IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1365/2007 Reserved on: 20.5.2009 Decided on:19.6. 2009 Narain Dass and others. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioners : Mr. S.R. Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Ramesh Thakur, Asstt. Advocate General for respondents No.1 and 2. Mr. Romesh Verma, Advocate for respondents No.3 to 5 Rajiv Sharma, J. In sequel to the directions issued by this Court in RSA No. 316/ 1991, the Assistant Collector 1st Grade (Tehsildar), Shimla (Rural) passed the order on 12.10.1998. The petitioners filed an appeal before the Collector Sub Division, Shimla (Rural) against the order dated 12.10.1998. He dismissed the appeal on 22.11.2000. The petitioners thereafter filed a revision petition under section 17 of the Himachal Pradesh Land Revenue Act, 1953 before the Deputy Commissioner, Shimla. He allowed the revision on 22.5.2001. The respondents preferred a revision against the 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 order passed by the Deputy Commissioner before the Financial Commissioner (Appeals). He allowed the revision on 18.8.2005. Mr. S.R. Sharma, Advocate has strenuously argued that the Assistant Collector 1st Grade (Tehsildar) Shimla (Rural) had not heard the affected parties before the issuance of order dated 12.10.1998. He also argued that case No. 12/84 instituted on 23.6.1984 was dismissed in default by the Assistant Collector 1st Grade (Tehsildar), Shimla (Rural) on 16.7.1998. The application was preferred by the private respondents for the restoration of the case through their Advocate on 6.8.1998. He lastly contended that case No.12/84 was never restored and the subsequent orders passed by the Collector Sub Division, Shimla (Rural) dated 22.11.2000, the order passed by the Deputy Commissioner, Shimla on 22.5.2001 and the order passed by the Financial Commissioner (Appeals) dated 18.8.2005 are nullity. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the orders passed by the Financial Commissioner (Appeals) dated 18.8.2005. Mr. Romesh Verma, Advocate appearing on behalf of the private respondents has strenuously argued that the petitioners have acquiesced by associating themselves during the proceedings before the statutory authorities. In other words, his submission is that the parties have participated in the proceedings without ever raising objection concerning dismissal of the matter in default. I have heard the learned counsel for the parties and have perused the records carefully. The case No. 12/84 was instituted on 23.6.1984. A bare perusal of order sheet of the Assistant Collector 1st Grade (Tehsildar), Shimla (Rural) dated 16.7.1998 discloses that the case was dismissed in default. The 3 application was preferred for restoration of the case on 6.8.1998 through Sh. Surinder Steta, Advocate. Thereafter the case came up before the Assistant Collector 1st Grade (Tehsildar), Shimla (Rural) on 10.8.1998. He directed the matter to be listed on 18.9.1998 for considering the application dated 6.8.1998 preferred by the private respondents. The matter came up before him on 18.9.1998. The case was not restored on 18.9.1998. It is evident from the records that despite case No.12/84 being not resorted, the Assistant Collector 1st Grade (Tehsildar), Shimla (Rural) passed the orders on 12.10.1998. The petitioners preferred appeal before the Collector Sub Divisional, Shimla (Rural) on 3.2.1999 assailing the order dated 12.10.1998. He dismissed the appeal. The revision preferred by the petitioners against the orders passed by the Collector Sub Division, Shimla (Rural) was allowed by the Deputy Commissioner, District Shimla on 22.5.2001. Thereafter, the revision preferred by the private respondents was allowed by the Financial Commissioner (Appeals) on 18.8.2005. Since the case was dismissed by the Assistant Collector 1st Grade (Tehsildar), Shimla (Rural) in default on 16.7.1998, it was required to be restored before proceeding further with the matter. The Assistant Collector 1st Grade (Tehsildar), Shimla (Rural) has not passed any effective orders on the application preferred by the private respondents for the restoration of the case dated 6.8.1998. In other words, he had proceeded with the matter without restoring the same. In this case waiver cannot be attributed to the petitioners. The proceedings could not be continued without restoring the case. It was the duty cast upon the parties to bring to the notice of the Assistant Collector 1st Grade (Tehsildar), Shimla (Rural) to restore the case and then to proceed with the matter. The order passed by him without restoring the case dated 12.10.1998 was 4 nullity. The consequential orders of the Collector Sub Division, Shimla (Rural) dated 22.11.2000, order passed by the Deputy Commissioner, Shimla dated 22.5.2001 and the order passed by the Financial Commissioner (Appeals) dated 18.8.2005 are also nullity. In case the initial order is nullity, as is in the present case, the other consequential orders are also nullity. The proceedings after the dismissal of the case in default were not validly constituted. In view of the observations made hereinabove, the order passed by the Assistant Collector 1st Grade (Tehsildar) Shimla (Rural) dated 12.10.1998, the order passed by the Collector Sub Division, Shimla (Rural) dated 22.11.2000, order passed by the Deputy Commissioner, Shimla dated 22.5.2001 and the order passed by the Financial Commissioner (Appeals) dated 18.8.2005 are liable to be quashed and set aside. The Assistant Collector 1st Grade (Tehsildar) Shimla (Rural) is required to pass appropriate orders on the application preferred by the respondents dated 6.8.1998 seeking restoration of the case dismissed in default on 16.7.1998. The plea raised by Mr. S.R. Sharma that the parties were not heard at the time of passing of the order dated 12.10.1998 merits rejection since the matter is required to be decided afresh by the Assistant Collector 1st Grade (Tehsildar) Shimla (Rural). Accordingly, the petition is allowed. Annexures P-1 dated 12.10.1998, P-4 dated 22.11.2000, P-5 dated 22.5.2001 and P-6 dated 18.8.2005 are quashed and set aside. The Assistant Collector 1st Grade (Tehsildar) Shimla (Rural) is directed to decide the application filed by the private respondents dated 6.8.1998 seeking restoration of the case No.12/84. He shall decide the application after hearing both the parties. He shall pass a speaking order on the application within a period of four 5 weeks from today. The parties through their counsel are directed to make themselves available before the Assistant Collector 1st Grade (Tehsildar) Shimla (Rural) on 30.6.2009. There shall, however, be no order as to costs. The record after its perusal was returned to the learned Senior Additional Advocate General. 19.6. 2009 (Rajiv Sharma ), J. *awasthi*