IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 292 of 1995. Judgment reserved on 17.5.2011 Date of decision: 1.6. 2011 Shri Budhi Ram ….Appellant. Versus Sh. Maru and others ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the appellants : Mr. Ankush Dass Sood, Advocate. For respondents : Mr. Ramakant Sharma, Advocate, for respondents No. 1, 2 and 5 to 8. Names of respondents No. 3 4(b) and 9 deleted. Respondents No. 4 (a), 3 (c) and 4 (d) ex parte. Surinder Singh, J : Appellant hereinafter referred to as ‘the plaintiff’ failed to get relief sought in his suit from the Courts below, as such filed the present Regular Second Appeal, which was admitted on the following substantial questions of law: (i) Whether under the circumstances of the case, Consolidation Officer has the jurisdiction to change 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - the entries in the Revenue records after the proceedings under Section 21 of the Himachal Pradesh Consolidation Act, has been concluded? (ii) Whether there was any evidence on record to show that there was justification for effecting the change of entries and in the absence of such evidence, whether the civil Court has no jurisdiction to decide about the status of the parties? (iii) Whether it was correctly held that the civil Court had no jurisdiction to try the suit? (iv) Whether it was correctly held that the suit of the plaintiff was barred by time? 2. Precisely, the facts giving rise to the present appeal are that Shri Chunka etc. were owners of the suit land. The plaintiff claimed that Shri Shivo, his father was a tenant under Chunka on payment of ` 6.25 paise as rent. On the death of his father, he was in the womb of his mother, therefore, his mother inherited the tenancy of the suit land. When she gave birth to the plaintiff, she got mutated non-occupancy tenancy rights in favour of the plaintiff. It is alleged that the respondents hereinafter referred to, as ‘the defendants’, during the consolidation proceedings got themselves recorded as tenant with respect to the suit land in connivance with the Consolidation Officer. His - 3 - order dated 10th/11th June, 1975, on the basis of which the defendants 1 to 3 i.e. Sh. Maru, Sh. Lekh Ram and Smt. Noratoo widow of Khajana Ram entered as tenants, on the land under Chunka etc, is without jurisdiction because by that time, the plaintiff had already become the owner of the suit land. Against this order, the plaintiff preferred revision petition challenging the competency of the Consolidation Officer before the Director of Consolidation but vide order dated 21.4.1981, it was dismissed and order impugned was upheld by the Director Consolidation. The plaintiff alleged that defendants never came in possession of the suit land and their tenancy entry under Chunka etc. was against law and facts therefore, nonest on the rights of the plaintiff. Thus, sought the relief of declaration to the above fact with the consequential relief of injunction. 3. The suit was resisted and contested by the defendants. They filed their written statement whereby they challenged the jurisdiction of the Civil Court to try and entertain the suit since the order of correction emerges out of the consolidation proceedings and also took up the plea of limitation. - 4 - 4. On merits, they denied the claim of the plaintiff and the tenancy of his father qua the suit land. Thus, there was no question of obtaining the proprietary rights of the impugned land. It was pleaded that the consolidation Officer rightly entered the name of the defendants as tenants in the suit land, after due enquiry. Since they being in possession, no relief as prayed for could be granted to the plaintiff. 5. On the pleadings of the parties, following issues were framed by the learned trial Court:- 1. Whether the plaintiff was the tenant of land measuring 7-4 bighas under Chunka on payment of 6-25 paise as annual rent, as alleged? OPP 2. Whether the plaintiff has become owner of the land, in question by way of payment of compensation to the owners as alleged except the share of Jai Devi? OPP 3. Whether the orders of Consolidation Officer and Director of Consolidation are wrong and illegal? OPP 4. Whether the note of grant of proprietary rights to the defendants is incomplete, if so, its effect? OPP 5. Whether the plaintiff is entitled for decree of permanent injunction and in the alternative for possession? OPP - 5 - 6. Whether the defendants have restrained the plaintiff from cutting the bushes on 15.4.1981, if so, its effect? OPP 7. Whether the suit is within limitation? OPP (objected to) 8. Whether the plaintiff is in possession of the suit land? OPP 9. Whether this court has no jurisdiction to hear and decide the suit? OPD 10. Whether the plaintiff is estopped from filing the present suit? OPD. 11. Relief. 6. After the complete trial and upon hearing the parties, learned trial Court decided issues Nos. 1 to 6 against the plaintiff consequently, suit was dismissed, therefore, appeal was filed by the plaintiff before the learned District Judge. The contention which was made before the learned first appellate Court was that the Consolidation officer was not competent to change the entries of tenancy, in his capacity as Assistant Collector-II grade while the order could only be passed by Assistant Collector 1st grade as such for both reasons, the order passed by the Consolidation Officer making the correction in favour of the defendants is illegal. It was also contended that the - 6 - dispute related to the title therefore, it should have been referred to the Arbitrator for decision. 7. The learned District Judge, after re-examining the evidence on record, came to the conclusion that the earlier entry was in favour of the plaintiff but it stood rebutted by the latest entries in the jamabandi placed on record, as per orders of the Consolidation Officer which was upheld by the Director Consolidation who was competent and had all the powers conferred upon the powers of Assistant Collector and Collector under the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 during the time when such sub-division of the estate was under consolidation operation. Thus, the matter was rightly decided by him, as per provisions of Section 37 of the H.P. Land Revenue Act, 1953. Once the matter was decided in accordance with the said provisions, Section 57 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 bars the jurisdiction of the Civil Court with respect to any matter arising out of the consolidation proceedings or with respect to any other matter in regard to which a suit or application could be - 7 - filed under the provisions of the said Act. Since there was no restriction placed upon the Consolidation Officer that there must be a person of the rank of Assistant Collector 1st Grade, the order passed by him cannot be held to be illegal on this account and further that this plea was also not taken before the learned trial Court. The learned District Judge also held that the suit was filed after five years of the passing of the impugned order, it attracts Article 100 of the Limitation Act, 1963, hence suit is also barred by limitation. Thus, findings of the learned trial Court on this issue were reversed and dismissed the appeal. 8. Shri Ankush Dass Sood, learned counsel for the appellant vehemently argued that the Consolidation Officer could not have carried out the correction in the revenue record as he was not invested of any powers of Collector or Assistant Collector by any notification of the State Government under sub-section (3) of Section 15 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 in short ‘1971 Act’. Further that if the defendants had any dispute about the correctness and nature of any entry in the revenue record, they could have filed their - 8 - objections to the Assistant Consolidation officer and he is under obligation to submit his report to the Consolidation Officer for his decision but the objections if involves the question of title or has not already been determined by the competent Court, he shall refer the matter to the Arbitration for his decision whose decision shall be final, as per provisions of Section 21 of the said Act. He further submitted that the possession is a question of title and it was required to be sent to the Arbitrator for his determination, as per the procedure above mentioned. Since the fundamental procedure as laid down under the Act was not adopted during the consolidation proceedings, therefore, the Civil Court has a jurisdiction to try and determine the suit. Since the orders are wrong and illegal therefore, it is a continuing cause of action, the bar of limitation was wrongly applied. 9. Contra, Shri Ramakant Sharma, learned counsel for the respondents placed on record a notification No. 9-1/73-Rev-II dated 25.4.1973 issued by the Government in terms of Section 15 (3) of the Act conferring upon the Settlement Officer (Consolidation), all the Consolidation Officers, and the Assistant - 9 - Consolidation Officers, powers of Collector, Assistant Collector 1st Grade and Second Grade respectively for the purposes mentioned in sub Section (2) of Section 15 of the Act w.e.f. 1st July, 1972 to be exercised within their respective jurisdictions. He submitted that a judicial notice of the above notification issued under the Act has to be taken whereby the Consolidation Officer was invested with the powers to proceed to correct the revenue record as Assistant Collector in accordance with the provisions of the ‘1971 Act’. According to him Section 21 of the ‘1971 Act’ only applies where there has been a publication of the statement prepared under Section 20 of the Act, any person within 30 days of such application may file his objections before the Assistant Consolidation Officer disputing the correctness or nature of any entry in the statement pointing out any omission there from. According to him Section 17 applies to the revision and correction of records and both Sections, i.e., 17 and 21 of the Act are to be exercised at different stages and it has no relation with each other. He also submitted that once there is proper exercise of jurisdiction under law by the Consolidation authorities, Section 57 of the Act - 10 - creates a bar to the Civil Court with respect to any matter arising out of the Consolidation proceedings. 10. Admittedly, prior to the order dated 10.4.1975 (Ext. P17) passed by the Consolidation Officer in favour of the defendants, the plaintiff was recorded as non-occupancy tenant with respect to the suit land under Chunka and others. Admittedly, in the year 1975, the area was under consolidation. Legally, when a declaration is made under Section 14 of ‘1971 Act’ regarding consolidation the Collector of the District ceases to exercise control over the consolidation staff till the estate is not de-notified. Therefore, the entire revenue record is transferred from territorial staff to the Consolidation staff. Section 15 reads as under:- “15 (1) On the publication of the declaration under Section 14 an estate, group of estates or a sub-division of an estate, as the case may be, shall be deemed to be under consolidation operations from the date of such publication until the publication of the notification that the consolidation operations have been closed. “15 (2) Where an estate, group of estates or a sub-division of an estate is under consolidation operations, the duty of maintaining the maps, field book and preparing the annual record under the Himachal Pradesh Land Revenue - 11 - Act, 1954 (6 of 1954), as applicable to the areas which formed part of the Himachal Pradesh immediately before the 1st day of November, 1966, and the Punjab Land Revenue Act, 1887 (17 of 1887), as applicable in the areas added to Himachal Pradesh under Section 5 of the Punjab Reorganization Act, 1966 (31 of 1966), and the rules framed there under, shall stand transferred to the Settlement Officer (Consolidation) and thereupon all the powers conferred on the Collector and assistant Collector, under the said Acts and rules, shall, so long as an estate, group of estates or a sub-division of an estate remains under consolidation operations, be exercised by the following officers:- 1. The Director of Consolidation of Holdings. 2. Settlement Officer (Consolidation). 3. Consolidation Officer. 4. Assistant Consolidation Officer. (3) The State Government may by notification confer on any officer mentioned in sub-section (2) the powers of Collector, all or any of the powers with which an Assistant Collector, may be invested under the Himachal Pradesh Land Revenue Act, 1954 ( 6 of 1954) or the Punjab Land Revenue Act, 1887 (17 of 1887), as the case may be.” - 12 - 11. Thus it is clear that so long as the area remains under the consolidation operation, the record shall stand transferred to the settlement officer (Consolidation) and the State Government by notification may invest on any officer mentioned above the powers of Collector all or any of the powers of Assistant Collector under the H.P. Land Revenue Act 1954 or the Punjab Land Revenue Act 1887 as the case may be, conferring the duty to maintain maps, field books and preparing annual record under the H.P. Land Revenue Act and Rules framed thereunder. 12. The notification referred to above clearly confers the powers of Assistant Collector 1st Grade on the Consolidation Officers and Second Grade, on the Assistant Consolidation Officers. 13. They are authorized to make the revision and corrections of records. Sub-Section (1) of Section 17 of ‘1971 Act’ provides the procedure for the revision of maps by complete re-measurement of the village by the Settlement Staff and sub-section 2 of Section 17 of the Act provides for the correction of entries in the - 13 - revenue records where the revision of maps, and record is not necessary in the following manner:- “Section 17 (2). Where he is of the opinion that a revision of maps and record is not necessary, he shall proceed to carry out in the manner prescribed a field to field partal with the help of the village map and field book and shall correct the entries in the revenue records in accordance with the provisions of the Himachal Pradesh Land Revenue Act, 1954 (6 of 1954), or the Punjab Land Revenue Act, 1887 (17 of 1887), as the case may be, and the rules framed thereunder.” 14. It is thereafter the record is published and its copy is sent to the Collector under Section 18 of the said Act. After complying with the provisions of Section 19 and 20 (1) of the Act, the publication is made under sub-section 20 (2) of the Act. It is that stage if any person raises any objection, only then, the provisions of Section 21 of the Act would apply and in case the question of title would arise, that shall be decided by the Arbitrator as per provisions of sub- section (4) of Section 21 of ‘1971 Act’. 15. In the instant case, there is nothing on record to show that at the time when the order of - 14 - correction was passed by the Consolidation Officer, the publication of the record was made. Therefore, in my opinion, he had the jurisdiction and was competent to correct the record in his capacity as Assistant Collector in accordance with the provisions of H.P. Land Revenue Act, 1954 as Section 37 of H.P. Land Revenue Act provides if during the making or preparation of any record, a dispute arises as to any matter of which an entry has to be made in a record, the revenue Officer of his own or on the application of any interested party and after such inquiry as he thinks fit, determine the matter which was done by him. 16. Against the order of Consolidation Officer, the plaintiff had filed a revision petition under Section 54 of ‘1971 Act’ before the Director and his revision petition was dismissed on the ground that the Consolidation Officer was duly empowered for such a purpose and he did not find any infirmity in the impugned order as such dismissed the revision petition. The Consolidation Officer as well as the Director (Consolidation) both acted in accordance with the provisions of the ‘1971 Act’. Since the - 15 - matter arises out of the Consolidation proceeding, therefore, Section 57 creates a bar to Civil Court with respect of such matters. Section 57 of the said Act reads as under:- “Section 57.- Jurisdiction of Civil Court barred as regards matters arising under this Act.- No person shall institute any suit or other proceedings in any civil court with respect to any mater arising out of the consolidation proceedings or with respect to any other matter in regard to which a suit or application can be filed under the provisions of this Act.” 17. Thus for the foregoing reason when no fundamental procedure under the Act has been shown to have been infracted, the jurisdiction of the Civil Court in such matter is barred and the suit rightly stands dismissed on this score by the Courts below. 18. Further, the suit was filed by the plaintiff in the year 1986, i.e., after a lapse of five years from the order of Director Consolidation. For this reason also, the suit is barred by Article 100 of the Limitation Act, as held by the learned first appellate Court. 19. For the foregoing reasons, the substantial questions of law are accordingly answered. - 16 - 20. No other points urged before me. 21. The appeal sans merit and is accordingly dismissed. June 1, 2011 (Surinder Singh), (cm) Judge.