IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Writ Petition No. 814 of 2006. Decided on: 1.7.2008. __________________________________________________ Gian Chand … Petitioner. Versus State of H.P. & Others. … Respondents. ___________________________________________________________ Coram: Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner : Ms. Vidushi Sharma, Advocate. For Respondents No.1 & 2 : Mr. Rajinder Dogra, Addl. A.G. For Respondents No. 3 to 6 : Mr. Shrawan Dogra, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. (Oral) A challenge has been laid by way of present writ petition to the order dated 12.5.2006 passed by the Financial Commissioner (Appeals), Himachal Pradesh. The brief facts necessary for the adjudication of this petition are that the petitioner had filed an application for resumption of land under the H.P. Tenancy & Land Reforms Act, 1972 (hereinafter referred to as the Act for convenience sake). The application was dismissed by the Land Reforms Officer on 11.3.1976. The petitioner submitted an application to the Land Reforms Officer (A.C. Ist Grade), Sundernagar on 26.12.1990 for tracing out the file. He reiterated the same prayer before 1 Whether reporters of the local papers may be allowed to see the judgment?No. 2 the Land Reforms Officer (A.C..Ist Grade), Sundernagar on 17.12.1992. The Land Reforms Officer, Sundernagar passed an order on 4.6.1993. The order dated 4.6.1993 reads thus: “Called. Both parties are present along with their counsel. Original file perused in presence of the Advocates to both the parties and it is found that in the column of ownership, some owners S/Shri Sushil Kumar and Dina Nath are minors and Smt. Rattani Devi is widow. The application has already been rejected by the Land Reforms Officer (TDR), Sundernagar u/s 104 (6) A on dated 11.3.1976. After it, the applicant has not filed any appeal before the Court of the competent Officer against this order within the statutory period. There is no provision in this rule to review the order dated 11.3.1976. After arguments, it concluded that at present the undersigned is not competent to interfere in the order dated 11.3.1976 of the Land Reforms Officer. In view of the above facts, the application dated 26.12.1990 filed by Shri Gian Chand applicant (also keeping in view the order dated 11.3.1976) is dismissed. Announced.” The petitioner preferred an appeal against order dated 4.6.1993 before the learned District Collector, Mandi on 17.8.1993. The appeal was barred by limitation and thus, application under Section 5 of the Limitation Act was also filed. The private respondent filed a detailed reply to the application under Section 5 of the Limitation Act. The learned Collector (ADC), Mandi, District Mandi, passed the order on 3.10.1994 and held that the petitioner has not made out any ground for condoning 3 the delay and the proper course for him was to file an appeal against the order of the Land Reforms Officer, Sundernagar dated 11.3.1976. It is apparent from the record that the petitioner in his appeal had made a prayer to set aside the orders dated 11.3.1976 and 4.6.1993. He preferred an appeal before the learned Commissioner, Mandi Division, Mandi against order dated 3.10.1994. The learned Commissioner, Mandi Division, accepted the appeal on 7.10.1996 and set aside the order dated 3.10.1994 passed by the Collector (ADC), Mandi and order dated 11.3.1976 passed by the Land Reforms Officer, Sundernagar and the case was remanded back to the Land Reforms Officer to decide the case de novo according to law. The private respondent filed a revision petition No. 53/97 before the learned Financial Commissioner (Appeals) assailing the order dated 7.10.1996 passed by the learned Divisional Commissioner, Mandi in case No. 96/95. The learned Financial Commissioner (Appeals) accepted the revision petition on 12.5.2006. He set aside the order of the learned Divisional Commissioner dated 7.10.1996. The orders of the learned Collector (ADC), Mandi dated 3.10.1994 and the Land Reforms Officer dated 4.6.1993 were up held. The present petition has been filed against the order dated 12.5.2006 passed by the learned Financial Commissioner (Appeals). Ms. Vidushi Sharma, learned counsel for the petitioner has strenuously argued that the order dated 12.5.2006 is not sustainable in the eyes of law and the order dated 7.10.1996 be restored by this Court. The learned Additional Advocate General has supported order dated 12.5.2006. 4 Mr. Shrawan Dogra, learned counsel for respondents No.3 to 6 has strenuously argued that the order dated 12.5.2006 is in accordance with law and the same is liable to be up held by this Court. I have heard the learned counsel for the parties and have perused the pleadings and the record carefully, as produced by the learned Additional Advocate General. What emerges from the facts enumerated above is that the petitioner filed an application for resumption of land on 30.10.1975 before the Land Reforms Officer. The application was rejected by the Land Reforms Officer on 11.3.1976. It was only on 26.12.1990 that he filed an application before the Land Reforms Officer to trace out the file. The petitioner has failed to explain the delay between 11.3.1976 to 26.12.1990. The petitioner was aware that he had filed an application on 30.10.1975 and it was for him to see the out-come of the same. It cannot be believed that he was not aware of the order dated 11.3.1976 till 26.12.1990. He remained silent for another two years and it was only on 17.12.1992 that another application, similar to one filed on 26.12.1990, was preferred before the Land Reforms Officer, Sundernagar. The Land Reforms Officer, Sundernagar had correctly observed that he could not review the order dated 11.3.1976 and the petitioner should have filed an appeal against the order dated 11.3.1976. He preferred an appeal before the learned Collector which was barred by time. The learned Collector in his order dated 3.10.1994 did not condone the delay and consequently, the appeal was dismissed. However, in his order, it has come that the petitioner had not assailed the order dated 11.3.1976 though as per the record, in his appeal, he had prayed for quashing of order dated 11.3.1976 and order dated 4.6.1993. The learned Divisional Commissioner on 5 7.10.1996 had set aside the order dated 11.3.1976 and 3.10.1994. The order dated 11.3.1976 has been primarily set aside on the ground that the petitioner was not heard at the time when the order was passed by the Land Reforms Officer. The learned Commissioner, Mandi had remanded the matter back to the Land Reforms Officer. The petitioner has filed an application, as noticed in the opening portion of the judgment, for resumption of land on 30.10.1975 and it was dismissed by the Land Reforms Officer on 11.3.1976. He remained silent for 14 long years till 26.12.1990. He preferred an application for tracing out the file on 26.12.1990. The valuable rights had accrued to the tenants between 11.3.1976 and 26.12.1990 on the basis of order dated 11.3.1976 passed by the Land Reforms Officer. This settled position was tried to be unsettled by the petitioner by submitting two applications dated 26.12.1990 and 17.12.1992. The same have been rightly rejected by the Land Reforms Officer, vide order dated 4.6.1993. The order dated 4.6.1993 was up held by the learned Collector on 3.10.1994 and it was only on 7.10.1996 that the order of remand has been passed by the Commissioner, Mandi. The order of remand by the Commissioner is after 20 long years only on the ground that the petitioner was not heard at the time when the order dated 11.3.1976 was passed by the Land Reforms Officer. Thereafter, the matter remained pending with the Financial Commissioner (Appeals) till 2006. The Financial Commissioner has taken a reasonable view in peculiar facts and circumstances of the case that the matter, which was settled long back determining the rights of the parties, should not be unsettled by re-opening the same. The order was passed by the Land Reforms Officer on 11.3.1976 and at the time when the Financial Commissioner passed the order in the year 2006, thirty years 6 had elapsed. The effect of re-opening the matter at this belated stage will amount to re-determining the rights of the tenants afresh vis-à-vis the owners after thirty years. The matter can be viewed from another angle. The petitioner ought to have filed an appeal against the order dated 11.3.1976 before the learned Collector. He remained silent for number of years. The Land Reforms Officer vide order dated 4.6.1993 has not re-opened the case and rightly so. His appeal was barred by limitation. The appeal as far as order dated 11.3.1976 is concerned, it was barred by eighteen years. The appeal filed against the order dated 4.6.1993 was also barred by limitation. The Collector has not condoned the delay in filing the appeal as is evident from the order dated 3.10.1994. The learned Commissioner, as is evident from order dated 7.10.1996, has not gone into the question of limitation while setting aside the order dated 11.3.1976. The delay could only be condoned after properly constituted application was filed before him under Section 5 of the Limitation Act, 1963. A valuable right has vested in the tenants on the basis of order dated 11.3.1976 passed by the Land Reforms Officer. The order of the Collector, which was assailed before the Commissioner, Mandi, is dated 3.10.1994. The appeal was filed on 19.5.1995. The same was also barred by limitation. This aspect has also not been taken into consideration by the learned Commissioner while passing order dated 7.10.1996. The petitioner has failed to point out from the record that any application was preferred under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing an appeal before the Commissioner against order dated 3.10.1994 passed by the learned ADC, Mandi, District Mandi. 7 The learned Additional Advocate General and Mr. Shrawan Dogra have also drawn the attention of the Court to the application (Form LR-V) presented before the Land Reforms Officer. This application has not been signed by the petitioner. This application was marked to the Ahlmad by the Land Reforms Officer on 1.11.1975. It is only in the second copy of the application (Form LR-V) that the name of the petitioner has been mentioned. In these circumstances, the application, which was marked by the Land Reforms Officer to the Ahlmad is to be treated as an application in accordance with law. The learned counsel appearing on behalf of the petitioner has failed to point out why the signatures of the petitioner were not appended in the main application but the same has been appended by him in the second copy of the application, which was not marked by the Land Reforms Officer to the Ahlmad. The learned Financial Commissioner has come to the right conclusion that the possibility of the record being tampered with could not be ruled out. The Court agrees with these observations of the learned Financial Commissioner as recorded in his order. The learned Financial Commissioner has passed a reasoned order taking into consideration the pendency of the cases since 11.3.1976. There is neither any jurisdictional error nor any procedural irregularity in the order dated 12.5.2006. Consequently, there is no merit in this writ petition and the same is dismissed. No costs. (Rajiv Sharma), J. July 1, 2008. (cr)