IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 745/2003 Reserved on: 6.6.2008 Decided on: 11.7.2008 Chet Ram and another. …Petitioners. Versus Ram Lal and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. no For the petitioners : Mr. Bimal Gupta, Advocate. For the respondents : Mr. J.L. Bhardwaj, Advocate for respondents No.1 to 3. Mr. G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate for respondents No. 4 to 7. Mr. Rajinder Dogra, Addl. Advocate General for respondent No.8. Rajiv Sharma, J. The petitioners have challenged the order passed by the Financial Commissioner (Appeals) dated 2.7.2003. Mr. Bimal Gupta, Advocate had strenuously argued that the order passed by the Financial Commissioner (Appeals) dated 2.7.2003 is not sustainable in the eyes of law. He also argued that the predecessor-in- 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 interest of the petitioners had in fact preferred an application for the correction of the revenue entries which was allowed on 31.5.1979. Mr. Rajinder Dorgra, Additional Advocate General, Mr. G.D. Verma, Senior Advocate and Mr. J.L. Bhardwaj, Advocate appearing on behalf of the respondents had strenuously argued that in sum and substance the application preferred by the predecessor-in-interest of the petitioners was not maintainable for the correction of khasra Girdawari. They also contended that if the petitioners predecessor-in-interest was in any manner aggrieved by the revenue entries recorded in Khasra Girdawari, they could have filed a suit in the competent court of jurisdiction. They further contended that in case the application of the predecessor-in- interest of the petitioners was to confer proprietary rights upon him by changing the Girdawari in that eventuality, he had to take recourse under the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. I have heard the learned counsel for the parties and have also perused the pleadings carefully. Mr. Bimal Gupta, Advocate has drawn the attention of the Court to section 37 of the Himachal Pradesh Land Revenue Act, 1953 to substantiate that the application for correction of Khasra Girdawari could be filed under the Himachal Pradesh Land Revenue Act, 1953 alone. The learned Additional Advocate General and Mr. G.D. Verma, Senior Advocate contested this plea of Mr. Bimal Gupta and they argued that if the predecessor-in-interest of the petitioners in any manner was aggrieved by the revenue entries in the Khasra Girdawari, he was required to take recourse to section 46 of the Himachal Pradesh Land Revenue Act, 1953. It is in this backdrop that the Court has to consider the rival submissions of the learned counsel for the parties. 3 The fora chosen by the petitioner from time to time: The sum and substance of the application filed before the Assistant Collector 2nd Grade (Naib Tehsildar) on 13th November, 1978 was that the predecessor-in-interest of the petitioners was in possession of the suit land for the last 7-8 years on payment of Batai i.e. ½ share. It was on that basis that he wanted that the entry be made in his favour. The Assistant Collector 2nd Grade returned the findings on 31st May, 1979 that Budhi Ram, predecessor-in-interest of the petitioners, was in possession of the land for the last 7-8 years on payment of Galla Batai to Smt. Dawarku. He accordingly directed that the entries be made in the name of Budhi Ram as tenant of Smt. Dawarkoo in khasra No. 177, 219 kitas 2, total measuring 2 bighas 8 biswas situated at Mauza Tepra, Pargana Bahadurpur on payment of Batai of 1/4th share. Smt. Dawarku preferred an appeal against the order dated 31.5.1979. The Collector Sadar Sub Division, Bialspur returned a specific finding that there was no proof on record to show that there was relationship of landlord and tenant between Smt. Dawarku and Sh. Budhi Ram. Sh. Budhi Ram had also admitted during these proceedings that he had no receipt of rent paid by him to Smt. Dawarku. The Collector Sadar Sub Division, Bilaspur held that Smt. Dawarku was in possession of the land in dispute and the proper remedy for the predecessor-in-interest of the petitioners Sh. Budhi Ram was to file a suit for declaration in the civil court. Sh. Budhi Ram preferred an appeal against the order dated 11.9.1980 before the Commissioner Mandi. He remanded the matter back to Sub Divisional Collector, Bilaspur for de novo inquiry on 20.4.1982. On remand, a specific issue was framed, as noticed above, by the Collector Sadar Sub Division, Bilaspur to the effect whether Sh. Budhi Ram was in fact in possession of land in dispute for the last 8-9 years. The issue was decided against Sh. Budhi Ram. The 4 application for correction of Girdawari was dismissed by the Collector Sadar Sub Division, Bilaspur on 31.10.1985. The Collector Bilaspur District came to the conclusion that the appeal was maintainable before the learned Divisional Commissioner vide order dated 9.3.1989. The Commissioner Mandi Division, Mandi vide order dated 11.3.1997 came to the conclusion that primarily the dispute was with regard to conferment of proprietary rights and the appeal was to be preferred under section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 before the Collector. The District Collector, Bilaspur was approached by Sh. Budhi Ram. The application preferred by him was rejected by the District Collector on 30.9.2000. The petitioners filed an appeal against the order of the District Collector dated 30.9.2000 before the Commissioner (Revenue) on 21.10.2000. The learned Commissioner (Revenue) recorded the findings that the learned Commissioner had passed the earlier order on 11.3.1997 while the application before the District Collector was filed by the petitioners on 15.9.1999. The predecessor-in- interest of the petitioners was not able to explain the delay. He further held in order dated 26.9.2002 that if the petitioners, in any manner, were aggrieved by the order of the learned Divisional Commissioner Mandi Division dated 11.3.1997, they should have taken appropriate action under the law. It will be apt at this stage to take note of the provisions under which the appeal was preferred by the petitioners against the order of the District Collector dated 30.9.2000. This appeal has wrongly been filed by the petitioners under section 114 (2) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. If the petitioners had moved an application for correction of Khasra Girdawari under the provisions of the Himachal Pradesh Land Revenue Act, 1953, the appeal under section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 was not 5 maintainable before the Commissioner (Revenue). There is a detailed procedure provided for preferring appeals under the Himachal Pradesh Land Revenue Act, 1953. It is evident from the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 that if any person is aggrieved by the orders of the Land Reforms Officer, he can file appeal before the Collector. There is a further provision of appeal to the Commissioner under section 114 of the Himachal Pradesh Tenancy and Land Reforms Act. The appeal preferred by the petitioners under section 114 (2) read with section 65 of the Himachal Pradesh Tenancy and Land Reforms Act,1972 against the order of the District Collector dated 30.9.2000 was not maintainable. Moreover, as observed by the Commissioner (Revenue), the petitioners had not explained the delay in approaching the Collector after the orders had been passed by the Commissioner on 11.3.1997. The petitioners in fact had also filed revision against this order of Commissioner (Revenue) dated 26.9.2002 before the Financial Commissioner (Appeals) under section 114 (3) read with section 65 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The ramifications of choosing of different fora under two distinct provisions of law i.e. Himachal Pradesh Land Revenue Act, 1953 and the Himachal Pradesh Tenancy and Land Reforms Act, 1972 for the purpose of filing the appeals. The petitioners, as noticed above, have filed an application for correction of Khasra Girdawari which stand has been reiterated by the petitioners during the course of the hearing of this petition. The application was allowed on 31st May, 1979. The appeal was preferred by Smt. Dawarku against this order which was allowed by the Sub Divisional Collector, Bilaspur on 11.9.1980. In further appeal the matter was remanded back on 20.4.1982. The Collector Sadar Sub Division, Bilaspur rejected the application for carrying out the necessary correction of Khasra 6 Girdawari on 31.10.1985. The Collector, Bilaspur has not entertained the appeal and had permitted the petitioners to file the appeal before the competent authority i.e. Divisional Commissioner. The Divisional Commissioner, as noticed above, on 11.3.1997 came to a conclusion that the petitioners ought to have taken recourse to section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 since according to the petitioners, they had only filed application for correction of revenue entries, they should have assailed this order of Commissioner Mandi Division dated 11.3.1997 in appropriate forum. The petitioners instead of assailing this order dated 11.3.1997 preferred an application for restoration and revival of the proceedings before the Collector on 15.9.1999 though the Commissioner Mandi Division had passed the order on 11.3.1997. The Collector rejected the application on 30.9.2000. The petitioners, as observed above, instead of following the hierarchy provided under the Himachal Pradesh Land Revenue Act, 1953 or taking recourse to section 46 thereof, filed appeal under section 114 (2) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 against the order passed by the District Collector on 30.9.2000. The Court is of the firm opinion that this appeal under section 114 (2) was not maintainable at all since the petitioners had been seeking only the correction of revenue entries. The subsequent filing of the revision before the Financial Commissioner (Appeals) under the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 was not maintainable. It is strange case where the petitioners had gone to different fora by invoking jurisdiction under different acts i.e. the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and the Himachal Pradesh Land Revenue Act, 1953. The best course available under the facts and circumstances of the case to the petitioners was to take recourse only to the provisions of the Himachal 7 Pradesh Land Revenue Act, 1953 once the application has been rejected by the Collector Sadar Sub Division, Bilaspur on 31.10.1985. In fact, he has taken recourse to section 14 of the Himachal Pradesh Land Revenue Act, 1953 in filing the appeal before the Collector Bilaspur and Commissioner Mandi on 19.11.1986 and 1.4.1989. It was only after the order was passed by the Commissioner Mandi Division on 11.3.1997 that the petitioners have changed their course for filing the appeal in a wrong forum under the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The best available course to the petitioners was to assail the order of the Commissioner Mandi Division before the Financial Commissioner (Appeals) instead of submitting an application for revival of the proceedings which have been rightly rejected by the District Collector on 30.9.2000. It is reiterated that there was no occasion to the petitioner to take recourse to file appeal and revision under the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The plea of Mr. Bimal Gupta, Advocate that recourse to Himachal Pradesh Tenancy and Land Reforms Act, 1972 has been taken as per the orders of the Commissioner Mandi Division dated 11.3.1997 is to be rejected. It was for the petitioner to seek proper legal advice the manner in which the matter had to proceed after the order was passed by the Commissioner Mandi Division Mandi dated 11.3.1997. The appeal has been preferred by the petitioners before the Commissioner Mandi under section 14 of the Himachal Pradesh Land Revenue Act, 1953. The further appeal/revision was to be filed against this order under the provisions of the Himachal Pradesh Land Revenue Act, 1953. The petitioners strangely enough had moved an application for restoration and revival before the Collector on 15.9.1999. The proceedings initiated under the Himachal Pradesh Land Revenue Act, 1953 could not be converted under the 8 provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. These are two distinct Acts and operate in different areas. The proceedings in the present case as far as under the Himachal Pradesh Land Revenue Act, 1953 are concerned, were initiated as per the order dated 31.5.1979 and culminated when the order was passed by the Commissioner Mandi Division Mandi under section 14 of the of the Himachal Pradesh Land Revenue Act, 1953 on 11.3.1997. The petitioners have not taken any steps for setting aside this order dated 11.3.1997 under the Himachal Pradesh Land Revenue Act, 1953. He had filed the appeal under section 114 (2) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 against the order of the District Collector dated 30.9.2000 and thereafter the revision has also been filed against the order of the Commissioner (Revenue) dated 26.9.2002 under the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The matter can be viewed from another angle as well. The petitioners’ predecessor-in-interest Sh. Budhi Ram had preferred an application for correction of khasra girdawari. The effect of correction in the khasra girdawari would have been that the petitioners’ predecessor-in- interest was to be conferred with the proprietary rights. The petitioners’ predecessor-in-interest has tried to achieve something indirectly which he could not achieve directly. The proprietary rights are to be conferred upon those tenants who are paying rent to the landlords under section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The application of the predecessor-in-interest of the petitioners for carrying out correction in khasra girdawari was in fact for getting the proprietary rights bestowed upon him. This is not permissible under the law. The proper remedy available to him was to take recourse to the Himachal Pradesh 9 Tenancy and Land Reforms Act, 1972. The submission of Mr. Bimal Gupta that the application was filed for simple correction of revenue entry which according to him could be entertained under section 37 of the Himachal Pradesh Land Revenue Act, 1953 has been raised merely to be rejected. The effect of allowing this application would definitely was to confer proprietary rights upon the predecessor-in-interest of the petitioners, which was not permissible under the law. The predecessor-in- interest of the petitioners, if aggrieved, should have taken recourse to section 47 of the Himachal Pradesh Land Revenue Act, 1953. The Sub Divisional Collector Bilaspur in fact in order dated 11.9.1980 after holding that the predecessor-in-interest of the petitioner was not tenant under Smt. Dawarkoo had observed that the petitioners had to take recourse by filing a suit for declaration in the civil court. The remedy of appeal being statutory in nature is always required to be availed in an appropriate forum provided under the law. The party cannot choose the forum for filing appeal/revision as per its convenience. Once the party chooses the course under one particular Act, the same has to be carried to its logical end and the party cannot be permitted to change the forum midway under distinct Act. Accordingly, in view of the discussion made hereinabove, it is held that the application for correction of khasra girdawari preferred by the predecessor-in-interest of the petitioners was not maintainable in the present form, the effect of which was to confer the proprietary rights upon him without taking recourse to the remedy provided under the Himachal Pradesh Tenancy and Land Reforms Act, 1972. There is neither any jurisdictional error nor any procedural irregularity in the orders passed by the Financial Commissioner (Appeals) dated 2.7.2003. 10 Consequently, there is no merit in the writ petition and the same is dismissed. There shall be no order as to costs. July 11, 2008 (Rajiv Sharma ), J. *awasthi*