Himachal Pradesh High Court
Joginder Dutt vs The State Of Himachal Pradesh on 9 September, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No.1227 of 2018
Date of decision: 09.09.2019
.
Joginder Dutt ...... Petitioner.
Versus
The State of Himachal Pradesh
through its Secretary (Revenue)
& others ...... Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1 Yes
For the petitioner
r : Mr. V.D. Khidtta, Advocate.
For the respondents : Mr. Dinesh Thakur, Additional
Advocate General with Mr. Amit
Kumar Dhumal, Ms.Divya Sood,
Deputy Advocate Generals and Mr.
Sunny Dhatwalia, Assistant
Advocate General.
Ajay Mohan Goel, Judge. (Oral)
By way of this Petition, petitioner has prayed for following relief:-
"(i) That writ in the nature of certiorari may kindly be issued and the impugned order dated 30.11.2013 (Annexure P-3), Order dated 30.06.2014 (Annexure P-5), order dated 28.03.2016 (Annexure P-6) and order dated 17.11.2017 (Annexure P-8), may kindly be quashed and set aside.
(ii) That the respondents 1 to 5 may kindly be directed to produced the entire records pertaining to the case of the petitioner.
(iii) That the respondents 6 and 7 may kindly be burdened with the cost of this petition.1
Whether the reporters of Local Papers may be allowed to see the judgment? ::: Downloaded on - 29/09/2019 03:59:48 :::HCHP 2
(iv) Any other order which are deemed just and proper in the fact and circumstances of the case, may kindly be passed in favour of the petitioner and against the respondents."
2. Brief facts necessary for the adjudication of the .
present petition are that pursuant to the death of one Shri Devi Dutt, some of his legal representatives approached the Revenue Authorities for attestation of mutation in their favour with regard to the propriety of deceased.
3. Vide Annexure P-1, the application so filed was rejected by the Revenue Authorities inter alia on the objection taken by present petitioner that there was a Civil Suit pending in the Court of learned Civil Judge (Junior Division), Court No.II, Rohru, pertaining to the inheritance of the propriety of Shri Devi Dutt, i.e. Civil Suit No. 40-6/2013, in which there was an interim order passed by the Court, whereby it was ordered by the Court that the parties were to maintain status-quo, qua the suit land. A perusal of Annexure P-1 demonstrates that the Revenue Authority dismissed the application on the ground that as the matter was sub judice, therefore, till the adjudication of the lis by the Civil Court, it was dismissing the application.
4. This order was assailed by contesting respondent Shashi Bhushan Bhardwaj, by way of an appeal before the Court of learned Collector, Rohru. Vide Annexure P-2, the appeal so filed was withdrawn by respondent No.6 herein on 28.11.2013, by stating that he did not want to pursue the appeal any further. ::: Downloaded on - 29/09/2019 03:59:48 :::HCHP 3
5. Thereafter, respondents No.6 and 7 again approached the Revenue Authority for attestation of mutation of the estate of deceased Shri Devi Dutt, on the basis of a Will executed by him dated 16.02.2009 and mutation was attested by .
the Authority concerned on the basis of said Will vide Annexure P-3 after hearing all the parties.
6. Feeling aggrieved, said mutation was assailed by petitioner Joginder Dutt Bhardwaj, under Section 14 of H.P. Land Revenue Act, before Sub-Divisional Collector, Rohru, which appeal was dismissed on 30.06.2014. The order passed by the Appellate Authority was, thereafter, challenged by way of a Revision Petition before Divisional Commissioner, Shimla, H.P. under Section 17 of the H.P. Land Revenue Act. This Revision Petition No. 34/2015 was also dismissed by the Revisional Authority on 28.03.2016. The order so passed by the Revisional Authority was assailed again under Section 17 of the H.P. Land Revenue Act before the Financial Commissioner (Appeals), Shimla, by way of Revision Petition No. 134 of 2016. Learned Financial Commissioner while reiterating the order, passed both by the Appellate Authority and the 1st Revisional Authority, dismissed said appeal also vide order dated 17.11.2017 vide Annexure P-8.
7. Feeling aggrieved, petitioner has filed the present petition.
8. Learned counsel for the petitioner has argued that impugned orders passed by the Authorities below are not ::: Downloaded on - 29/09/2019 03:59:48 :::HCHP 4 sustainable in the eyes of law, as the Authorities below have erred in not appreciating that order dated 30.11.2013, Annexure P-3, so passed by Assistant Collector, 1st Grade, could not have been passed by said Authority, as when the said Authority had .
already earlier dismissed an application filed for mutation of the property of late Shri Devi Dutt, then it had no power to review its earlier order.
9. In the alternative, learned counsel for the petitioner has argued that assuming that the Authority was having the jurisdiction to decide subsequent application filed by the parties for attesting mutation of the property of deceased Devi Dutt, then also the impugned order passed by the Assistant Collector, 2nd Grade was bad in law as said Authority erred in not appreciating that no mutation could have been attested on the basis of the Will of late Shri Devi Dutt, as the executor of the Will had no authority in law to make a Will of property other than his self acquired property or his share in ancestral property. No other point was urged.
10. On the other hand, learned counsel for the respondents has argued that there was neither any illegality nor any perversity with the impugned orders as order dated 30.11.2013 passed by the Authority dated 30.11.2013 by no stretch of imagination could be termed to be a review of order dated 30.11.2013. He has further argued that as far as the alternative submission of learned counsel for the petitioner is concerned, qua that a Civil Suit was pending before appropriate ::: Downloaded on - 29/09/2019 03:59:48 :::HCHP 5 Court of Law and even otherwise it was not for the Revenue Authorities to go into the validity of a Will.
11. I have heard learned counsel for the parties and have also gone through the impugned orders as well as the record of .
the case.
12. It is a matter of record that earlier an application filed by some of the legal representatives of deceased Shri Devi Dutt for attesting mutation of the estate of the deceased was rejected by the concerned Revenue Officer vide Annexure P-1 on 03.05.2013 for reasons already mentioned by him hereinabove. It is also a matter of record that an appeal filed against said order by Shri Shashi Bhushan Bhardwaj was withdrawn by him on 28.11.2013. However, it is not as learned counsel for the petitioner wants this Court to believe that despite having passed Annexure P-1, the Authority concerned illegally, reviewed its earlier order and passed impugned order dated 30.11.2013 with regard to attestation of mutation qua the property of Shri Devi Dutt.
13. As is borne out from the record in fact what happened was that the Court of learned Civil Judge (Junior Division), Court No.II, Rohru, in a miscelaneous application filed by present petitioner i.e. CMP No.105-6/13, filed in Civil Suit No.26-1/13, vide order dated 03.07.2013, while dismissing said application, passed the following order:-
"there is no need to restrain the revenue authority from doing there statutory duty, which is mandatory in nature and in the interest of public ::: Downloaded on - 29/09/2019 03:59:48 :::HCHP 6 policy to update the revenue record, and have no presumptive value nor create any title, so even no need to insert in relief clause".
14. It was, thereafter, when contesting respondents i.e. respondents No.6 and 7 approached the Revenue Authorities .
afresh for attestation of mutation that order dated 30.11.2013, Annexure P-3 was passed. This is clearly borne out from the order passed by the learned Financial Commissioner dated 17.11.2017 (Annexure P-8).
15. Therefore, it is not a case wherein the earlier order was reviewed by the Revenue Officer as has been submitted by learned counsel on behalf of petitioner.
16. The contention of learned counsel for the petitioner that Annexure P-3 is a gross violation of the provisions of Sections 16 and 17 of the H.P. Land Revenue Act, in my considered view, also has no merit. It is reiterated that it is not as if vide Annexure P-3, earlier order passed vide Annexure P-1 was reviewed by the Revenue officer. In fact, the Revenue Officer vide Annexure P-1 had passed no order on merit. It had simply dismissed the application filed before him for attestation of mutation on the grounds already mentioned hereinabove.
17. At the cost of repetition, I state that after the application filed by petitioner for interim relief in the Civil Suit, stood dismissed and a fresh application for attestation of mutation was filed by present respondents No.6 and 7, thereafter, a fresh order and that too of hearing all the parties including present petitioner was passed by the Revenue Officer, ::: Downloaded on - 29/09/2019 03:59:48 :::HCHP 7 vide Annexure P-3. Therefore, there is no merit in the contention of learned counsel for petitioner that Annexure P-3 is bad in law. This Court is not oblivious to the fact that right to review, is a statutory right and not a common right and a Quasi Judicial .
Authority or a Court of Law has no right to review its order unless the statute confers upon it the right to review. However, in the present case as I have already held above, the Authority concerned did not review its earlier order while passing order dated 30.11.2013, Annexure P-3.
18. As far as the alternative submission of learned counsel for the petitioner is concerned, in my considered view, the same also has no force. As legality of the Will in issue is already sub judice before the learned Civil Court, but obvious, orders which have been passed by the Revenue Authority, shall abide by the outcome of the same. Suffice it to say that submission of learned counsel that Assistant Collector should have gone into validity of the Will, in my considered view, is without any merit. Whether or not, a Will is validly executed or not, which obviously would include the factum of the power of executor to bequeath the properties mentioned therein, has to be decided by a Civil Court and this is not the domain of Revenue Authority.
19. In the course of the adjudication of present petition, this Court is exercising its power of Judicial Review. It is settled law that in exercise of its power of Judicial Review, the High Court is not to lightly interfere with the findings returned by the Quasi ::: Downloaded on - 29/09/2019 03:59:48 :::HCHP 8 Judicial Authorities below, until and unless the findings returned are so blatantly and palpably perverse that they shock the .
Judicial conscious of the Court.
20. A careful perusal of the orders which stand impugned by way of this petition, demonstrate that in this case, it cannot be said that the findings returned by the Courts below are perverse and not born out from the record. It is not the case of petitioner that the Authorities below have flouted the principle of natural justice. Therefore, also this Court finds no reason to interfere with the orders impugned. It is again clarified that because a Civil Suit has been filed by petitioner wherein the veracity of the Will stands challenged, it is but obvious that orders passed by the Revenue Authorities shall have to abide by the outcome of the said Civil Suit. It is further clarified that the observations which have been made by this Court while disposing of this petition, only relate to the validity of orders which have been passed by the Quasi Judicial Authorities and the Civil Suit which is pending before the Court of learned Civil Judge (Junior Division) shall be decided by the Court on the basis of pleadings before it and evidence adduced by the parties before it and the Court shall not be influenced by any observation which had been made by this Court in this order. Petition ::: Downloaded on - 29/09/2019 03:59:48 :::HCHP 9 stands disposed of, so also pending miscellaneous applications if any. Interim order, if any, also stands vacated.
(Ajay Mohan Goel), Judge September 09, 2019 .
(Rishi)
r to
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