1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 398 of 2007 Reserved on : 3.4.2008 Date of Decision : 29.4.2008. Prem Singh …Petitioner. Versus F.C. (Appeals) & Ors. …Respondents Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1 For the petitioner : Mr. M.A.Khan, Advocate. For the respondents No.1 to 3 : Mr. Rajinder Dogra, Additional Advocate General. For the respondent No. 4 : Mr. K.S.Banyal, Advocate. Rajiv Sharma, J. The brief facts necessary for the disposal of this petition are that the respondent No.4 filed an application for correction of dimensions of Khasra No.405 (old) situated in Tikka Bhakreri, Tappa Vani, Tehsil Barsar, District Hamirpur, H.P. before the Settlement Collector, Kangra Division at Dharamshala. The Collector Settlement forwarded the application to the Tehsildar (Settlement), Barsar for inquiry and report. The Tehsildar (Settlement) further forwarded the same to the Naib Tehsildar, Barsar for inquiry and report. The Naib Tehsil (Settlement), Barsar visited the spot and submitted the report to the Collector (Settlement). The Collector (Settlement) passed the order on the basis of the report furnished by the Naib Tehsil (Settlement) Barsar on 8.11.2001. The petitioner filed a revision petition before the Divisional Commissioner assailing the order dated 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 8.11.2001. The Divisional Commissioner, Mandi Division, dismissed the revision on 19.10.2005. The petitioner filed a revision under Section 17 of the H.P.Land Revenue Act, 1953 against the order of the Divisional Commissioner before the Financial Commissioner (Appeals). The Financial Commissioner (Appeals), dismissed the revision on 6.11.2006. Mr. M.A.Khan had strenuously argued that the orders passed by the Settlement Collector dated 8.11.2001, order dated 19.10.2005 passed by the Divisional Commissioner, Mandi Division and order dated 6.11.2006 passed by the Financial Commissioner (Appeals) are not sustainable in the eyes of law. Mr. Khan further contended that his client was not arrayed as party at the time of filing of application by the respondent No.4 for carrying of corrections of dimensions of Khasra No.405 (old) before the Settlement Collector. He then contended that the Divisional Commissioner has not appreciated the submissions made by his client before him and the order of the Financial Commissioner (Appeals) is also bad in law since the same has been passed ex-parte. The learned Additional Advocate General appearing on behalf of respondents No.1 to 3 and Mr. K.S.Banyal, Advocate appearing for respondent No.4 had supported the impugned orders. I have heard the learned counsel for the parties and perused the records. It is evident from the order dated 8.11.2001 passed by the Collector (Settlement) that the petitioner was not made party in the application. The petitioner was necessary party since his rights were likely to be affected by the orders passed by the Collector (Settlement). Mr. Banyal had strenuously argued that the petitioner Sh.Prem Singh and his brother Ajit Singh have made statements before the Naib Tehsildar (Settlement), Barsar at the time of inspection to the effect that they had no objection if the corrections are 3 carried out as suggested by the respondent No.4. Mr. M.A.Khan to the contrary had contended that his client has not made any statement before the Naib Tehsildar (Settlement) on 8.11.2001 as projected by the respondent No.4. It appears from the record that the order has been passed by the Settlement Collector on 8.11.2001 as per report furnished by the Naib Tehsildar (Settlement). The Settlement Collector though has passed the order on the basis of the report furnished to him by the Naib Tehsildar (Settlement), he was bound to hear the present petitioner during the course of proceedings pending before him. The petitioner in his grounds of revision had taken a specific ground that he was not afforded reasonable opportunity of being heard at the time when the order was passed by the Settlement Collector on 8.11.2001. This aspect of the matter has been overlooked by the Divisional Commissioner, while dismissing the revision preferred by the petitioner on 19.10.2005. Once the plea has been raised by the petitioner that he has not been heard by the Settlement Collector, the same was required to be looked into by the Divisional Commissioner while deciding the revision preferred by the petitioner on 19.10.2005. The Divisional Commissioner had only reiterated what has been stated by the Settlement Collector in his order dated 8.11.2001. It is also clear from the order passed by the Financial Commissioner (Appeals) dated 6.11.2006 that the petitioner has not been heard at the time of hearing of the revision No.159/2006. The Financial Commissioner (Appeals) ought to have adjourned the matter, since neither the petitioner nor his counsel was present before him. The Financial Commissioner (Appeals) instead of adjourning the matter to enable the petitioner to make himself available for hearing, has decided the matter on its merits ex-parte. Had the petitioner been afforded reasonable opportunity of hearing before the Financial Commissioner (Appeals) he could canvass his points taken in the revision more effectively. 4 The petitioner has taken a specific ground in his revision that he was not impleaded as party at the time when the respondent No.4 had preferred an application for correction of Khasra No.405 (old). He had also taken specific grounds in his revision petition that the Courts below i.e. Settlement Collector and Divisional Commissioner has not correctly looked into the Musavi of the concerned Khasra numbers. He had also placed a copy of the Musavi alongwith his revision petition. It is thus, evident from the discussion made hereinabove, that there is gross violation of the principles of natural justice by the three authorities below namely: (i) the petitioner has not been added as party by the respondent No.4 before the Settlement Collector; (ii) the petitioner has not been heard by the Settlement Collector at the time of passing of order dated 8.11.2001. The plea raised by the petitioner that he has not been heard by the Settlement Collector, has been brushed aside by the Divisional Commissioner in his order dated 19.10.2005. The order has been passed by the Financial Commissioner (Appeals) on its merits without hearing the petitioner. The Financial Commissioner (Appeals) should have atleast granted one opportunity to the petitioner to make himself available personally or through his counsel. The Financial Commissioner (Appeals) has only returned the finding that the corrections have been ordered on the basis of the comparison of old and new Maps by the authorities below. Even though he had proceeded to decide the matter in the absence of the petitioner or his counsel, but has failed to take into consideration the pleas raised by the petitioner in his revision as discussed hereinabove, more particularly copies of Musavi annexed with the revision petition (Annexure P-2 & P-3). Mr. K.S.Banyal had submitted that even if the petitioner may not have been heard at the initial stage by the Settlement Collector, he was heard by the Divisional Commissioner, thus earlier 5 illegality, if any, in the order passed by the Settlement Collector stood removed. I do not agree with this submission of Sh.K.S.Banyal. If there is illegality at the initial stage, it cannot be ratified at the Appellate stage more particularly when it pertains to the violation of the principles of natural justice. Their Lordships of Hon’ble Supreme Court in ‘Institute of Chartered Accountants of India Vs. L.K.Ratna and others (1986), 4 SCC 537 have held as under :-. “But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There ware cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected an publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. “Not all the King’s horses and all the King’s men” can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blasé attitude towards the noble values of an earlier generation, a man’s professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding. 6 Accordingly, the respective findings of the Council that Ratna, Behl and Bhoopatkar are guilty of misconduct are vitiated and must be quashed. Consequently, the penalty imposed on each of them is also liable to be quashed”. The matter can be looked into from another angle. Assuming hypothetically that the petitioner had made a statement before the Naib Tehsildar (Settlement), Barsar on 8.11.2001, the same will not amount to waiver. The failure of natural justice makes a decision void. The breach of natural justice goes to the root of the decision making authority. The adjudicator body cannot decide a dispute without giving hearing to the concerned parties by bringing in the plea of implied waiver. The right to be heard being a basic facet of Article 14 of the Constitution of India cannot be waived. The procedure adopted by the authorities below in the present case has shocked the courts sense of justice since there is glaring breach of natural justice. In view of the above discussion, the writ petition is allowed, the orders passed by the Settlement Collector on 8.11.2001, Divisional Commissioner, Mandi dated 19.10.2005 and the order passed by the Financial Commissioner (Appeals) dated 6.11.2006 are quashed and set-aside. The Settlement Collector, Kangra Division at Dharamshala is directed to re-hear the application preferred by the respondent No.4. The respondent No.4 is directed to implead the petitioner as party-respondent in the application preferred by him for correction of dimensions of Khasra No.405 (old) situated in Tikka Bhakreri, Tappa Vani, Tehsil Barsar, District Hamirpur, H.P. The Settlement Collector will decide the application preferred by the respondent No.4 within a period of eight weeks from today. There shall be no order as to costs. April 29, 2008 ( Rajiv Sharma), J. GR