with the old 'Musavi' from which both of them were prepared.
iii) Whether the proposed D.P.Fs for which notifications have been issued by the Government were incorporated in the old revenue record and, if not, on what basis the records of proposed D.P.Fs were prepared.
The learned Advocate General who appears on behalf of the respondents prays for and is granted two months to file the supplementary affidavit. The case be listed thereafter."
The respondent No. 4, on the basis of the affidavit of Sh. S.K. Justa, Settlement Officer, Shimla and Kinnaur Districts, provided the following information.
17. That during the current settlement in tehsils Rohru, Chirgaon and Dodra Kawar, old revenue estates, numbering 169 were split up into 361 new estates (239 as agricultural and 122 Demarcated Protected Forests) (hereinafter shortly referred to as "DPFs"), and Dhars i.e. pasture land, on the basis of classification and their record of rights were prepared accordingly. In order to up-date the record of rights of all the new estates, old lathas, jamabandies, Momis, mutations and musavies were taken as basis. Tehsilwise position pertaining to Dodra Kawar vide Annexure A, Rohru vide Annexures B and C and Chirgaon vide Annexures D to E has been given.
The statistical information about estates/ sub-estates is as under:
Tehsil Number of revenue estates as per previous settlement Number of revenue estates as percurrent settlement operations Agricultural D.P.Fs/ Total Estates Sub-estates Dhars Dodra Kawar 3
-8 12 20
Chirgaon 69 42 61 49 152 Rohru 97 74 54 61
189.
18. In respect of tehsil Dodra Kawar, respondents admit that the record of rights during the on-going settlement operation, in respect of agricultural estates had been compared with the old one, the new lathas tally with the new momies in all the estates.
19. As regards tehsil Rohru, it has been stated that in 101 agricultural estates new lathas and momies tally with one another, however, there are minor discrepancies in other 25 agricultural estates.
20. In Tehasil Chirgaon record shows that in 55 agricultural estates, new lathas and momies tally with one another (Annexure D) and there are minor discrepancies in two agricultural estates (Annexure E). Eight agricultural estates are still under settlement operation (Annexure F). It is pertinent to detail that in respect of comparison of new lathas and momies withold musavies of all the three tehsils, namely, Dodra Kawar, Rohru and Chirgaon, the respondents admit that outer boundaries do not tally in all cases. The reasons stated are that in certain Muhals boundaries have been changed during the current settlement in consultation with the local residents and also keeping in view natural dividing factors as a result of which, there is addition/deletion in area and hence change in outer boundaries. The discrepancy in the new and old momies and lathas is stated to be due to tremendous increase in the number of fields as a result of transaction, alluvium and diluvium factors and change in land use etc. It is also pointed out that there were unmeasured patches of land in and outside the old revenue estates existing since old settlement. Area of these unmeasured patches was neither calculated nor included in the total area of the new revenue estates at the time of previous settlement, although it was maped and included in the old musavies which were shown as zero area in the record. During the current settlement these numbers were measured and the area was calculated and included in the concerned agricultural estates/DPFs/Dhars/Charagah and this resulted in non-tallying of boundaries in the old musavies with the new lathas aned momies.
21. As regards information of 38 agricultural estates, the respondents did not compare the new lathas and momies with old musavies on the ground that momies of these villages/estates were reported to have been washed and destroyed in the flood caused due to heavy rains during 1990 (Annexure G) and a report from the Deputy Commissioner, Shimla is to that effect (Annexure H).
22. As regards DPFs, the information supplied by the respondents show that 122 DPFs/Dhars were carved out of the old revenue estates in the early sixties and they were notified as DPFs somewhere in 1952 and since then they have become part of the old record. They have been measured a separate DPF estates.
23. In respect of the proposed DPFs, it has been revealed that Forest Deparment supplied proposal of 198 undemarcated protected forests (shortly hereinafter referred to as "UPFs") in the entire area comprising the three tehsils. The proposed DPFs in the old record-of-rights existed in the form of pasture with and without trees and Government waste land. It is pointed out that in the on going settlement, 168 such proposed DPFs have been demarcated but the entire process in respect of only three DPFs have been completed regarding which Government has issued notification (Annexure I). It is pointed out that the area of proposed DPFs exists in the old record but under different nomenclature. The process of preparation of these proposed DPFs has been started/made from the record of rights and history files prepared and maintained by the Forest Department.
24. We have heard the learned counsel for the parties at length. We have also inspected substantial revenue record prepared during the current revenue settlement operations in respect of the revenue estates/sub-estates, given below, on test check basis on the production of the current as also the old records pertaining thereto by the respondents at the behest of the petitioners and information sought for in relation thereto by this Court:
Tehsil Agricultural estates, sub-estates.
DPFs Proposed DPFs (being proposed for issuance of notifications under Indian Forest Act).
Dodra Kawar
1. Dodra-I
2.
Dodra-Il Nil I. Sailgad.
Chirgaon Nil
1. Dodra 2. Ambot Nil.
Rohru
1. Kotru
1. Sharog
2. Karassa
2. Barara-I
1. Pherli.
3. Bahli
4. Banchuna
5. Ukhli
6. Kanda
7. Adhai
8. Unlapu.
25. In order to understand and appreciate the arguments, advanced by the learned counsel for the parties with respect to the controversial points arising in the instant case, it would be absolutely necessary to narrate the principal characteristics of the land and the people, respectively of Himachal Pradesh. The very word 'Himachal' is explicable in terms of two distinct Sanskrit words, namely. 'HIMA' and' ACHALA'; and literally these words connote unshakable snowy mountain or range. Since the northeastern fringes of this Pradesh lie in the Himalayan ranges, the word 'Himachal' also simultaneously reminds us the aura of the Himalayas i.e. the 'Abode of snow'.
26. Himachal Pradesh, as its name suggests, lies in the lap of the Himalayas. Its climate, flora and fauna, the life and outlook of the people are largely conditioned by that one single factor. Nature has a rugged beauty here. Rolling hills for miles and miles, interspersed with tinkling mountain streams; in season, flowers abound, and winter brings its snows, turning the entire landscape into one stretch of shimmering white; the rivers abound in fish; lakes provide boating and fishing; and the forests harbour wild life of a large variety-Ibex, Thar Serow, Goral, bear, and, in certain areas, snow leopard. Five rivers flow through this hill State, namely, Chandrabhaga, Ravi, Vi pasha (Beas), Shutudru (Sutlej) and Yamuna. But these are only the big systems; in addition to them, numerous small rivers and thousands of waterfalls, streams rills and rivulets provide water for irrigation and a cool drink for the weary wayfarer. Most of them are sources of power too.
27. The vast majority of the people of Himachal are Hindus. There is hardly any cultural disparity between the lower caste and the upper castes. They wordship the same Gods and goddesses. Racially, the people of Himachal Pradesh are a mixed group. The early tribes were assimilated by the Aryans. At a later period there was an influx of Rajputs fleeing under the pressure of Muslim invaders. They too, in course of time, got completely absorbed in the local population. In the racial strains there has also been the impact of the proximity of Tibet to the northern region.
28. This Pradesh, having become a full fledged State on 25th January, 1971, is one of the most picturesque regions of the country. Its border Districts of Kinnaur and Lahaul-Spiti have international common boundary with Tibet in the East and thus, this State has strategic importance because of its hills in the South-East serve as a watch-tower to northern plains.
29. From revenue administration point of view, the State has been divided into three divisions, viz, Kangra, Mandi and Shimla.
The area in question, thus, forms part of Shimla Division, where the current settlement operation is being carried on. The economy is pre-deminently agricultural with 95% of the people engaged on land. The soil is rocky and there isn't enough land for all and this fact has made the people of this Pradesh hardy and capable of great deal of endurance.
30. Now adverting as to the basic necessity of settlement, its origin and its systematic development, it is important to note that India is by far an agriculture country, deriving her wealth mainly from the bounties of nature. Land is a factor of utmost importance in the economic reform of India and its administration a matter of deep concern for any government of this country. Alike under the Hindu, Muhammadan and Sikh Rules, land revenue was the chief source of income to Government which it always claimed from the persons in whom it recognised a permanent right to occupy and till it or arrange for its tillage. This fact basically necessitated the introduction of settlement and consequent preparation of record of rights and liability of inviduals in the land. From the very beginning of British rule in India, steps were taken to achieve this object and what has been accomplished in this direction can be noticed by comparing the records of pre-British days with those existing at present. The careful perusal thereof reveals that in the intitial stages, the State claimed share of the produce of the land in kind and with the passage of time, it switched over the claim to the said share into an annual money payment fixed for a term of years. This was done because the British officers gradually learnt that if land revenue was to be collected in this shape with some sort of regularity, the demand must be pitched well below the native standard. The tendency to moderation was reinforced by considerations of humanity and a belief that the best way to promote the extension and improvement of agriculture was to render the land a source of increasing profits to its owners by limiting the land revenue and making it incapable of enhancement for a considerable period. This policy is especially associated in the north-west of India with the names of Robert Merttins Bird and James Thomason, and the first administrators of the Punjab brought into this province the lessons learnt in their school.
31. Thus, the primary object of settlement had been assessed the land revenue affixing liability on the persons in whom the State rcognised a permanent right to occupy, which necessitated the framing of a record of rights. In other words, a settlement, therefore, consists of two main branches;
(a) the assessment; and
(b) the framing of a record of rights.
The main features of the settlement policy are:
(a) A proper field survey with the results embodies in a map and field register.
(b) A full enquiry into the rights and liabilities of all persons having an interest in the soil, and the record of these rights and liabilities in permanent registers.
(c) A moderate assessment based on general considerations than on an attempt to deduce the demand from an exact claculation of the landlord's net assets and the share thereof claimable by Government.
32. It would not be out of place to mention that under Section 10 of the old Punjab Land Revenue Act, 1871, settlements were classified into three kinds as follows:
SUMMARY SETTLEMENT (1) a summary settlement is a provisional settlement made pending a first regular settlement; the declaration of the Local Government that a settlement was summary shall be conclusive proof that it was so;
FIRST REGULAR SETTLEMENT (2) a first regular settlement is a settlement in which the revenue is assessed, and a record-of-rights is, for the first time, formed;
RE-SETTLEMENT (3) a re-settlement is a settlement, sub-seqeunt to a first regular settlment in which either the revenue is re-assessed, or the record-of-rights is revised, or in which both these processes are conducted.
33. As noted above, according to Section 16 of the Act, no presumption of truth was attached to the entries in the records of summary settlement. Section 44 of Punjab Land Revenue Act corresponding to Section 45 of the H.P. Land Revenue Act applies even to the entries in summary settlements though they have not the same value as regular settlements. Presumption arising from entries in a regular settlement cannot be rebutted by entries in earlier summary settlement. A proviso has been added to Section 45 of the Act to the following effect:
"Provided that notwithstanding anything contained in this section any entry made in the areas comprised in Himachal Pradesh immediately before 1st November, 1966 (during the period between the first day of April, 1948 and the first day of April. 1956) in record of rights or in a periodical record whereby the land is shown as under self cultivation shall not be presumed to be true."
The entries of the summary settlement in regard to rights in land cannot have the same force as those of the subsequent regular settlement at which a detailed record of rights was prepared after full enquiry.
34. The systematic development of settlement policy brought about the use of cash rents as the basis of the Settlement Officers' estimate of half assets. Latter, with the introduction of the reformed scheme of Government in 1919 began an agitation for the general re-casting of the policy and standard of land revenue assessment. The ball had been set rolling by the recommendations of the Joint Parliamentary Committee of 1919 which considered that these matters should be the subject of legislative enactment. A bill to give effect to the proposal was introduced in the Provincial Legislative Council in 1922. After various vicissitudes it eventually became law, in a form very different in many important matters from that in which it had been originally introduced in 1928, in the Punjab Land Revenue Amendment Act 111 of that year.
35. The Act codifies the main principles governing the standard of assessment, the amount of enhancement permissible, and the period of settlement, and provides machinery to make rules for determining the money-value of net assets, allowances of exemption from assessment for improvements, the extent of enhancement permissible, and other minor matters. The new Act lowers the maximum standard of assessment from one half of the net assets to one-fourth. It limits the increase permissible in any assessment circle to 25 per cent, over the former assessment, except where canal irrigation has been introduced since the last assessment was imposed, and fixes the period of assessment, except in undeveloped tracts, at 40 years. The rules which cover all the principal processes involved in revising assessments are brought under the control of the council and the revenue payers are consulted during their progress to a much greater extent than previously. But with the exception of the changes of principle indicated above the new Act and the rules thereunder in the main merely codify the existing instructions and procedure.
36. Thus, briefly stated, the existing instructions and procedure with respect to the carrying out of the settlement operations in an area are contained in Punjab Settlement Manual. Apart from it, the Financial Commissioner has been empowered to frame rules on various matters, touching the carrying out of the settlement (sic) an area. Under the provisions of Section 54 of the Act, the general re-assessment of an area cannot be undertaken without the sanction of the local Government. The latter (local Government) before granting such sanction examines the Forecast Report indicating the expected financial results of the re-assessment. All that the government requires is to be satisfied that the financial prospectus are such as to justify the undertaking of the general re-assessment, feeling that there are other reasons which make a settlement desirable. Rules also require that leading agriculturists and organisations of Zimindars shall be consulted before the report is prepared. The Forecast Report includes preliminary subjects to be dealt with which generally are :
(a) Physical features;
(b) Rainfall;
(c) Present assessment circle and classification of soils;
(d) Character of agricultural population; and
(e) Any factors affecting the general prosperity of the tract as an increase in water logging.
Such report should high light the development of resources, history of prices since last settlement with an estimate of the effective rise which has occurred, estimate of probable enhancement and other matters. Thus, while reporting on the maps and the records. The Deputy Commissioner is under an obligation to see how far he thinks it will be necessary to re-measure the villages and to make a complete revision of their records. He should also point out by clearly stating:
(a) whether a professional riverian traverse survey has been previously carried out and in what years;
(b) whether an adequate number of the pillars marking corners of squares which were demarcated and erected by the previous professional survey on the higher margin of the riverian area under inundation are still in existence.
37. Once the sanction on the basis of the Forecast Report is granted by the Government for undertaking of a general re-assessment or preparation of record of rights, the settlement operation is started. Guidance to Settlement Officers in all work bearing on assessment and the preparation of the record of rights, i.e., all matters connected with the land revenue settlements are contained in Punjab Settlement Manual. This Manual has been prepared and instructions contained therein amended with the passage of time, though not authoritative in matters of opinion has been issued after examination by the Financial Commissioner with the approval of the Government of erstwhile composite Punjab, as a guide to settlement officers. It describes the present policy and procedure in the matters of land revenue settlements. The directions pertaining to the policy and procedure to be followed in assessment and preparation of the record of rights to Settlement Officers have also been made applicable to the entire area contained in the State of H.P As already observed, the Financial Commissioner has been vested with the powers to issue instructions and frame rules under the provisions of the Act from time to time in augmentation of the instructions contained in the Manual.
38. For the purposes of deciding the controversial points arising in the instant lis, suffice it to state that procedure connected with the complete measurement of a village for carrying out first regular settlement has been detailed in Appendix VII pursuant to instructions contained in paragraph 256 of the Manual whereas instructions for binding up-to-date at re-settlement the field map of the previous settlement without recourse to re-measurement in accordance with paragraph 222 of the Manual are contained in Appendix XXI of the Settlement Manual. In the former, the procedure to be followed is :
39. The Kanungo or Patwaris having collected the owners in the village, puts the last jamabandi before him, and draws up a genealogical tree of the owners; or if there is one in the previous records; correct that to date. In doing this, he compares the genealogical tree and the jamabandi holding by holding, and explains the entry to the owners. The comparison of the two papers brings to light all omissions from the jamabandi connected with the descent of the owners, and omissions from the jamabandi due to transfers, partition, changes of tenants and other like cases are pointed out by the owners. Forms of the khatauni, index and list of khataunis totals, with necessary instructions, as contained in Appendix VII, are as appended therein.
40. In the latter, the first thing, a Settlement Officer considers is to what extent he can for his special revision of the record of rights, utilise the existing maps and records without resorting to re-survey. In deciding that question, what is required is to give the people a map and record sufficiently accurate for their needs which may be summed up as (1) avoidance of disputes and means of deciding them promptly when they do arise and (2) a fair distribution of the land revenue over the holdings of each village. The Settlement, in this case, begins with an examination of the existing maps, i.e., the map of each estate forming part of the record of rights in accordance with the instructions contained in Appendix XXI of the Manual. This is done for the purpose of making a choice between re-measurement and revision. Thereafter, in the villages in which re-measurement is necessary, the survey is carried out on whichever of the systems prescribed in Chapters VI and X of the Mensuration Manual is the more suitable. The other villages, which will generally be the majority, the next thing to decide is whether any of the existing copies of the settlement map, i.e., parat tahsil (Tehsil Copy) of the settlement, Shajra; and Latha (the copy on cloth used by the patwari in the girdawari), shall be utilised for the work in the field or whether a copy shall be especially made for this purpose. The instructions in paragraphs 291 to 294 of the Settlement Manual apply to map correction as well as to re-measurement. Survey land record work is required to be carried out simultaneously, and a patwari is not to be allowed to commence field work in a second village until he completes the jamabandi of the first. The inspection held while field work is in progress, should be sufficient to bring that errors to light; and there is no need to have at the end a minute investigation of the finished work for the purpose of detecting errors or to collect the patwaris in one place for that purpose. In each tehsil, the whole work; including fields survey and the preparation of jamabandies; should be completed in two years at most and the settlement officer should indicate as to what of the villages should be finished in the first year and what villages in the second and which of them are so large that they must be commenced in the first year in order to be finished by the end of the second. The work of map correction is best and quickest done by the patwari of the concerned circle with his previous knowledge of his villages and the patwari staff should, therefore, be supplemented by temporary establishment only to the extent necessary to ensure the tehsil being finished within two years from the commencement of the work. The instructions contained in the note to paragraph 8 of Appendix VII also to corrections of the field map carried out under Appendix XXI.
41. It would be pertinent to mention that the State Government ordered to conduct forest settlement in Rohru tehsil by issuance of Notification No. FTS(P)3-6/80 dated 21-2-1980 under Rule 4 of the H.P. Forest Settlement Rules, 1966, authorising the Settlement Officer, Kangra and Shimla Districts, to inquire into and to determine the existence, nature and extent of rights of government and private persons in or over the forest land or the waste land comprised in Shimla District. The Government conferred these powers on the Assistant Settlement Officers, Rohru, Rampur and Kinnaur in their respective jurisdiction by subsequent Notification of even number dated March 20, 1987. A close perusal of the entire record pertaining to forest settlement would show that the respondents have committed the same illegalities as it committed in the case of land revenue settlement by ignoring the records of old forest settlement of 1904-11 of this tehsil, now trifurcated into three tehsils within which the area in question is covered. The last settlement was carried out by M/s. Hart and Gibson, the then Deputy Conservators of Forests. Suffice it to state that the aforementioned notifications have been based on the premise that the respective rights of the people and the government in forest and waste land are to be revised. The record of the old forest settlement of 1904-11 reveals that the line between the land to be demarcated as forests and the land that was to be left for expansion of cultivation and grazing had been drawn finally, In any case, the record of the old forest settlement was to be made the basis of the current settlement. The record of the current settlement pertaining to forests reveals that new estate (mohals) out of the DPFs are being created though these exist as per the last forest settlement. Simultaneously, new forests have been created out of the land which, according to the last forest settlement, has been entered as the grazing land and over which the estate-right-holders concerned enjoy rights of users. They have been shown in the revenue record as "Banjar Kadim" lands. Besides, field maps, jamabandies pertaining to the forests and Naksha Bartans indicating the rights of the people in the forests are being prepared afresh. As the form of these documents so prepared in the current settlement pertaining to the area in question is the same as for revenue villages, we intend to deal with the questions jointly.
42. It is in the light of the above practical aspect of the current settlement scheme being brought into operation, that we now proceed to deal with the controversial points which have arisen in the instant lis.
43. Mr. K.C. Chauhan, learned counsel for the petitioners, has vehemently urged that the current settlement operation under the above said two notifications is for making a special revision of the record of rights but it has been changed into first regular settlement. In support of his arguments, our attention has been drawn to the title of compendium of instructions, wherein the current settlement has been recorded as "Bandobast Jadid" (new settlement). Further it has been urged that the compendium of instructions issued by the Settlement Officer are not only in conflict with the statutory provisions as also in contravention of the directions of third respondent (Financial Commissioner) contained in letters dated June 6,1986 (P-22) and dated February 6, 1980, forming an enclosure to the order passed by the third respondent on the representation of the estate right-holders .of Rohru. In this regard, our attention has also been drawn to various documents prepared in the current settlement pertaining to formation of estates, 'Naksha Bartans' wazib-ul-urs and other ancillary work done by respondent No. 4.
44. On the contrary, Mr. Chhabil Dass, learned Advocate General, appearing on behalf of the respondents, has vehemently contended that the on going settlement has correctly been recorded as "Jadid Bandobast", which means current or present or new settlement. He has relied upon the observations made in the case of Ravindera Chandra Ghosh v. Arun Kumar Ghosh, AIR 1945 Cal 129. In order to augment his submissions, he has for various reasons, like, complete re-measurement and fresh assessment of land revenue, switching over to metric system, land reforms, land of some areas in Rohru being un-measured etc., pointed out that on specific procedure has been provided for special revision; that provisions of Ss. 37 and 38 of the Act do not fully apply as in view of the volume of work, notices etc. cannot be issued to every one. According to his submissions, the revision involves changes yet to be made in view of the spot position during land measurement. In this connection, para 81 of the Punjab Settlement Manual has been quoted. He has further pointed out that even though the current settlement has been described as "Jadid", but old record has been kept in view while up-dating the record of rights. Learned Advocate General has also attempted to justify the issuance of compendium of instructions by the Settlement Officer and preparation of documents etc. referred to above. In addition, it is stated that the current settlement has been correctly recorded as "Jadid Bandobast" (new settlement). Not only for administrative convenience but also for the reason that complete re-measurement of the revenue estates in the above said three tehsils on a quite different scale and system was required to be done even according to the Forecast Report drawn by the Settlement Officer and approved by the Government of H.P., whereby permission to re-measure the whole estates on metric system was accorded. In the light of this fact, old Shajra is not being amended and brought up-to-date on the old scales but totally changed to a different system of "metric scale". The another reason stated is that some of the waste land and forecast areas were not measured during the previous settlement and their measurement now cannot be treated as revised.
45. We may stated that the case law cited by the learned Advocate General in support of his argument that recording of current settlement as "Jadid Bandobast" is correct, is not applicable to the peculiar facts and circumstances of the point in question for the reasons discussed in the subsequent paras. In the aforesaid case, the Court was involved in interpreting the word "Kabuliyat" with reference to "Malguzari Zadid". A lease of the land for 99 years under Bengal Tenancy Act was created by the landlord in favour of the tenant. The latter executed a "Kabuliyat" and undertook to pay "Jadid Malgujari" and "Jadid Abwab" (cesses) apart from the lease money agreed upon as and when such new land revenue and cesses were to be levied by the competent officer under the law. In the meantime, a re-settlement for 30 years was done by the Settlement Officer resulting in re-assessment of land revenue and cess. In those circumstances, it was held that "Jadid" includes new kind also but the newness denoted by the term is not confined to newness in kind only. It included newness in amount and kind as newness as well, whether such revision is under the existing law or under any future law.
46. In order to solve the abovesaid controversy, we deem it necessary to deal with the question as to what is the nature of the settlement under the two notifications issued by the respondent No. 1. At the cost of repetition we may state that there is no controversy in between the parties that first regular settlement in Tehsil Rohru was carried out between 1887-1890 by Rai Sahib Mian Durga Singh. The revised settlement took place in the year 1911-14. The government has issued two notifications dated 23-8-1979 for the re-assessment of the land revenue and preparation of record of rights. We have already observed the mode of first regular settlement, in which the basic records are prepared while in the revisional settlement, there are two methods which are adopted for preparing/revising the record of rights :
(1) only those khasra numbers are measured and their record of rights are prepared which have been created either on account of partition of land or allotment of government land in nautor etc. after the last regular settlement and revisional settlement;
(2) all khasra numbers are re-surveyed, re-measured and fresh record of rights are prepared keeping in view records of the last settlement.
As per the admitted case of the respondent, the Settlement Officer issued detailed instructions after getting them approved from the Government, in which it was mentioned that the on going settlement in the aforesaid areas shall be called "the second special revision settlement" and it shall not be called "bandobast jadid". However, subsequently revised settlement instructions were issued for calling it "Jadid" because the measurement in the aforesaid three tehsils was being done de novo and land revenue was also freshly assessed.
47. It is to be noted that in a "Jadid" settlement fresh survey and measurement and assessment of land revenue are important ingredients. According to our considered view, the intention of the current settlement operation under the abovesaid two notifications when read in the light of the forecast report is to prepare record of rights where these do not exist and revision and updating it where it exists and is found to be necessary.
48. The word "Jadid" is Urdu word which means "Naya-Taja". A procedure pertaining to special revision of record of rights as contained in Appendix XXI of the Settlement Manual includes both revision and re-measurement. It cannot be said that no specific procedure has been provided for special revision. The aforesaid Appendix XXI lays down complete procedure. As per the procedure so provided, the first thing a Settlement Officer now has to consider is as to what extent he can, for his special revision of the record of rights, utilise the existing maps and records without resorting to re-survey. Thus, the settlement must begin with an examination of the existing maps, i.e., the map of each estate forming part of the record of rights under Section 32(2)(c) of the Act to enable the Settlement Officer to decide whether by revision they can be made sufficient for these purposes. Method of revision has been provided in para 9 of this Appendix which lays down that in the villages in which re-measurement is necessary (and in riverian tracts re-measurement will even be necessary), the survey will be carried out on whichever of the systems prescribed in Chapters VI and X of the Mensuration Manual is the more suitable. For the other villages, the next thing to decide is whether any of the existing copies of the settlement map shall be utilised for the work in the field or whether a copy shall be especially made for this purpose. While carrying out survey, for the purpose of revision of record of rights, the instructions laid down in paragraphs 239 to 256 under the heading "survey" forming a separate chapter has to be followed in letter and spirit. The underlying purpose is that the settlement work must be based on accurate field survey in respect of which separate field map for each village is required to be prepared. Survey marks in the form of masonry platforms (sihaddas) in order to indicate clearly the limits of each estate are built at every point where the boundaries of more than two estates meet, as per Land Revenue Rule 33. At every angle on the boundary lying between two trijunctions platforms, mud pillars (Burjis) are erected as per Land Revenue Rule 32. Before the measurement of any estate is undertaken, the village headmen are required to put every platform in a proper state of repair and to replace any pillar that may have been destroyed, as provided under paragraph 241. Amongst other things required to be followed as per paras 242 to 244 of the Manual, a Settlement Officer is required to concern himself with the topographical survey made by the Survey Department and the cadastral or field survey made by the boundaries. The second is indispensable for his work, the first is chiefly useful to him as a means of testing the accuracy of the second. Common base line should be adopted for a large number of estates with the help of the officers of the Survey Department in laying down or checking base lines because it is beyond the capacity of the revenue staff to lay down a base-line for any great distance. In resent settlement surveys of several riverian tracts much valuable assistance has been obtained from plotted sheets supplied by the Survey Department which show in correct relative position certain convenient points (chandas) or corner of squares which have been fixed by a skeleton traverse survey run along or over the tract bordering both banks of the rivers concerned (paragraph 251). In addition, as per paragraph 256 pertaining to procedure in case of complete re-measurement, the existing instructions as to the procedure to be followed by patwaris when a complete re-measurement of a village takes place, are found in Appendix VII. The directions given there as to the soil classification are required to be compared with the remarks on the subjec'. in Chapter XIII pertaining to "Classes of Land and Soil" contained in paragraphs 258 to 267 of the Manual.
49. Sections 106-115 of the Act pertain to the erection of the survey marks. The perusal of Chapter XIII of the Punjab Settlement Manual and Chapter VI of the H.P. Land Records Manual also lay down the guidelines for conducting surveys. Part 'A' of Chapter VI deals with survey marks. Part 'B' provides definition of survey number. Part 'C' thereof deals with the mode for conducting surveys during settlement. Part 'D' lays down the procedure for correction of field maps in the interval between the two settlements. The procedure indicated under this Part reveals not only the responsibility of the revenue officer for correctness of patwari's survey but also it provides instructions regarding incorporation of field map changes, the procedure for effecting changes of permanent nature, changes due to nautor and "Hissadari Kasht", mode of preparation of tatima Shajra based on permanent changes and necessitated by "Hissadari Kasht" etc. It also deals with boundaries and diamensions of new field numbers to be shown in red ink, preparation of field book of new field number, procedure of numbering khasra number in "Kilabandi" during consolidation operations, checking of tatima 'Shajras' by Tehsildars and Naib Tehsildars, keeping up-to-date of maps, renewal of boundaries, copy of "Shajra Kishtwar", preparation of tatima "Shajra" of alluvium and diluvium tracts etc. According to Para 6.33 of the H. P. Land Record Manual, care is needed to be taken not to increase the number of fields needlessly.
Part E of this Chapter deals with Tehsil and District Maps based on Patwari's surveys. Part 'G' high lights Survey of High Hills and Inaccessible Areas. Part 'H' deals with the Introduction of Theodolite Survey. It lays down that the State Government should endeavour to switch over to Theodolite Survey depending upon the availability of the funds, assistance of Survey of India can also be taken for this survey for the fixation of control points. The use of this mode helps the preparation of the accurate field maps and chances of discrepancies are minimised.
50. In view of the above, it cannot be said that there is no specific procedure laid down for special revision of the record of rights. The re-measurements can be done in view of Appendix XXI of the Settlement Manual referred to above. It has two aspects; judicial and fiscal. The former consists of preparation of record of rights and latter of assessment of land revenue. The word "Settlement" is more of fiscal connotation as is evident from Paragraph 181 of the Manual pertaining to "Settlement with Assignees or with their heirs". Therefore, reasons like, complete re-measurement, fresh assessment of land revenue, switching over to metric system or changes effected by land reform laws or preparation of the record for administrative convenience, adopted by the respondents, cannot be held to be the basis for calling the current settlement as "Jadid Bandobast". We have already observed above that Section 33 of the Act provides three categories of settlements only, as stated earlier, and the present one as per the two notifications falls within the ambit of third category, namely, "Re-settlement".
51. Viewing this aspect from another angle, we find that recording of current settlement as "Bandobast Jadid" is in contravention of the directions of the third respondent (Financial Commissioner) contained in his letter of June 6, 1986 (Annexure P-22). Para 1 of the said letter reads as under :
"1. Nature of Settlement:
The State Government has issued two notifications under Ss. 33 and 49 of the H.P. Land Revenue Act regarding the settlement operations in Shimla District, According to the notifications made under Section 33 the record of rights of Shimla District are to be revised but supplementary instructions (Tatima Hidayat No. 1 (Page-88) envisages that the settlement is to be the Jadid (new) settlement. This instruction is contrary to the said notification of the Govt. Therefore this should be withdrawn and the settlement is to be described as second revised settlement of Rohroo/ Rampur Tehsil as the case may be. The entries of the existing record of rights can be changed within the provisions of Section 38 of the H.P. Land Revenue Act and not otherwise."
This shows that supplementary instruction No. 1 was ordered to be withdrawn by the third respondent (Financial Commissioner) and specific instructions for describing the current settlement as "second revised settlement of Rohru/ Rampur Tehsil" were issued. It is the third respondent (Financial Commissioner) who is empowered to exercise all powers conferred by the Act from time to time as occasion requires as is envisaged under Section 170 of the Act. Thus, it appears that despite specific instructions, the directions to this effect have not been complied with by the respondent No. 4.
52. In the circumstances, we accept the submissions made by the learned counsel for the petitioners and direct respondent No. 4 to describe the current settlement as "Second Revised Settlement of Rohru Tehsil".
53. Now we advert to the second limb of the submissions made by the learned counsel for the petitioners, as to whether the compendium of instructions issued by the 4th respondent (Settlement Officer), has the effect of converting the current re-settlement into that of first regular settlement of the area falling in the above said three tehsils.
54. Chapter XI, consisting of Paragraphs 226-251 of the Punjab Settlement Manual deals with "The Settlement Officer and His Establishment". The Settlement Officer is a Revenue Officer charged with the making of a general re-assessment. While engaged in the task, he is also responsible for the continuance and improvement of the regular work of the village record agency, and, when a notification directing the special revision of existing record-of-rights is issued, for the carrying out of the additional operation which such an order entails. His scheme pertaining to the settlement work ordinarily should not overlap with the ordinary duties of the patwari and Kanungo agency as also usual routine of the revenue work (Paragraph 226). He also enjoys judicial powers, though very limited (Paragraph 232). At the beginning of the settlement, the personal attention of the Settlement Officer is necessitated as provided in Paragraph 237.
55. Under Section 47 of the Act, the Financial Commissioner (Rev.) may make rules for the following matters :
1. Prescribing the language in which records and registers under Chapter IV are to be made;
2. Prescribing the form of those records and registers, and the manner in which they are to be prepared, signed and attested;
3. For the survey of land so far as may be necessary for the preparation and correction of those records and registers;
4. For the conduct of inquiries by Revenue Officer under Chapter IV; and
5. Generally for the guidance of Revenue Officer and Village Officers in matters pertaining to records and registers mentioned or referred to in Chapter IV.
The Settlement Officer is bound to follow the rules framed by the Financial Commissioner. Thus, he may issue further instructions for the guidance of the field staff on the above matters which are consistent with the provisions of the rules framed by the Financial Commissioner after approval from him.
56. Under Section 67 of the Act, the State Government or the Financial Commissioner with the approval of the State Government may for the guidance of the Revenue Officers from time to time issue executive instructions relating to all matters regarding assessment, provided that such instructions shall not be inconsistent with the provisions of the H. P. Land Revenue Act, 1954 and the rules made thereunder.
57. The Settlement Officer may issue supplementary instructions respecting assessment for the guidance of the Revenue Officers which may not be the inconsistent with the instructions issued by the State Government or Financial Commissioner but he shall obtain the approval of the State Govt. before issuing any instruction.
58. Before the commencement of settlement operations in a District under general re-assessment, the Settlement Officer shall prepare an Instruction Book (Hidayat Bandobast) respecting records and other connected matters therewith and assessment for the guidance of Revenue Officers and the staff and get the approval of State Government. He may issue supplementary instructions from time to time after approval from the State Government. Such instructions shall not be inconsistent with the provisions of the H. P. Land Revenue Act, 1954, the rules framed thereunder and any other law. In other words, there is no other provision in the Act or the Rules framed under it whereby Settlement Officer has been empowered to issue Instructions (Hidayat) during settlement. However, in case he (Settlement Officer) finds that instructions are necessary to be issued for the continuance and improvement of the regular work during the settlement he may send such instructions to the Financial Commissioner (third respondent) for his approval thereof in accordance with the rules.
59. Now the rule-making powers of the Financial Commissioner and the State, in addition to Sections 47 and 67 referred to above are provided in Ss. 18, 64, 65, 66, 106, 136(3), 168 and 169 of the Act. Section 18 empowers the State Government to make rules for regulating the procedure of the Revenue Officers in relation to matters regarding which procedure is not provided under the Act. Section 64 pertains to the powers of the State Government to make rules relating to matters mentioned in subsection (a) to (e) thereof. Section 65 lays down that before making any rules under the provisions of Section 64, the State Government shall publish by notification a draft of the proposed rules for the information of persons likely to be affected thereby. Section 66 deals with the rules and executive instructions issued before the commencement of this Act, to be followed for the purpose of assessment operations begun before issue of rules made under the provisions of Sec. 65. Section 106 prescribes powers of the Financial Commissioner to make rules for demarcation of boundaries and erection of survey marks. Section 136(3) empowers the Financial Commissioner to make rules for determining the costs of partitions under Chapter IX of the Act and the mode in which such costs are to be apportioned. Section 168 further clothes the Financial Commissioner with powers to frame rules, not only consistent with the Act but also another enactment for the time being in force, in relation to various matters mentioned in Clauses (a) to (g) of this Section. Sub-section (3) of this Section places a rider on the applicability of the rules framed by the Financial Commissioner inasmuch as the rules made by him (Financial Commissioner) under any of the provisions of this Act shall not take effect until they have been sanctioned by the State Government. At this stage, it would be proper to detail that under Section 169, the powers conferred upon the rule-making authority (Financial Commissioner) is subject to the condition of the rules being made after previous publication.
60. The conjoint reading of the above said rules show that overall rider has been put to the rule-making power of the Financial Commissioner, given under various provisions of the Act, inasmuch as, the Rules made by the Financial Commissioner are not given effect unless sanctioned by State Govt. as such, he is not empowerd to delegate the same to Settlement Officer. In the light of the afore said basic propositions, we now proceed to consider the compendium of instructions (Annexure P-21).
61. The case of the petitioners is that compendium of instructions issued under the executive instructions by respondent No. 4, had no legal sanction either of the Financial Commissioner (third respondent) or the State Government. According to them, Supplementary Instructions Nos. 1, 2, 9, 23, 25 and 32 and Instructions Nos. 64, 64(b) and 222 are unauthorised and without the approval of the Government, which have, in fact been followed by the Settlement staff while conducting the current settlement operation and thus, the cumulative effect thereof is that it had the impact of converting "re-settlement" into "Jadid Settlement". It is urged that fresh "Mohal-bandi" has been done, new documents like, "Naksha Bartans" and Wazib-ul-urs etc. have been prepared unauthorisedly without having recourse to old records. It is further pointed out that estates have been split up and existing rights of the estate right-holders, as per entries in the old record of rights have flagrantly been ignored.
62. On the contrary, the 4th respondent admits the issuance of guide-lines in the form of compendium of instructions, keeping in view the size of the village, administrative convenience of recording girdawari work correctly and revision and preparation of annual records etc. However, it is contended that these instructions had the approval of the State Government and are not contrary to law, rules and regulations. It is then contended that "Mohal-bandi" was required and new estates have been formed, as also revenue estates have been split up with the wishes of the estate right-holders after recording their statement. It has specifically been pointed out that 4th respondent did not approve the proposal of "Mohal-bandi" unless and until the right-holders were consulted in writing and their statements recorded on each individual file. On formation of estates, it is contended that it had so been done in accordance with law. According to them, rights of grazing, nautor, passage, irrigation etc. have been recorded in all the "Mohals" so prepared and the interest holders continue to exercise the same after completion of setttement operations. It is also pointed out that the settlement is not complete only with regard to assessment otherwise, the records for all practical purposes is complete (Para 34 of the reply of the 4th respondent).
63. For the purpose of considering the above said controversy, suffice it to state that as per the respondent's submission, settlement operation was started in the year 1979-80 and it is now complete with regard to preparation of record-of-rights. Further, according to the respondents, sanction for re-measurement in the entire area of the three tehsils has been accorded to by the State Government on the basis of the forecast report submitted to it. Also, it has been brought to our notice that whenever the measurement has been completed by the settlement staff and the record-of-rights are attested by the Settlement Officer, the following records are handed over to "Mohal" side:
1. Shajra Kishtwar (Mussavi).
2. Aks Momi.
3. Latha Shajra (Parcha).
4. Misal Haqiat (Part Sarkar).
5. Misal Hiqiat (Part Patwar).
6. Khasra Girdawari Bandobast.
7. Khatauni Bandobast.
8. Field Book Bandobast.
9. Roznamcha Fard Partal (Bandobast).
10. Mutfaraq Naqshazat.
11. A Misalazat Mahal Bandi.
12. Latha or Momi Sabaq.
13. Jamabandi Aakhir Sabaq.
14. Register Intqalat Bandobast.
15. Khasra Girdawari Sabaq.
16. Missal Tariqa Bachh.
17. Index Map.
In other words, above referred documents are complete and have been handed over on "Mohal" side. Now, the case of the respondents is that settlement operations was started pursuant to the Instructions contained in compendium of instructions (Ann. P-21) which had the approval of the State Government. '
64. All said and done, the Settlement Officer (4th respondent) does not possess the rule-making power, nor he is empowered to issue instructions for the guidance of the field staff of his own. No doubt, on executive side for the purpose of administration of the work pertaining to settlement, he can prepare an Instruction Book (Hidayat bandobast) respecting records and other connected matters there with and assessment, for the guidance of the Revenue Officer and the staff but this should not be inconsistent with the provisions of the Act and the Rules framed thereunder and should have the approval from the State Government. We have already observed ante that the Settlement Officer is bound to follow the rules framed by the Financial Commissioner (third respondent).
65. In the instant case, we find letter dated June, 1986 (Annexure P-22) on record which relates to the subject "Approval of Compendium of Instructions". This letter has been addressed by the Deputy Secretary (Rev. II) to the Government of Himachal Pradesh, Shimla-2 to the 4th respondent. It has been pointed out therein that Supplementary Instruction 1 being contrary to the Notification dated 23-8-1979 and supplementary Instruction No. 23 being contrary to the provisions of the Settlement Manual were liable to be withdrawn. Further, this document reveals that in case of revised settlement, as in the instant case, a fresh "Mohal Bandi" altogether was not required. Para 13 thereof also shows that supplementary Instruction No. 25 was redundant and the policy pursuant thereto was yet to be made and, therefore, that instruction was also liable to be withdrawn; Instruction No. 222 relating to the classification of the land was without prior approval of the Financial Commissioner amending the earlier classification. In the circumstances, 4th respondent was directed to comply with the directions so issued. It would be appropriate to detail the said directions flowing from Annexure P-22, in verbatim so far as they relate to the current settlement:
" 1. Nature of Settlement:
The State Government has issued two notifications under Sections 33 and 49 of the H.P. Land Revenue Act regarding the settlement operations in Shimla District. According to the notifications made under Section 33 the record of rights of Shimla District are to be revised but supplementary instructions (Tatima Hidayat No. 1 (Page 88) envisages that the settlement is to be the Jadid (new settlement). This instruction is contrary to the said notification of the Govt. Therefore, this should be withdrawn and the settlement is to be described as second revised settlement of Rohroo/Rampur tehsil as the case may be. The entries of the existing record of rights can be changed within the provisions of Section 38 of the H.P. Land Revenue Act and not otherwise.
2. Estate Formation (i.e. Mohal Bandi):
Para 2 (Page 3) and supplementary instructions No. 2 (Page 88). In case of a revised settlement a fresh Mohal Bandi altogether was not required. It is presumed that the boundaries of the villages as per the whole settlement have remained by and large intact but where on 'Chuk' (revenue estate) has been splitted up into more than one, all such cases should be sent to F.C. for scrutiny and approval under para 124 of the Settlement Manual. It is presumed that consent of the right holders for doing so has been obtained. If this has not been done after publicity in the estate concerned, the statements of the right-holders be recorded and sent along with "Mohal Bandi" files.
3. Tatima Hidayat-23:
The provisions of para 124 of the Settlement Manual envisages partition of Mohal based on some natural geographical factor or complete partition or clubbing based on rights of people and not for convenience of measurement or smaller size villages or other convenience. The instructions being contrary to the provisions of Settlement Manual, should be withdrawn.
4. Instruction No. 64 (page 18):
The detailed instructions about the rules of succession in tribal areas should have not laid down in the instructions. The basis of the rules laid down in these instructions are not known. Such authoritative instructions can be based on the customary rules laid down in Wajib Ulraz. It is sufficient to say that the Hindu Succession Act does not apply to succession to Scheduled Tribes.
Resultantly the succession would have been governed by customs prevailing in each locality or a general customs prevalent in the district. These should be elaborately laid down in the Wajib Ulraz after proper inquiry from the people and attested as per instructions in the Settlement Manual, This instruction should be amended as above.
5. Instruction No. 64(b):
This is illegal as there is no provision under the Hindu Succession Act to adopt the provisions of that Act by Scheduled Tribes. The Act specifically excludes the Scheduled Tribes and no executive instructions can be issued to the contrary. The instruction should be withdrawn.
6. The rules of succession for Christian and Muslims laid down in Instruction Nos. 65 and 66 should have not been incorporated in the instructions. Therefore, you may kindly intimate as to on what basis these rules have been laid down and whether they have been cleared by the experts on Christians and Muslims law.
7. Regarding instruction No. 185, you should issue revised instructions so as to make it clear as no tenancy can be created on land acquired for the Government.
8. Instructions Nos. 189 to 195 (Pages 39-40) :
The rights already recorded in the Forest Settlement of the area be kept intact and no deviation therefrom should be made. No fresh forest than those of the last forest settlement should be created without the sanction of the Government. For creation of such forest the procedure as contained in Indian Forest Act Chapter-IV be followed meticulously. If some such forests have been created, the files with the proposals be sent to this office properly processed under the law.
9. Instruction No. 222 (Pages 44-48):
The classifications of the land was conveyed vide FC's letter No. R-2F (8)1/80 dated 6-2-1980. It appears-from the instructions that new classes of land have been introduced. This could not have been done without prior approval of the FC amending the earlier classification. The classification not got approved should be got deleted from this records prepared during settlement. The classification of "Charagah Drakhtan" be deleted as in due course the Forest Department is likely to treat such areas as forest resulting in restrictions of rights of easement like grazing of cattle etc. by the people.
10. ..........
11. ..........
12. ..........
13. Tatima Hidayat 'No. 25:
This has become redundant and this policy is yet to be made. It should be withdrawn.
14. He may intimate as to on what basis the date viz. 3-10-1975 has appeared in Tatima Hidayat 38. As a matter of fact, uniform instructions are required to be issued. This may be done now. With regard to those tenants involved in resumptions of land by landlords for personal cultivation, the note will be w.e.f. date of the Revenue Officers' order.
15. Instruction No. 12 (Page 28-29):
Instructions as issued are relevant to those shamlats obtaining in merged areas and not to those of Shimla District. These be prepared afresh after studying this Shamlats obtaining in Shimla District.
16. Tankih Hakuk Register (No. 260): This should be done away with."
66. From the above facts and circumstances, it is clear that settlement operation relating to re-measurement in the area in question had been completed by the 4th respondent without complying with the directions as per Annexure P-22 issued by the State Government through 3rd respondent. Records had been prepared by formation of "Mohal-bandi" and splitting up of existing revenue estates and preparation of unauthorised documents with respect to the rights of the estate-right-holders. The record further shows that such like instructions had been issued at the time of starting the settlement operation in Chamba District where first regular settlement was conducted and that was not a re-settlement under the Notification issued by the State Government under Sections 33 and 52 of the Act. If we closely examine the record of rights prepared in the current settlement, we have no alternative but to hold that procedure connected with the complete measurement of a village as detailed in Appendix VII pursuant to Paragraph 256 of the Settlement Manual has been followed instead of procedure laid down for the special revision of the settlement as contained in Appendix XXI thereof. In other words, during the pendency of the current settlement and to the extent of the record of rights pertaining to the aforesaid three tehsils which have been prepared, there existed no approval of the State Government in respect of instructions and supplementary instructions contained in P-22 relating to "approval to the compendium of instructions" issued by the 4th respondent. That is to say, the settlement has been carried on without following the statutory provisions and rules framed thereunder as to the commencement of the procedure to be followed in relation to resettlement.
67. Assuming for the sake of argument that procedure laid down for the special revision of the record-of-rights has been followed by the respondent in the current settlement, their case is that in order to update the record-of-rights of all the new estates, old 'lathas', jamabandies 'Momis', mutations and 'musavies' have been taken as basis. In order to verify this aspect of the case, on inspection of record, we found glaring variations/discrepancies in the new 'lathas' and 'momis' relating to certain revenue estates. The two documents did not tally with each other although they were prepared from the same 'musavi1. We also found that no Injunction pillars (Sihadda Jats) existed on the spot though shown on the maps as per the admission of the respondents. The respondents further admitted that there 'lathas' and 'momis' were made the basis for special revision and preparation of current revenue record. We also ourselves inspected substantial revenue record so prepared in the current settlement and called for the information firstly as to in which agricultural estates or sub-estates, the aforesaid 'lathas' and 'momis' had been used for effecting the revision. Secondly, whether new record that is new 'lathas' and 'momis' of all the revenue estates pertaining to the area in question tally with one another as also with the old 'musavi*, from which both of them were prepared. Similar position was sought to be clarified with respect to the proposed DPFs and UPFs. As per the information supplied, we have been apprised that after comparison of the new record i.e. new 'latha' and 'momis' with old 'musavies' thereof pertaining to the entire area in question, the outer boundaries given in the new record do not tally with their respective old 'musavies'. At this stage, it would be pertinent to detail that reason for the above said discrepancy has been stated to be firstly, that errors occurred during tracing of lathas' and 'momies' from 'musavies' and secondly, that in these 'mohals' 'lathas' and 'momies' were prepared in anticipation of final verification and attestation by Settlement Tehsildars and Assistant Settlement Officers. In order to justify their stand, it has been further stated that these officers during their inspections pointed out some mistakes and Patwaris concerned rectified the mistakes' in the 'musavies' and these mistakes could not be rectified in the 'momies' and 'lathas' for which the patwaris concerned have been asked to explain their carelessness. (See column 3 of Annexures C and E) The above said glaring mistakes have been admitted on the affidavit of Sh. S.K. Justa, Settlement Officer, Shimla and Kinnaur Districts dated February 28, 1992 for the first time, otherwise prior to this date, the case of the respondent, put forth before us, was consistent that new record-of-rights have correctly been prepared after following the procedure for special revision of the record of-rights. We have already observed that the settlement begins with an examination of the existing maps i.e. the map of each estate forming part of the record-of-rights in accordance with the instructions contained in Appendix XXI of the Manual. It is not the case of the respondents that such old record has not been utilised by the settlement patwaris for the work in the fields nor it is the case of the respondents that instead a new record i.e. 'Parat Tahsil 'Shajra' and 'latha' were especially made for this purpose. In case we take it that 'lathas' and 'momis'so traced from the old 'musavies' were especially prepared for this purpose at the commencement of the current settlement, these have been used throughout during the preparation of the new record-of-rights but without detecting the errors already existing therein. The obvious conclusion is that on account of the said faulty record, errors have crept in and this appears to be the basic reason for the emergence of the glaring discrepancies, referred to above, that on comparison of new record (New 'lathas' and 'momis') with old 'musavies' of all the revenue estates falling in the entires area in question, none of these tally with each other. From these admitted facts, the irresistible conclusion is that the current settlement has not begun with the examination of the existing field maps forming part of the existing record-of-rights. In this view of the matter also, we are constrained to hold that the new record-of-rights so prepared in the current settlement is not authentic one.
68. Now the next ancillary question which requires our determination is as to what is the scope of special revision of record-of-rights.
69. Section 32 of the Act lays down that save as otherwise provided by Chapter IV of the Act, there shall be a record-of-rights for each estate and it further states what documents shall be included in the record-of-rights. Section 34 of the Act provides for the annual records. With reference to the policy of the re-settlement procedure, it is a main object, not only to make a record which shall be correct for a given date, but keep it correct, by continually entering the changes that take place. The law, therefore, requires:
(1) the due preparation of the initial record; and (2) the maintenance of an additional record, called the "annual record" which is, in fact, only an 'edition' of the first, kept continually correct by alterations and additions.
70. In other words, we have a set of documents which give the starting point on an attested account of the facts as found at a certain date; and then another set (in precisely the same form), which are continually being corrected, by noting all changes occurring since the date of the initial record. The former is provided in Section 33 of the Act and latter in Section 34 of the same. Thus, according to Sections 32 and 34 of the Act, a standing record and an annual record must include --
(I) Statement showing, so far as may be practicable,
(i) the persons who are landowners, tenants, or assignees of land revenue in the estate, or who are entitled to receive any of the rents, profits, or produce, of the estate or to occupy land therein;
(ii) the nature and extent of the 'interest of those persons, and the conditions and liabilities attaching thereto; and
(iii) the rent, land revenue, rates, cesses, or other payment due from and to each of those persons and to the Government;
(2) Such other documents as the Financial Commissioner may, with the previous sanction of the State Government, prescribe. A standing record must also comprise ---
(3) a statement of customs respecting rights and liabilities in the estate.
(4) a map of the estate (Sections 32(2) and 34(2)). A "standing record" should contain the following documents:--
(1) A preliminary proceeding.
(2) a shajra kishtwar of field map.
(3) A shajra nasab or genealogical tree.
(4) A jamabandi or register of the holdings of owners and tenants showing the fields comprised in each, the revenue for which each owner is responsible, and the rent payable by each tenant. It should also show particulars about the owner and tenant as given below ;--
(i) In the case the owner, the father's name, tribe or caste, got or sub-tribe, if any, and residence.
(ii) In the case of tenant or the cultivator the father's name, tribe or caste, got or sub-tribe, if any, residence, and status, (e.g., maurusi or ghair maurusi).
(5) A list of revenue assignments and pensions.
(6) A statement of rights in wells.
(7) A statement of rights in irrigation, if any, from other sources.
(8) A wajib-ul-arz or statement of customs respecting rights or liabilities in the estate.
(9) The order of the Settlement Officer determining the assessment.
(10) The order of the Settlement Officer distributing the assessment over holdings (Settlement Manual, para 285).
71. The "annual record" consists usually of (a) the jamabandi (b) a list of revenue assignments and pensions and (c) such maps as are required to show the changes in the map of the estate that have occurred since the previous record was prepared. Jamabandi includes amended copy of'shajra nasab' also.
72. Now Sections 35 to 41 of the Act lay down procedure for making the records. Section 35 relates to the making of that part of the annual (quadrennial) record which relates to the land owner, assignees of revenue and occupancy tenants while Section 36 prescribes for the making of that part of the record which relates to other persons. Disputes arising between the making, revision or preparation of any record or in the course of any inquiry under Chapter IV of the Act as to any matter or which any entry is to be made in record or in register of mutations are to be decided in the manner laid under Section 37.
Section 38 prescribes restrictions laid on variation of entries in record. Penalty, for neglect to report acquisition of any Tight referred to in Section 35 is provided for in Sections 40 and 41. Any person whose rights, interests or liabilities are required to be entered in any record under Chapter IV of the Act is bound to furnish on the requisition of any revenue officer or village officer engaged in compiling the record, all information necessary for the correct compilation thereof. Under Section 34(1) of the Act, an edition of the record-of-rights amended in accordance with the provisions of Chapter IV of the Act, is prepared once in four years. The patwari keeps up a register of mutations in which he records all acquisitions of rights of the kind described in Sections 35 and 36, reported to him or which "he has reasons to believe to have taken place", except those relating to land revenue assignments and undisputed mutations of tenants-at-will. But mere entry in the register cannot cause any alteration in thejamabandi without an order of a Revenue Officer. The Revenue Officer after hearing the parties concerned, passes the necessary order and then it is incorporated in thejamabandi. Un-disputed entries relating to tenants-at-will are taken straight from the khasra girdawari. The 'shajras' are also amended at the same time. In this regard we also find discussion laying down the procedure under Chapter VIII of the H.P, Land Records Manual pertaining to the record-of-rights which is to be read along with Chapter XIV and Appendix VII and VIII of the Settlement Manual.
73. From the above as also what is provided in Paragraph 279 of the Punjab Settlement Manual, it is clear that existing entries in standing and annual records, except entries relating to change of yearly tenants, can only be varied in subsequent records by-
(a) making entries in accordance with facts proved or admitted to have occurred,
(b) making such entries as are agreed to by all the parties therein, or are supported by a decree or order binding on those parties,
(c) making new maps where necessary (Section 38).
74. It is well settled that especially revised record-of-rights supersedes the former record, but the entries in it do not effect any presumption in favour of Government which has already arisen from any previous record-of-rights (as per Section 33(3)). Similarly, the acquisition of rights by any person has to be considered in the light of the prevailing law by the revenue officers at the time of effecting alteration of entries in record-of-rights. For illustration purpose, we find that according to Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 (Act No. 8 of 1974), sale of land in Himachal Pradesh is only valid in case it conforms to the requirement of this provision, otherwise the sale is to be considered as void. All acquisitions of any such rights by any person are recorded by the Revenue Officer and mutation is effected which is considered to be legal and valid only after it is attested by him. The procedure for making this part of the (periodical) record which relates to land owners, assignees of revenue and occpancy tenants has been provided in Section 35 of the Act. A person acquiring any such right is under legal obligation to report the fact to the patwari who is legally bound to enter in his register of mutations, every report made to him under sub-section (1) or subsection (2) of Section 35 and he is also bound to 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. Sub-section (5) of this section enjoins a Revenue Officer to inquire into the correctness of all such entries in the register or mutations and into all such acquisitions as afore-mentioned, 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 he shall, in each case, make such order as he thinks fit with respect to the entry in the (periodical) record-of-rights acquired. Such entries are inserted indicating the acquisition of rights. Thus, at the time of effecting alterations, the record should be up-dated in view of the mutations which are legal and valid.
75. We have already observed that every documents can be prepared by the revenue officers during a settlement only in case it is prescribed by the Financial Commissioner and that too with the sanction of the State Government, as is envisaged under Section 32(2)(d) of the Act. In the light of the above said, we now proceed to consider the procedure followed in the preparation of the various documents forming part of the record-of-rights in the current settlement, which has now been assailed before us:
MOHAL-BANDI
76. In case of a revised settlement, a fresh 'Mohal-Bandi' altogether is not required in the normal course. It is always presumed that the boundaries of the villages as per the whole settlement have remained by and large intact. According to para 124 of the Settlement Manual, Settlement Officers suo motu have no power to divide an existing village into two separate estates but when for certain compellable reasons, a revenue estate is splitted up into more than one, all such cases are required to be sent to the Financial Commissioner for scrutiny and approval as per Instructions contained in para 124, referred to above. The Settlement Officer before splitting up revenue estates, is required to obtain the consent of the right-holders after giving publicity in the State concerned and after recording the statements of all the right-holders.
77. In the instant case, we find that the existing revenue estate have been splitted up into sub-estates (up-mohals). We have already observed that as per the directions contained in Annexure P-22, (a letter dated June, 1986) fresh 'mohal-bandi' was not required in the instant revised settlement. Further, we find that no such cases of splitting up of the revenue estates had been sent by the 4th respondent (Settlement Officer) for approval of the third respondent (Financial Commissioner). Even otherwise, from the information supplied by the 4th respondent on the affidavitof Sh. S.K. Justa, we find that despite splitting up the existing estates into sub-estates, many "of them have not been shown as such (sub-estates), in total disregard of supplementary instructions (tatima 1996 H. P./5 V G-28 hidayat) Nos. 2 and 9. The number of such sub-estates so splitted up but not termed as 'up-mohals' (sub-estates) in the record-of-rights, are: 8 sub-estates in Dodra Kwar, 56 sub-estates in Chirgaon and 45 sub-estates in Rohru tehsils respectively. In other words, respondent No. 4 has carved out sub-estates from the existing revenue estates unautho-risedly and his such act has resulted into increase of separate revenue estates. This act of the 4th respondent, viewed from whatsoever angle, has no legal sanction behind it and thus, the documents prepared in respect of mohal-bandi' are in direct conflict with the statutory provisions of the Act as also the rules framed thereunder. Even otherwise, record does not show that the right-holders of particular 'mohal' which has been split-up into more than one, were taken into confidence or they were intimated of this fact or their consent was taken after recording their statements. To this extent, the entire record with respect to 'mohal-bandi' deserves to be ignored.
NAKSHA-BARTAN
78. 'Naksha-Bartan' also records every kind of right of an estate-right-holder in the land etc. It cannot be prepared by a Settlement Officer until and unless the same is prescribed by the Financial Commissioner and that too with the sanction of the State Government.
79. As regards preparation of record in the form of naksha-bartan', suffice it to state that this record has been prepared for the first time without any authority. The contention of the learned Advocate General in this behalf is that by instructions any new documents can be prepared. We find that there are no such explicit instructions from the 3rd respondent nor there is any legal sanction for the preparation of such documents for and of behalf of the State Government (1st respondent).
80. Record further shows that user's rights of the right-holders of old revenue estates have not been recorded in this document in all sub-estates formed out of that old revenue estate during the current settlement operations. The number of such like estates are:
S.No. Name of Tehsils Total sub-estates No. of sub-estates in which user's rights of old revenue has not been recorded 1 2 3 4 I. Dodra Kwar 8 6
2.
Chirgaon 61 26
3. Rohru 54 43
81. Apparently, it has resulted in unauthorised and illegal curtailment of the rights or right-holders in the Government waste lands.
82. We find that approval of the Government with respect to the instruction No. 22 pertaining to preparation of Naksha Bartan' as also of the formation of 'Up-Mohals' arewanting. Assuming that such instructions have been issued with the approval of the Government, we have to consider as to what is the legal sanctity of showing 'Up-Mohals' as 'Mohals' and preparation of Naksha Bartan'. The next question would be, can these documents, so prepared in the current settlement, form itself as apart of record-of-rights ? In our considered opinion, the answer is in the negative. Record should show that the estate right-holders were intimated and their statements were recorded and such records were prepared with their consent. In other words, record should show that the estate right- holders have been taken into confidence at itspreparation."
83. Census of 1981 and onwards published by the Government of India from time to time show population village-wise (Mohals) excessively larger than the signatures on the statements of the right-holders so recorded in the records of this case. It is to be noted that presumption of truth attaches to 'Naksha Bartan' which is entirely a new document prepared in the current settlement operation of the area in question.
84. Section 32(2)(d) of the Act requires the preparation of any such document in case it is prescribed by the Financial Commissioner (3rd respondent) with the approval of the Government. It is neither the case of the respondent nor any such document indicating the approval of the first respondent has been produced, as such, all 'Naksha Bartans' of every revenue estate in respect of the three tehsils prepared by the respondents are required to be deleted for the two reasons: (I) there exists no previous approval of the Government for preparation of such a document, and (2) even if approval is deemed to be implied, then also it has wrongly been prepared because all estate right-holders were neither intimated nor consulted nor their rights have been recorded in majority of so called 'mohals'. Record shows that where-ever these 'naksha bartans' have been prepared, the statement of only a few right-holders have been recorded. At the same time, there is no evidence on record to show whether estate right-holders were intimated with respect to the preparation of these documents nor any objections were invited nor considered by any authority including the Settlement Officer. Lastly, we find, that all rights of a right-holder of earlier revenue estate, now divided into two or more sub-estates, have not been recorded therein along with rights enjoyed by earlier estate-right-holders.
WAZIB-UL-ARZ:
85. 'Wazib-ul-urz' is a part of the record-of-rights. All entries in it are, therefore, presumed to be correct but are capable of rebuttal. While preparing the wazib-ul-arz, the Revenue Officer, as per Instructions contained in Appendix VIII-E, is required to record the statement of customs respecting rights and liabilities which are ascertained to exist by the estate-right-holders. It should contain information with respect to common land, its cultivation and enjoyment of the proceeds thereof, on the various matters as are pertinent to the estate:
(a) Common land; its cultivation and management; and the enjoyment of the proceeds thereof.
(b) Rights of grazing on common land.
(c) Rights to the enjoyment of sayer produce.
(d) Usages relating to village expenses (malba).
(e) Customs relating to the irrigation of land.
(0 Customs relating to mills, tanks; stream; or natural drainages.
(g) Customs of alluvion and dilluvion.
(h) The rights of cultivators of all classes not expressly provided for by law (for instance, rights to trees or manure, and right to plant trees) and their customary liabilities other than rent.
(i) Customary dues payable to village servants, and the customary service to be rendered by them.
(j) The rights of Government to any nazul property, forests, unclaimed; unoccupied; deserted; or waste lands, quarries; ruins or objects of antiquarian interest, spontaneous products, and other accessory interest; in land included within the boundaries of the estate.
(k) The rights of Government in respect of fish and fisheries in streams, rivers, etc. (1) Any other important usage affecting the rights of land-owners, cultivators or other persons interested in the estate, not being a usage relating to succession and transfer of landed property.
The procedure for revision of the 'wazib-ul-arz' is laid down in Paragraph 296-A of the Punjab Settlement Manual, which is to the following effect:
"296-A. Revision of Wajib-ul-arz.
When the Tahsildar's final attestation has been finished the Tahsildar or the Extra Assistant Settlement Officer should proceed to revise the wajib-ul-arz in accordance with the above rules, those rules are subject to Section 37 of the Act, Which says that entries in the record of right shall not be varied in subsequent records otherwise than by making the changes there detailed. The revising officer should not attempt to re-arrange the old wajib-ul-arz or put it in better form, but should merely copy it with such few changes as are authorised by Section 37. It must be remembered that he is not drawing up a new wajib-ul-arz, but bringing an existing one up-to-date. In case of a dispute the object of the revising officer should be to ascertain what the actual existing custom is and how far it differs from that entered in the wajib-ul-arz under revision. If he can arrive at no definite and satisfactory finding on this question of fact he should repeat the former entry and leave the parties to a suit in the Courts. If on the other hand he is able to arrive at such a finding he should amend the existing record by entering the custom actually found to exist. Such a procedure is not contrary to Section 36(1) or 37 of the Land Revenue Act, while any entry so made would be of course to the operation of Section 45 of that Act. Tahsildars are authorised finally to attest undisputed entries only in a wazib-ul-arz. All entries which at the time of their attestation they find to be disputed should be referred by them for decision to the Collector or to an Assistant Collector of 1st Grade. When the wazib-ul-arz has been faired it can be filed in the District Record Office as part of the standing record, any necessary addition being left to be made to it as a supplement after the new assessment has been announced, and the village can then be told that revision of its records is complete, and that its settlement is over except for the announcement and distribution of the new assessment."
86. A reading of Annexure P-5 which is translation of jamabandi of Karassa shows that only statement of 9 persons out of about 1000 have been recorded. No wazib-ul-arz had been prepare in the previous settlement of 1911. No orders of the State Government have been annexed for the preparation of this new wazib-ul-arz nor it appears to have been prepared in accordance with the provisions of the abovesaid Paragraph, nor its authenticity has been checked as provided under paras 560, 561 and 569 of the Manual.
87. In respect of demarcated protected forests, we may add at this stage that proper use of old revenue records has not been made at the time of their measurement during the current settlement operations. DPFs have already been notified. In this regard, it is further pointed out that at the time of inspection of the records as per our directions, only 'momis' of those 'mohals' were produced by the respondents which were specifically pointed out by the petitioners. However, 'musavies'thereof were not produced despite the order of this Court. A perusal of these records further indicate that despite the use of the notified records pertaining to DPFs, the new records have not correctly been prepared in the current settlement inasmuch as in the new record, there are 'Burjies' and 'Batta Burjies' (pillars) but the current settlement record shows absence of such 'Burjies' and 'Batta Burjies'. Specific instances relating to discrepancies are as under :
(a) Distance between 'Burji'(Pillar) Nos. 3 and 4 in DPF Ambot as in old maps does not tally with the distance as shown in the current records:
(b) Burji Nos. 2 and 3 only are shown on the old 'Moni' of DPF Dogra. Obviously it was not old revenue record which was made the basis of measurement during the current settlement operations;
(c) In DPF, Sharog, 11 'Batta Burjis' between 'Burji1 Nos. 18 and 19 are shown in anti-clock wise direction whereas previously these were shown in clock-wise direction. Other 'Batta Burjis' have not been shown;
(d) In Barara DPF 'Batta Burjis1 have not been shown in the current records.
Apart from it, we may state that out of the records produced by the respondents, we closely checked up four maps pertaining to DPFs prepared in the current settlement record and all were found not to tally with the old settlement record.
88. AH these arc full of glaring discrepancies. It showed that -- forest history sheets of these DPFs obtained from Forest Department were only made use of and not the. previous settlement record. Also, despite sufficient time having been given to Settlement Naib Tehsildar, namely, Sh. Sohan Lal (who was one of the signatories to the newly prepared current settlement record) on his own request to explain and satisfy the above defalcation, he neither could produce any record nor explain as to how these discrepancies in the forest history sheets and the newly prepared record had occurred. It is not the case of the respondents that previous settlement record pertaining to DPF,s and the proposed UPFs was not-available or it was not in their possession. It appears that nobody cared to make use of the authentic old settlement record and in case it was so done, nobody checked up the correctness of the new record having been prepared on the basis of the old one. Even boundaries in the two records i.e. forest history sheets and the new record, do not tally with each other.
89. Petitioners agree that current settlement record of ail proposed DPFs have already been prepared, verified and duly attested by the Revenue Officers (Settlement) just like other records of DPFs already notified. The argument that no inquiry with respect to such record which had already been notified, had not been made and it amounts to fraud being played upon their vested rights, is not tenable, because after the preparation of the new record of rights in accordance with the instructions contained in the Forest Settlement Rules, the right-holders are yet to be notified of such proposals. At that relevant time, they can raise objections as to the legality and validity and preparation of records pertaining to proposed DPFs.
90. It may not be out of place to mention that from the test check up of the current record pertaining to Kanda agricultural estale/sub-estate, in particular, we find inexplicable variations in areas owned by both individual owners as well as the Government in the cass of agricultural estates/sub-estates. All these defalcations/glaring mistakes/ variations/discrepancies appear, apparently because the Inspecting Staff of the Settlement Department -- especially field Kanungos and Naib Tehsildars who are respectively required to check 100% and 25% work of every Patwari and conduct inspections and checkings from time to time from the start to the finalisation of the settlement operation as per instructions contained in Paragraphs 353 and 354 of the Manual did not perform their duties honestly and diligently. They do not seem to have cared for the following :
1. Issuance of proper notices to the right-holders and their proper service before finalisation (after hearing and deciding objections, if any) of proposals for forrnation of revenue estates/sub-estates (including DPFs);
2. Construction of Injunction pillars at proper places, thereby depriving people of the knowledge of exact boundaries of their revenue estates/sub-estates, DPFs and proposed DPFs;
3. Correct "mukabla sabika hal" thereby ensuring that discrepancies in measurement and preparation of records do not creep in and further ensuring that the Government land previously available for exercise of their rights by the right-holders does not get reduced in any unlawful manner.
4. Scrupulously following supplementary instruction Nos. 2 and 9 thereby letting the record speak itself that it pertains to a sub-estate and not to an estates;
5. Meticulously following supplementary instruction No. 22 thereby ensuring that rights of the right-holders do not get adversely affected in any manner;
6. Ensuring that all DPFs were measured on the basis of old revenue records and in case such record was not available in any particular case then ensuring that measurement was done with reference to the History-sheets of the forests as maintained by the Forest Department and Notifications as issued by the Government;
7. Whether all "lathas" and "momis" traced from the current "musavis" absolutely tally with the "musavis" and with one another.
8. It has also been observed that supplementary instruction No. 3(b) and (c) gives arbitrary, unfettered and unguided powers to the Settlement staff. It cannot be upheld as legally valid provision.
91. In the light of the above discussion, it is demonstrably clear that the petitioners have been denied or deprived of a legal right. We have already observed that updating of neat, clean and correct record-of-rights is the foundation of re-settlement. The said record is of a permanent nature which is linked with the basic rights of the estate-right-holders-public at large. We have found that the basic record used in the fields by the Revenue Staff (Settlement) was defective from its very inception, as per admission of respondent No. 4. As such, substantive rights of the public at large, by wrong preparation of records, have been affected. The over-all conclusion is that the public, at large, has been subjected to a legal wrong by the omissions and commissions of the Revenue Officers (Settlement).
92. Before parting with this case, we expect that the respondents would take immediate measures to avoid the recurrence of the basic mistakes in the preparation of record-of-rights and assessment of land revenue in the current re-settlement, as per notifications, by taking immediate measures to provide experienced settlement trained staff for conducting the current settlement in the area in question under the 4th respondent, because the Settlement Officer being entrusted with the duty of making a general re-assessment and preparation of the revenue record, while engaged on this task, is also responsible for the continuance and improvement of the regular work of the village record agency. He is also required to lay out his work in such a way that it fits in with the ordinary duties of the Patwari and Kanungo agencies.
93. The circumstances, discussed above, reflect carelessness, may be inadvertent on the part of the Revenue Staff (Settlement) or that of the respondents, which has caused not only substantial loss to the State exchequer but it has also affected the fundamental rights of the public at large. Our endeavour is to direct the State Government as also the controlling authorities to adhere to corrective modes with a view to avoid recurrence of such gross mistakes.
94. In view of the above, the writ petition is accepted and following directions are issued:
(1) The respondents are directed to complete the on going land revenue settlement operations in the area in question as "second revised settlment" in accordance with the instructions contained in Paragraph 222 and Appendix XXI of the Punjab Settlement Manual.
(2) The compendium of instructions (P-21) be amended in consonance with and pertaining to the procedure applicable to special revision of record-of-rights. Resultantly, instructions continuing to be contained in P-21, contrary to letter June, 1986 (P-22) are ordered to be deleted.
(3) The new record-of-rights pertaining to the areas in question. Prepared in the current settlement in relation to 'Mohal-Bandi', 'Naksha Bartan', 'Wazib-ul-arz', classification of land, proposed DPFs and UPFs etc., be ignored and re-settlement be started subsequent to the stage of Forecast Report.
95. The writ petition is disposed of in terms of the above, with no order as to costs.
96. Interim stay earlier granted, is ordered to be vacated.