Himachal Pradesh High Court
Pritam Chand And Others vs State Of H.P. And Others on 12 June, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1322/2007
.
Date of decision: June 12, 2017
Pritam Chand and others .....Petitioners
Versus
State of H.P. and others ....Respondents
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the petitioners :Mr. Rahual Mahajan, Advocate
For respondents No.1&2 :Mr. V.S. Chauhan, Addl.A.G. and Mr.
Vikram Thakur, Dy.A.G.
For respondents No.3 to 48 :Ms. Vandana Kuthiala, Advocate
Ajay Mohan Goel, J. (Oral)
On 31.05.2017, this case was heard at length and detailed order was passed, which reads as under:
"By way of this petition, the petitioners have assailed the order which has been passed by Additional Director, Consolidation of Holdings, H.P. exercising the powers under Section 54 and 30 (4) of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (hereinafter referred to as 'Consolidation Act').
2. Brief facts necessary for adjudication of the present case as can be culled out from the order under challenge are that the present petitioner had filed a revision petition under Section 54 of the Consolidation Act on the following grounds.
1Whether the reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 14/06/2017 23:59:33 :::HCHP 2"1. That the father of the applicants has been in occupation of area of land measuring 159 kanals 2 .
marlas Khewat No. 13 min, Khatauni No. 370 min, Khasra No. 5466/2706 entered in the Jamabandi 1968-69 situated in village Mairi Majra Gowalsar, P.S., Tehsil Amb, District Una, as non-occupancy tenant solely before his death which took place about 16/17 years back.
2. That after the death of late Shri Punoon, the petitioners being his male lineal descendants i.e. sons succeeded the tenancy and have been in possession since then after his death and as such became owners by conferment of proprietary rights after the endorsement of the H.P. Tenancy and Land Reforms Act and the rules framed thereunder.
No body else has ever been in possession as tenant nor has any right and interest in the suit land.
3. That during consolidation operations in the village the respondents with the connivance of the consolidation field staff including the A.C.O. and C.O. wrongly got themselves incorporated in the revenue record as tenants at will alongwith the petitioners, wrongly, illegally, without any right and interest.
4. That the order passed by the Consolidation Officer, may be cancelled."
3. By way of the impugned order, it was held by the learned Authority that records revealed that petitioners and respondents were made owners of land vide mutation No. 1924, decided on 30.03.1984 and in case, any person was aggrieved by the attestation of the said mutation, then he ought to have had ::: Downloaded on - 14/06/2017 23:59:33 :::HCHP 3 approached the appropriate authority i.e. Collector and filed objections to the said mutation, but records revealed that no .
objections against the said mutation at the relevant time were raised. On these bases, learned Authority went on to dismiss the revision petition by holding that there was no merit in the same.
4. Feeling aggrieved, the petitioners have filed the present writ petition.
5. I have heard learned counsel for the parties and also gone through the records which have been produced on record.
6. Primarily, learned Authority below dismissed the revision petition of the present petitioners on the ground that as per records, petitioners were also present at the time when mutation was attested and no objection was raised by them against the mutation.
7. The order to this effect passed by the learned Authority below has been vehemently contested by learned counsel for the petitioners on the ground that findings returned by the learned Authority are not borne out from the records of the case. According to Mr. Mahajan, records nowhere suggest that the petitioners were present either at the time when the mutation was attested or they had agreed to the attestation of the said mutation without any objection.
8. On the other hand, Ms. Vandana Kuthiala, learned counsel for the private respondents has drawn the attention of this Court to the documents which have been so filed by the private respondents with the reply to the writ petition and submitted that as 'Ishtehar' which was duly issued by the authorities concerned during the course of process of consolidation (page 109 and 110 of the paper book) demonstrates that the same was duly signed by the Moti Lal (petitioner No. 3) as well as Churu Ram, the predecessor-in- interest of petitioners No. 1 and 2. Therefore, petitioners cannot be ::: Downloaded on - 14/06/2017 23:59:33 :::HCHP 4 permitted to say that they were not present at the time when the mutation was attested.
.
9. Be that as it may, primarily as is evident from the pleadings, the petitioners are aggrieved by the conferment of proprietary rights upon the petitioners alongwith private respondents during consolidation proceedings. However, fact of the matter still remains that the conferment of the proprietary rights upon the private respondents has been done by the authority concerned under the provisions of H.P. Tenancy and Land Reforms Act and the order so passed by the authority has not been assailed under the provisions of the H.P. Tenancy and Land Reforms Act by the present petitioners. In my considered view, the revision was filed under Section 54 of the Consolidation Act simply on the ground that the area at the relevant time was not under consolidation was totally misconceived. Remedy of the petitioners, if any was now under H.P. Tenancy and Land Reforms Act.
10. Faced with this situation, Mr. Rahul Mahajan, learned Counsel for the petitioner submits that he may be granted some time to obtain some instructions in the matter. Allowed as not opposed. List on 12.06.2017, as prayed for."
2. Today, Mr. Rahul Mahajan, learned counsel appearing for the petitioners, on instructions from S/Sh. Pritam Chand and Moti Lal, petitioners No.1 & 3 , who are present in the Court in person, submits that he may be permitted to withdraw the revision petition, which was wrongly filed under section 54 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, with liberty to approach the appropriate authority for redressal of the issue, which was so raised in the revision petition filed under section 54 supra. Request so made by Mr. Mahajan is ::: Downloaded on - 14/06/2017 23:59:33 :::HCHP 5 allowed. Petition filed under section 54 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 of the present petition is .
permitted to be withdrawn with liberty, as prayed for.
3. As the petitioners have been permitted to withdraw the revision petition, which was filed under section 54 supra, the order which was passed on the said petition by the authority concerned also goes and becomes inoperative. Liberty, which is being granted to the petitioners, to pursue their case before the appropriate authority, is subject to all just exceptions, which are available to the present respondents. However, it is clarified that in case limitation comes in the way of the petitioners, then the time which they have spent in pursuing the petition filed under section 54 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 and present petition shall be taken into consideration while calculating the same by the authority concerned. It is again clarified that this liberty is being granted to the petitioners subject to all exceptions and without prejudice to the rights of the respondents available to them in law.
4. At his stage, Mr. Mahajan submits that as the petitioners have been permitted to approach the competent authority for redressal of their grievance, which was raised by them by way of revision petition filed under section 54 supra, they may be protected till the time they file such petition before the appropriate authority alongwith an appropriate application praying for interim relief. Request so made by Mr. Mahajan is accepted to the extent that the parties shall maintain status quo as it exists today till 31.07.2017. In case, the petitioners do not file any petition before the ::: Downloaded on - 14/06/2017 23:59:33 :::HCHP 6 appropriate authority or if on their filing any such petition, no interim protection is granted to the petitioners by the appropriate authority, then .
this order shall automatically lapse on 31.07.2017.
5. It is further clarified that if petitioners approach the appropriate authority for redressal of their grievance and also file an application praying for interim relief, then said application shall be decided by the authority concerned in accordance with law after hearing all the parties, totally uninfluenced by any observations made by this Court. It is further clarified that as ample time has been granted to the petitioners to approach the appropriate authority by this Court, order on application for grant of interim relief shall be passed only after hearing both parties and onus to immediately serve the respondents after the petitioners approach the appropriate authority, shall squarely be upon the petitioners.
6. The writ petition is disposed of in the above terms. Pending applications, if any, also stand disposed of.
Copy dasti.
June 12, 2017 (Ajay Mohan Goel),
(rana) Judge.
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