Himachal Pradesh High Court
Banti Devi & Others vs Pohlo Ram & Others on 15 October, 2015
Bench: Mansoor Ahmad Mir, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 192 of 2014 .
Reserved on: 8.10.2015 Decided on : 15.10.2015 Banti Devi & others .....Appellants.
Versus Pohlo Ram & others ....Respondents.
of Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
rt The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1yes.
For the Appellants Mr. N.S Chandel, Advocate.
For the Respondents: Mr. G.C Gupta, Sr. Advocate with Ms. Meera Devi, Advocate for respondents No. 1 and 4 to 6.
Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan and Mr. Romesh Verma, Additional Advocate Generals, with Mr. J.K Verma, Deputy Advocate General, for the respondents No. 2 and 3.
_______ Sureshwar Thakur, Judge This Letters Patent Appeal has been instituted before this Court at the instance of the respondents No. 3 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 19:13:07 :::HCHP
...2...
to 8 in CWP No. 11145 of 2011 titled as Pholo Ram versus .
Financial Commissioner (Appeals) and others, who feeling aggrieved by the judgment made by the learned Single Judge of this Court in CWP aforesaid, hereinafter referred of to as "the impugned judgment for short, on the grounds taken in the memo of appeal.
2. rt Shorn of verbosity the facts germane for rendering an adjudication on the present appeal are of the respondent No.1 herein and the predecessor-in-interest of the appellants herein, namely, Jindu Ram besides the predecessor-in-interest of respondents No. 4 to 6 herein, namely, Sant Ram, jointly owning as co-sharers the undivided and un-partitioned holdings comprised in Khasra Nos. 555, 392, 393, 395, 396, 398 and 402 Kita 7, Khata Khautaui No. 164/249, situated in Revenue village Berthin, Pargana Sunhani, Tehsil Jhanduta, District Bilaspur, H.P. Respondent No.1 herein Pohlo Ram for begetting severance by metes and bounds of the un- ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...3...
partitioned/undivided holding constituted in Khasra Nos.
.
aforesaid by its partition, instituted an apposite application before the Assistant Collector, Ist Grade, Ghumarwain, District Bilaspur. The Assistant Collector, of Ist Grade, Ghumarwin, on receiving the application instituted before him by respondent No.1 herein seeking rt partition by metes and bounds of the joint holdings aforesaid, prepared under his order dated 4.6.1992 (Annexure P-1) an apposite mode of partition qua it.
However, the mode of partition prepared by the Assistant Collector, Ist Grade, Ghumarwin vide order dated 4.6.1992, supra, omitted to take within its ambit, the undivided holdings of the parties at lis abutting the road side. The mode of partition, as prepared by the Assistant Collector, Ist Grade Ghumarwin was transmitted to the field staff for execution. On the mode of partition as devised by the Assistant Collector, Ist Grade Ghumarwin being transmitted for execution to the field staff, the ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...4...
respondents herein had appeared before the field Kanungo .
on 6.1.1993 proclaiming before him that for begetting or ensuring parity of distribution amongst the co-owners even of the undivided holding abutting the road side of while it carrying a high market value necessitated its being also incorporated in the mode of partition. Given the rt objections hence preferred by the respondents herein to the mode of partition prepared by the Assistant Collector, Ist Grade, Ghumarwin under his aforesaid order, the field Kanungo, to whom, the relevant papers had been transmitted by the former for execution, prepared a report and dispatched it to the Assistant Collector, Ist Grade, Ghumarwin. The latter summoned the parties herein on 18.3.1993 and proceeded to order that the undivided land abutting the road side be also distributed amongst them in consonance with their share holdings in the undivided estate.
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3. Against the aforesaid order dated 18.3.1993, an .
appeal was preferred therefrom by the predecessor-in-
interest of the appellants herein before the Collector, Sub Division Ghumarwin. The Collector, Sub Division of Ghumarwin dismissed the appeal on 13.12.1994.
4. The predecessor-in-interest of the appellants rt herein instituted a Revision Petition before the Divisional Commissioner, Mandi. The Divisional Commissioner set aside the order dated 18.3.1993 made by the Assistant Collector and made commensurate recommendations to the Financial Commissioner (Appeals). The Financial Commissioner (Appeals) while being seized of the Revision Petition, instituted before him, at the instance of the predecessor-in-interest of the appellants herein, concluded therein that when the Assistant Collector, Ist Grade, Ghumarwin devised a mode of partition qua the undivided estate of the parties at lis vide order dated 4.6.1992, yet omitted to incorporate therein for distribution ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...6...
amongst co-owners their joint estate abutting the road side .
rather his having therein only proposed, that their respective exclusive possession held by the co-owners in the undivided holdings be revered while partitioning it by of metes and bounds, constituted an adoption by him of an unjustifiable mechanism to beget severance of the joint rt estate. Besides, it was also concluded by the Financial Commissioner (Appeals) that with the Assistant Collector Ist grade, Ghumarwin proceeding to under order dated 18.3.1993 include in the mode of partition previously devised by him qua the joint estate vide order dated 4.6.1992 even the undivided holdings inter-se the co-
owners abutting the road side for its distribution amongst the co-owners in consonance with their share in the dismembered holdings, manifestly constituted a review of his earlier order dated 4.6.1992 whereas with the exercise of a power of Review by the Assistant Collector Ist Grade, Ghumarwin standing statutory interdiction or its exercise ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...7...
being statutorily barred unless preceding its exercise by .
him he had obtained the sanction of the Revenue Officer higher to him in the echelons of the revenue hierarchy.
Naturally, when palpably no sanction within the domain of of clause (a) of Sub Section (1) of Section 16 of the H.P land Revenue Act, for short "the Act" was obtained by the rt Assistant Collector Ist Grade before proceeding to include in his order dated 18.3.1993, the undivided holdings of the co-shares abutting the road side which, had remained un- included in his earlier order dated 4.6.1992 and which subsequent inclusion by him in the mode of partition was construed vide Annexure P-3 to be tantamounting to an untenable exercise by him of jurisdiction of Review of his earlier order dated 4.6.1992. Concomitantly, for reinforced reiteration with the exercise of jurisdiction of Review by him standing not preceded by his obtaining sanction from the officer higher to him in the echelons of the revenue hierarchy, its exercise by him was concluded therein to be ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...8...
jurisdictionally impermissible besides legally untenable.
.
Consequently, vide Annexure P-3, the Financial Commissioner (Appeals) Himachal Pradesh accepted the recommendations made by the Divisional Commissioner, of Mandi, in his order dated 19.11.1999, wherein the latter had proposed for the setting aside of order of the Collector rt Sub Division, Ghumarwin who in his order dated 13.12.1994 had upheld the findings recorded vide order dated 18.3.1993 of the Assistant Collector, Ist Grade, Ghumarwin. Besides a direction was rendered in Annexure P-3 to the Assistant Collector, Ist Grade, Ghumarwin, after affording an opportunity to all affected on the issue of allotment of undivided holding of the parties at lis abutting the road side, proceed to carry out an amendment in the mode of partition prepared by the former vide order dated 4.6.1992.
5. The Assistant Collector, Ist Grade, Ghumarwin, however refused to carry out the mandate of the Financial ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...9...
Commissioner (Appeals) constituted in Annexure P-3 by .
affording therein the reason that he has no power to review his orders. Respondent No.1 herein feeling aggrieved by the order made by the Assistant Collector, Ist of Grade, Ghumarwin comprised in Annexure P-4 was constrained to institute an appeal before the Collector, Sub Division, rt Ghumarwin, who vide order dated 5.5.2007,Annexure P-5, set aside the impugned order Annexure P-4, made by the Assistant Collector, Ist Grade, Ghumarwin. The predecessor-in-interest of the appellants herein assailed the order Annexure P-5, made by the Collector Sub Division, Ghumarwin by preferring an appeal before the Divisional Commissioner, Mandi. The Divisional Commissioner, vide order dated 9.10.2009, Annexure P-6, reversed the order of the Collector Sub Division, Ghumarwin comprised in Annexure P-5.
Respondent No. 1 herein besides the predecessor-in-
interest of the proforma respondents No. 4 to 6 instituted a ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...10...
Revision Petition before the Financial Commissioner .
(Appeals) assailing therein the order of the Divisional Commissioner, Mandi comprised in Annexure P-6. The Financial Commissioner (Appeals) vide order dated of 29.10.2011, Annexure P-8, upheld the order of the Divisional Commissioner, Mandi comprised in Annexure P-6.
rt Respondent No.1 herein standing aggrieved by the aforesaid order constituted in Annexure P-8, assailed the same by way of preferring Civil Writ Petition bearing No. 11145 of 2011 before this Court. The learned Single Judge of this Court allowed the writ petition whereby the impugned orders were quashed and set aside.
6. The learned counsel for the appellants herein has with vehemence and fervor canvassed before this Court that the order rendered by the Assistant Collector, Ist Grade constituted in Annexure P-4 stands on a secure legal pedestal as the reasons drawn therein by the Assistant Collector, Ist Grade of his being constrained to ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...11...
carry out the mandate of the Financial Commissioner .
(Appeals) constituted in Annexure P-3 are within and not beyond the domain of Section 16 of the Act, whose provisions stand extracted hereinafter. He has with all of persuasion at his command on anvil thereof concerted to sway this Court that the Assistant Collector, Ist Grade rt having not, within the ambit of Clause (a) of sub Section (1) of Section 16 of the Act, enjoining upon him to before proceeding to review his order obtain sanction of the Officer higher to him in the echelons of the revenue hierarchy, obtained the apposite statutory sanction from the officer higher to him in the echelons of the revenue hierarchy want thereof imposed a legal fetter upon him to exercise the power of review.
"16. Review by Revenue Officers-(1) {Where there is a mistake or error apparent on the face of record or where some new and important fact or evidence is discovered, a Revenue Officer} may, either his own motion or on the application of any party interested, review, and on so reviewing ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...12...
modify, reverse or confirm, any order passed by .
himself or by any of his processors in office:
Provided as follows:-
(a) When a Commissioner or Collector thinks it necessary to review any order which he has not himself passed, when a Revenue of Officer of class below that of Collector proposes to review any order whether passed by himself or by any of his predecessors in office, he shall first obtain rt the sanction of the Revenue Officer to whose control he is immediately subject;
(b) an application for review of an order shall not be entertained unless it is made within ninety days from the passing of the order, or unless the applicant satisfies the Revenue Officer that he had sufficient cause for not making the application within that period;
(c) an order shall not be modified or reversed unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of the order;
(d) an order against which an appeal has been preferred shall not be reviewed.
(2) For the purpose of this section, the Collector shall be deemed to be the successor in office of any Revenue Officer of a lower class who has left the district or has ceased to exercise powers ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...13...
as a Revenue officer, and to whom there is no .
successor in office.
(3) An appeal shall not lie from an order refusing to review or confirming on review a previous order.
(4) Save in the cases of clerical or
of
arithmetical mistakes arising from any accidental slip or omission , no application for review shall lie under this section against an order passed by the rt Financial Commissioner under Section 17 of this Act."
7. For testing the tenacity of the aforesaid submission addressed by the learned counsel for the appellants herein, it is apt to advert to the factum that the Financial Commissioner (Appeals) had for grave and weighty reasons assigned in his order Annexure P-3, concluded that the Assistant Collector, Ist Grade while his not having included in the mode of partition constituted in his order dated 4.6.1992, the undivided holdings of the co-
sharers abutting the road side, he could not proceed to in his subsequent order dated 18.3.1993, include in the mode ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...14...
of partition the aforesaid undivided holdings abutting the .
road side, for its distribution amongst the co-owners in consonance with their shares in the undivided holdings, as the inclusion thereof in the order dated 18.3.1993 of tantamounted to a review at his instance, of his earlier order dated 4.6.1992 which was un-exercisable at his rt instance, besides was jurisdictionally void, unless within the ambit and scope of clause (a) of sub Section (1) of Section 16 of the Act he had obtained sanction from the officer higher to him in the echelons of the Revenue hierarchy. However, with there being no palpable material on record demonstrating that the Assistant Collector, Ist Grade, Ghumarwin while proceeding to by his order dated 18.3.1993 review his earlier order dated 4.6.1992, had obtained any sanction of the officer higher to him in the echelons of the revenue hierarchy lack thereof hence rendered the subsequent order dated 18.3.1993 to be afflicted with the malady of jurisdictional incompetence.
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Consequently, vide Annexure P-3, the Financial .
Commissioner (Appeals) remanded the matter to the Assistant Collector, Ist Grade, Ghumarwin, with a direction therein to the latter to after affording an of opportunity to all the affected persons of their being heard, amend the mode of partition qua the undivided rt holdings constituted vide order dated 4.6.1992.
8. The Assistant Collector, Ist Grade, Ghumarwin omitted to carry out the mandate of the Financial Commissioner (Appeals) constituted in Annexure P-4 on the mere pretext of his being asked to exercise the power to review his earlier order dated 4.6.1992 which was legally un-exercisable at his instance. The reason assigned by the Assistant Collector, Ist Grade, Ghumarwin in Annexure P-4 is shorn of legal tenacity besides suffers emasculation on the score that with the Financial Commissioner (Appeals) having under Annexure P-3 after his having set aside the findings returned by the Assistant ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...16...
Collector, Ist Grade dated 18.3.1993 on the score of its .
tantamounting to an exercise of jurisdiction of review by him of his earlier order dated 6.4.1992, which exercise of jurisdiction of review by him for the reasons aforesaid, fell of within the domain of the legal embargo constituted in clause (a) of sub Section 1 of Section 16 of the Act, rt rendering its exercise to be grossly impermissible, had also proceeded to therein permit the Assistant Collector, Ist Grade, Ghumarwin to modify the mode of partition prepared by the him qua the undivided holdings of the co-
sharers as stood constituted vide order dated 4.6.1992.
The order made by the Financial Commissioner (Appeals) dated 5.9.2005 whereby he permitted the Assistant Collector, Ist Grade, Ghumarwin to after affording hearing to all the affected parties amend the mode of partition qua the undivided holdings of the co-sharers prepared by him vide order dated 4.6.1992 tantamounted to a sanction to him by an Officer higher to him in the echelons of the ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...17...
revenue hierarchy, to proceed to review the order dated .
4.6.1992.
9. In other words, the peremptory direction of the Financial Commissioner meted to the Assistant Collector of Ist Grade, Ghumarwin for amending/modifying the order dated 4.6.1992 whereunder he while preparing the mode rt of partition qua the undivided holdings of the co-sharers had omitted to incorporate therein the undivided holdings of the co-owners abutting the road side which, yet were distributable amongst them to beget parity of allotment to each of them of the land bearing a higher market value, is to be construable to be a sanction to the latter to exercise the power of review within the ambit of clause (a) of Sub Section (1) of Section 16 of the Act. Therefore, in view of the order made by the Financial commissioner (Appeals) vide Annexure P-3, the Assistant Collector committed a legal fallibility in his not carrying out the mandate of Financial Commissioner (Appeals) on the frail legal ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...18...
pretext of his not enjoying the power to review his order .
dated 14.6.1992. Further more, even the order made by the Collector, Sub Division, Ghumarwin, comprised in Annexure P-5 arising out of the order of the Assistant of Collector, Ist Grade constituted in Annexure P-4 whereby the latter for the reasons aforesaid portrayed a constraint rt in not carrying ahead the mandate of the Financial Commissioner (Appeals) comprised in Annexure P-3, on its incisive reading unveils the factum of its while reversing the order comprised in Annexure P-4 its also according with his being an officer higher to the Assistant Collector, Ist Grade, Ghumarwin in the echelons of the revenue hierarchy, sanction within the domain of clause
(a) of sub Section 1 of Section 16 of the Act to the latter to review his earlier order. Even the aforesaid order of the Collector, Sub Division Ghumarwin, constituted in Annexure P-5 remained unimplemented by the Assistant Collector, Ist Grade, Ghumarwin. At this stage it is to be ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...19...
determined whether the subsequent order made by the .
Divisional Commissioner, Mandi and of the Financial Commissioner (Appeals) H.P constituted respectively in Annexures P-6 and P-8 whereby both set aside the order of made by the Collector Sub Division, Ghumarwin constituted in Annexure P-5 are embedded upon a firm rt legal footing. The short reason as occurs in the orders aforesaid of the Divisional Commissioner, Mandi and the Financial Commissioner (Appeals) HP existing respectively in Annexures P-6 and P-8 for reversing the order made by the Collector, Sub Division, Ghumarwin in Annexure P-5, is of the Collector, Sub Division, Ghumarwin, while permitting the Assistant Collector, Ist Grade to review his order dated 4.6.1992 having proceeded to do so, on an appeal preferred before him under Section 14 of the Act whereas with sub Section 3 of Section 16 of the Act barring/interdicting preferment of an appeal at the instance of the aggrieved before the Collector of the Sub ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...20...
Division, Ghumarwin when arising out of an "order .
refusing to review" as encapsulated in Sub Section 3 of Section 16 of the Act, as was the legal mantel purportedly donned by the findings recorded by the Assistant of Collector, Ist Grade comprised in Annexure P-4, hence, the availment by the aggrieved of the provisions of Section 14 rt of the Act prescribing therein the institution of an appeal by a person aggrieved by an appealable order whereas with the legal garb donned by the order of the Assistant Collector, Ist Grade Ghumarwin comprised in Annexure P-4 was of its falling within the ambit of the parlance "order refusing to review", necessarily then an appeal therefrom was statutorily barred. Concomitantly the preferment of an appeal therefrom was rendered to be legally mis-constituted besides the findings thereupon were as such devoid of any jurisdictional force. However the reasons as attributed both in Annexures P-6 and P-8 by the Divisional Commissioner, Mandi and the Financial ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...21...
Commissioner, (Appeals), respectively are unworthy of .
both legal succor necessarily then they stand to be discountenanced. The reason which prevailed upon the authorities aforesaid to construe the orders in Annexure P-
of 5 to be legally oustable stand spurred from the factum of both having misread, the text and tenor besides the rt phraseology of the findings recorded by the Assistant Collector Ist Grade in Annexure P-4, in coagulation with the prescription in clause (a) of sub Section 1 of Section 16 of the Act, obviously both then fallaciously construed that the Assistant Collector, Ist Grade, Ghumarwin in his order Annexure P-4 while his omitting to carry out the mandate of the Financial Commissioner (Appeals) had therein tenably refused to review his order dated 4.6.1992, as such the order made by the Assistant Collector, Ist Grade tantamounted to refusal on his part to review his earlier order. Hence the bar embedded in subsection 3 of Section 16 of the Act against no appeal being preferable against an ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...22...
order refusing to review stood attracted rendering the .
appeal as preferred therefrom before the Collector, Sub Division, Ghumarwin to be neither maintainable nor any exercise of powers thereupon was legally sustainable.
of However, the aforesaid construction as placed thereupon by both the authorities aforesaid, is ir-revereble as the rt tone, tenor besides the phraseology of Annexure P-4 does not portray that the Assistant Collector, Ist Grade has refused to review his order dated 4.6.1992, rather its incisive reading unfolds the factum that he had refused to exercise the jurisdiction of review though it stood bestowed upon him vide Annexure P-3.
10. The sublime and subtle distinctivity embedded in the phraseology of sub section 3 of Section 16 of the Act wherein a refusal by the officer concerned to review an order manifestly interdicts the institution of an appeal therefrom by an aggrieved under Section 14 of the Act vis-
à-vis the refusal on his part to exercise the tenable ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...23...
bestowment upon him of the jurisdiction of review, has to .
be unfolded besides disinterred. The refusal on the part of the Assistant Collector, Ist Grade concerned to review his earlier order would emerge only in the event of his, within of the ambit of the legally permissible limits permitting him to exercise the jurisdiction to review his previous orders rt having on a keen discernment of the material on record unearthed therefrom that the legal parameters within which power of review is exercisable by him were unavailable, constraining him to refuse to review his previous orders. Nonetheless in the instant case on a plain reading of Annexure P-4 it does not manifestly portray that the earlier order dated 4.6.1992 is not reviewable by the Assistant Collector, Ist Grade, Ghumarwin for want of the respondents herein begetting satiation of the legal parameters on whose sprouting alone he could proceed to review his earlier orders. Moreover, there is no unfoldment therein that his previous order while not ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...24...
suffering from any error apparent on the face of the record .
at the stage when he proceeded to render Annexure P-4 or the respondent herein having placed before him the apposite material warranting on its anvil the review by of him of his earlier order, which when despite exercise of due diligence at his instance was yet then discoverable by him rt hence also available for adduction before the Assistant Collector, Ist Grade at a time preceding his making the order comprised in Annexure P-4, necessarily then his earlier order not falling within the legal frontiers entailing its review at his instance, his being constrained to refuse to review it. For non-occurrence of the aforesaid communication in the order of the Assistant Collector, Ist Grade, Ghumarwin, in Annexure P-4 necessarily constrains this Court to construe that Annexure P-4 tantamounted to not a refusal on the part of the Assistant Collector, Ist Grade to review his earlier order dated 4.6.1992, rather a refusal on his part to exercise jurisdiction ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...25...
of review conferred upon him under Annexure P-3 by an .
Officer higher to him in the echelons of the revenue hierarchy besides his abdicating to exercise the tenable bestowment of jurisdiction upon him within the domain of of clause (a) of sub Section 1 of Section 16 of the Act by the officer higher to him in the echelons of the revenue rt hierarchy, of review. Moreover, especially when the orders comprised in Annexure P-3 stood un-assailed hence the preemptory directions comprised therein permitting the Assistant Collector, Ist Grade to review his earlier order dated 6.4.1992, as a corollary acquired an aura of conclusivity and finality besides constituted an uninfractable fiat to the Assistant Collector, Ist Grade to act in consonance thereto. However, in the latter taking to infract the mandate of an officer higher to him in the echelons of the revenue hierarchy comprised in Annexure P-3 whereas its falling within the legal domain of clause (a) of Sub Section 1 of Section 16 of the Act, gave no latitude ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...26...
to the Assistant Collector, Ist Grade, Ghumarwin to .
abdicate the jurisdiction of review as conferred thereunder upon him, necessarily then also the orders made by both the Divisional Commissioner and the Financial of commissioner (Appeals) comprised in Annexures P-6 and P-8 respectively can be construed to be not standing on a rt firm legal footing. Both clause (a) of Sub Section 1 of Section 16 of the Act and Sub Section 3 of the Section 16 of the H.P Land Revenue Act as stands extracted hereinabove are to be interpreted harmoniously and rhythmically so as to render both workable. Apart therefrom the interpretation which is to be afforded to both the provisions aforesaid is the one which does not render both to be redundant. While adopting the aforesaid manner of harmoniously construing the provisions aforesaid of the Act with the factual matrix of the instant case when permission to the Assistant Collector, Ist Grade, Ghumarwin was accorded by an officer higher to him in ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...27...
the echelons of the Revenue Hierarchy under order .
Annexure P-3 of the Financial commissioner (Appeals), concomitantly then with the Assistant Collector, Ist Grade, Ghumarwin abdicating jurisdiction to review his earlier of order though stood bestowed upon him within the domain of clause (a) of Sub Section (1) of the Act, cannot be rt construable to be bearing any affinity in parlance to the sublime phraseology tenor or text carried by the phrase "refusal to review" occurring in Sub Section (3) of Section 16 of the Act. The refusal on the part of the Assistant Collector, Ist Grade, Ghumarwin to review his earlier order when has been concluded to be emanating only on the officer concerned unearthing from the material adduced before him, the non-existence of the apposite material within whose permissible parameters power of review is exercisable, hence his being constrained to refuse to review his earlier order. Yet with the communication manifested in Annexure P-4 not on its incisive reading up-
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surging the preeminent fact that the Revenue Officer .
concerned was constrained to refuse to review his earlier order for non-existence of the apposite preeminent factors or non-existence of the permissible legal parameters , as a of corollary, an apt construction to be placed thereon is of it tantamounting not to a refusal on the part of Revenue rt Officer concerned to review his earlier order and change the revenue entries rather is to be construable to be tantamounting to abdication on his part of jurisdiction to review though stood for the reasons aforesaid tenably bestowed upon him. Hence, for the reasons aforesaid refusal on the part of the Revenue Officer concerned to exercise the tenably bestowed jurisdiction upon him to review his earlier order is contradistinctive to refusal on his part to review his earlier order. Unless the subtle marked distinctivity inter-se the refusal or abdication on the part of the Revenue Officer concerned to exercise a tenably bestowed jurisdiction of review upon him vis-à-vis ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...29...
the refusal on his part to review his earlier order which .
latter refusal would sprout only when the aforesaid parameters are explicitly pronounced in the order of a Revenue Officer concerned for the non-existence whereof of his being constrained to review his earlier order, is not comprehended, then both clause (a) of Sub Section (1) of rt Section 16 of the Act and Sub Section (3) of Section 16 of the Act would be rendered unworkable besides militative of each other as also redundant. If any, interpretation than the one as placed thereupon by this Court to the afore-
referred provisions of the Act stands afforded, then the outcome thereof would be of even a conclusive fiat of an officer higher to the Revenue Officer concerned in the echelons of the revenue hierarchy would be shown levity of regard besides would stand infracted though enjoined to be carried into effect. Apart therefrom when such bestowment of jurisdiction of review stands abdicated or stands un-exercised as in the instant case, it would then ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...30...
beget an attraction to it of an interpretation of its not .
falling within the domain of the parlance "Refusal to Review" couched in Sub Section (3) of Section 16 of the Act any appeal wherefrom alone stands statutorily barred or of interdicted. Necessarily then, the appeal preferred by the aggrieved under Section 14 of the Act against the order rt made by the Revenue Officer concerned refusing to exercise the tenably bestowed jurisdiction upon him of review would be maintainable thereunder.
11. In sequel, when want of exercise jurisdiction of review or abdication of jurisdiction of review on the part of the Assistant Collector, Ist Grade, Ghumarwin as emanable on a reading of his order comprised in Annexure P-4 does not fall within the domain of the phraseology "refusal to review" as enshrined in Sub Section 3 of Section 16 of the Act, any conclusion that hence its provisions are available to be drawn succor by the appellants herein for sustaining a propagation that the order made by the ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...31...
Assistant Collector, Ist Grade was un-appealable before .
the Collector, Sub Division, Ghumarwin, remains un- fostered. In face thereof obviously, the orders made by both the Divisional Commissioner, Mandi and the of Financial Commissioner (Appeals) existing in Annexures P-6 and P-8 were interfereable as tenably done by the rt learned Single Judge of this Court. Also, the order made by the Collector, Sub Division, Ghumarwin, as exists in Annexure P-5 was vindicable as has been aptly done by the learned Single Judge of this Court.
12. The Learned counsel for the appellants herein has contended with force that the power to review is not delegable by a superior officer for its exercise by his subordinate. Though the learned counsel for the appellants concerted to persuade this Court that the order made by the Collector Sub Division, Ghumarwin comprised in Annexure P-5 whereby he permitted the Assistant Collector, Ist Grade, Ghumarwin to review the order dated 4.6.1992 ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...32...
manifests a delegation of the power of review by the .
former to the latter which was only exercisable at the instance of the Revenue Officer concerned rendering the aforesaid delegation to be impermissible, hence rendering of the order of the Collector, Sub Division, Ghumarwin comprised in Annexure P-5 to be interfereable. However, rt the aforesaid argument staggers and falters in the face of the Collector, Sub Division, Ghumarwin in his pronouncement constituted in Annexure P-5 having within the legal domain besides with the purview of the mandate of clause (a) of Section 16 of the Act accorded sanction besides permission, his being the officer higher in the echelons of the revenue hierarchy to the Assistant Collector, Ist Grade, Ghumarwin, to the latter to exercise the power of review which however, the Assistant Collector, Ist grade abdicated to exercise which abdication of or want of exercise of jurisdiction has been construed by this Court to be not falling within the phraseology "refusal ::: Downloaded on - 15/04/2017 19:13:07 :::HCHP ...33...
to review" as embedded in sub Section 3 of Section 16 of .
the Act, so as to accept the contention of the learned counsel for the appellants herein that the said order was not appealable.
of
13. Consequently, the impugned judgment is upheld and the appeal is dismissed alongwith pending rt applications, if any.
( Mansoor Ahmad Mir), Chief Justice.
October 15, 2015 ( Sureshwar Thakur ),
(priti) Judge.
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