IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.288/2002 Reserved on.31.5.2007 Decided on.10.7.2007 Malkiat Singh …Petitioner. Versus State of H.P. & others. …Respondents Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioner : Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate. For the respondents Mr. M.S. Chandel, Advocate General with Ms. Meenakashi Sharma, Dy. Advocate General for respondents No. 1 and 2. Mr. H.K. Bhardwaj, Advocate for respondents No. 3 & 4. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition which can be culled out from the pleadings of the parties are that the petitioner was owner in possession of land measuring 692 kanals 6 marlas situate in village Behdala, Post Office Behdala, Tehsil and District Una, H.P. The petitioner had sold land measuring 69 kanals 1 marla prior to the year 1971. The State Legislature had enacted the Act called ‘H.P. Ceiling on Land Holding Act, 1972’. The proceedings were taken under the H.P. Ceiling on Land Holding Act, 1972 and land measuring 341 kanals 4 marlas only of the petitioner was declared to be surplus and vested in the State of Himachal Pradesh. He made an application to the Collector, Una, 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 District Una, H.P. for recalling the order of vestment of the land on 28.8.1986. He had made a specific prayer for re-opening of case No. 78 of 1974. The Collector, Una made a reference to the Financial Commissioner (Revenue) for passing appropriate orders. The Financial Commissioner (Revenue) treated the application/representation as revision petition and by exercising the powers under section 20 (3) of the H.P. Ceiling on Land Holding Act, 1972 accepted the recommendations of the District Collector, Una and quashed the order dated 9.12.1972 passed by the Collector holding the land of the petitioner to be surplus. Consequently the matter was remanded back to the District collector, Una for decision afresh on 18.11.1988. The Collector, Una after receiving the report from the Tehsildar, Una passed the order on 24.2.1990 declaring that land owner did not come within the purview of the H.P. Ceiling on Land Holding Act, 1972 and had vacated the draft statement issued to the petitioner and amount of compensation already received by him was directed to be deposited back on or before 9.3.1990. In sequel to the orders passed by the Collector, Una dated 24.2.1990; petitioner deposited the amount of compensation on 12.3.1990. The Settlement Collector granted the requisite permission for correction of entries on 8.10.1995. The mutation was also attested in favour of the petitioner. It appears from the pleadings of the parties that the respondents No.3 to 6 had approached this Court by way of CWP No. 158/2000 against the order passed by the Collector dated 24.2.1990. During the pendency of CWP No. 158/2000, Under Secretary (Revenue) filed a short affidavit stating therein that the Government had made a reference to the Financial Commissioner (Appeals) for taking appropriate action in exercising the revisional jurisdiction pertaining to the impugned order. Consequently the Court had directed the respondent No.2 to decide the 3 revision within a period of three months vide order dated 3rd October, 2001 and the parties were directed to appear before him on 19.10.2001. The Financial Commissioner (Appeals) vide order dated 12.12.2001 had quashed and set aside the orders passed by the Collector dated 24.2.1990. The Financial Commissioner (Appeals) had declared land measuring 322.6 kanals as surplus. Mr. Bhupender Gupta, Sr. Advocate had strenuously argued that the order passed by the Financial Commissioner (Appeals) dated 12.12.2001 is without jurisdiction. Mr. Gupta also contended that the order was passed by the Collector, Una on 24.2.1990 and the same could not be set aside after a period of more than 11 years. He further contended that the word ‘any time’ used in section 20 (3) of the H.P. Ceiling on Land Holding Act, 1972 connotes that the same has to be exercised within a reasonable time. The learned Advocate General had supported the order dated 12.12.2001. Mr. H.K. Bhardwaj, Advocate appearing on behalf of respondents No. 3 and 4 had also supported the order dated 12.12.2001 and contended that the period of ten years cannot be termed unreasonable in the peculiar facts and circumstances of the case. I have heard the parties and perused the record. The scenario which emerges from the above noted facts is that the petitioner’s land measuring 341 kanals 13 marlas was declared surplus on 9.12.1974. An application was preferred before the Collector on 28.8.1986 for re-opening of the case bearing No. 78 of 1974. The Collector has made a reference to the Financial Commissioner. The Financial Commissioner accepted the reference made by the Collector and quashed and set aside the order of the District Collector dated 4 9.12.1974. The Collector had called the report from the field agency i.e. Tehsildar, Una and on the basis of his report passed order on 24.2.1990 by holding that the petitioner’s land was not covered under the provisions of the H.P. Ceiling on Land Holding Act, 1972. The petitioner was directed to deposit the compensation on or before 9.3.1990. He had deposited the same in the treasury. The necessary corrections were made in the classification of land and the mutation was also attested. Before the contentions of the learned Advocates are considered, it will be apt to quote section 20 of the H.P. Ceiling on Land Holding Act, 1972 which reads as under: “20. Appeal, review and revision.- (1) Any person aggrieved by any decision or order of the Collector may within sixty days from the date of the decision or order prefer an appeal to the Commissioner; Provided that the Commissioner may entertain the appeal after the expiry of the said period of sixty days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) Any person aggrieved by an order of the Commissioner made under sub-section (1) may, within ninety days from the date of order, file a revision petition before the Financial Commissioner so as to challenge the legality or propriety of such order and the Financial Commissioner may pass such order as he may deem fit. The order of the Financial Commissioner shall be final. (3) Notwithstanding anything contained in the foregoing sub- sections, the Financial Commissioner may at any time call for the record of any proceedings or order of any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order, and may pass such order in relation thereto as he may deem fit.” The Court during the course of hearing had directed the learned Advocate General to produce the record to enable it to understand how 5 the matter was taken up by the Financial Commissioner (Appeals). The Financial Commissioner (Appeals) had stated in his order dated 12.12.2001 that the communication sent by the Secretary (Revenue) was treated as information and the matter was taken up as ‘revision’ suo motu to determine the legality of the orders. The copy of the letter dated 12th September, 2000 on the basis of which the Financial Commissioner (Appeals) had exercised the suo motu powers under section 20 (3) of the H.P. Ceiling on Land Holding, 1972 is available on the record produced by the State and is reproduced below in its entirety: “No. Rev. B.E. (3)-6/2000 Government of Himachal Pradesh Department of Revenue. From F.C.-cum-Secretary (Revenue) to the Government of Himachal Pradesh. To The F.C. (Appeal) to the Govt. of Himachal Pradesh. Dated Shimla-171 002, the 12th September, 2000. Madam, I am directed to bring to your kind notice that a case No. 78/74 titled Malkiat Singh V/S State was decided by your Hon’ble Court on 18.11.1988 on a reference made by the Distt. Collector, Una in which the case was remanded to the Distt. Collector, Una to decide the ceiling proceedings afresh. The initial ceiling proceedings were conducted by the Collector under Ceiling Act, Una on 9.12.1974, in which the land owner, Malkiat Singh was allowed to held 316 Kanals 10 Marlas of land and 341 Kanals 4 Marlas was ordered to vest in the Govt. of H.P. Later the said Malkiat Singh made an application to the Distt. Collector, Una requesting therein that the Gair Mumkin area were required to be exempted from the vestment in to the State Govt. under the provisions of Ceiling Law and he was entitled to the said land. The Distt. Collector, Una made reference to 6 the F.C. (R and Appeal) on the said application, who set aside the order dated 9.12.74 and remanded the case to the Distt. Collector as mentioned above. Consequently, the Distt. Collector vide his order dated 24.2.1990 decided the case in which he allowed an area of 341-4 Kanals to Sh. Malkiat Singh which area was earlier vested into the State Govt. It is relevant to point out that the permission to review the previous order of the Collector was sought by the Collector only for 98-8 kanals whereas in his final order he allowed the exemption to the tune of 341-4 kanal. Besides, that the Ceiling Act does not provide any exemption for Gair Mumkin land from the operation of Ceiling Law, nor the said Collector cited any law or provision on which the exemption have been ordered in favour of said Malkiat Singh. In view of the above facts and circumstances the case needs serious reconsideration and your Honour is accordingly requested to call for the record of the case and examine the entire proceedings and pass the appropriate order under the circumstances as brought out herein above. Yours faithfully, Sd/- Under Secretary (Revenue) to the Government of Himachal Pradesh” It is thus evident that the aforesaid letter dated 12th September, 2000 has been treated as information for exercising the suo motu powers by the Financial Commissioner (Appeals). The Court had directed the Financial Commissioner (Appeals) to decide the revision within a period of three months vide order dated 3.10.2001 and the parties were directed to appear before the Financial Commissioner on 19.10.2001. The order was passed by the Collector, Una vide order dated 24.2.1990 which has been set aside by the Financial Commissioner (Appeals) on 12.12.2001. Sub Section (3) of Section 20 of the H.P. Ceiling 7 on Land Holding Act, 1972 provides that the Financial Commissioner may at any time call for the record of any proceedings or order of any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order, and may pass such order in relation thereto as he may deem fit. The only reason assigned by the Financial Commissioner for exercising the suo motu powers under sub- section (3) of section 20 of the H.P. Ceiling on Land Holding Act, 1972 after 11 years is that mere afflux of time could not come in his way to go into the illegalities and irregularities committed during the course of proceedings. The Court has now to consider what does the expression ‘at any time’ as mentioned in sub-section (3) of section 20 of the H.P. Ceiling on Land Holding Act, 1972 means. The Hon’ble Supreme Court has explained the term ‘at any time’ in Purshotam Lal Dhawan v. Diwan Chaman Lal and another, AIR 1961 SC 1371 as under: “Learned counsel for the appellant raised before us the following two points: (1) The revision to the Deputy Custodian- General was barred by time. (2) On the date when the allotment made to the appellant was cancelled, the Deputy Custodian-General had no power to cancel the allotment. To appreciate the first contention some relevant dates may be given. The order of the Additional Custodian was passed on August 25, 1952. The said order was communicated to the first respondent on September 11, 1952. The revision was filed on October 10, 1952. On the date of the filing of the revision only the Deputy Custodian was made a party but later on the Dhawan Group was impleaded in the revision in October, 1953. No application for excusing delay in preferring the revision against the said persons was made. It was contended before the Deputy Custodian-General that the revision petition was barred by time against the Dhawan Group but the Deputy Custodian-General rejected that argument and disposed of the petition on merits. 8 The first question for consideration is whether the revision was barred by limitation in so far as the Dhawan Group was concerned. Some of the relevant provisions regulating the power of revision of the Custodian-General may be noticed. Section 27 of the Act says, “The Custodian- General may at any time either on his own motion or on application made to him in this behalf call for the record of any proceedings in which any Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he things fit.” Under the proviso to that section, ‘the Custodian-General shall not pass an order under the sub section prejudicial to any person without giving him a reasonable opportunity of being heard.” In exercise of the powers conferred by S. 56 of the Act, the Central Government made the following rules among others. “Rule 31. (5) Any petition for revision when made to the Custodian-General shall ordinarily be made within sixty days of the date of the order sought to be revised. The petition shall be presented in person or through a legal practitioner or a recognized agent or may be sent by registered post. The petition shall be accompanied by a copy of the order sought to be revised and also by a copy of the original order unless the Revision Authority dispenses with the production of any such copy.” In contrast to the said provisions, R. 31(1) dealing with appeals says, “All appeals under the Act shall when they lie to the Custodian, be filed within thirty days of the date of the order appealed against and when they lie to the Custodian-General, within sixty days of such date.” Section 27 of the Act concerns a plenary power of revision on the Custodian-General and it empowers him to exercise his revisional powers either suo motu or on application made in that behalf at any time. The phrase “at any time” indicates that the power of the Custodian-General is uncontrolled by any time factor, but only by the scope of the Act within which he functions. The Central Government 9 cannot obviously make a rule unless S. 56 of the Act confers on it an express power to impose a time fetter on the Custodian-General’s power. We do not find any such power conferred on the Central Government under S. 56 of the Act. So the rule can only by read consistent with the power conferred on the Custodian-General under S. 27 of the Act. That must have been the reason why R. 31(5) does not prescribe any limitation on the Custodian-General to exercise suo motu his revisional power. Even in the case of an application for revision filed before him it is said that ordinarily it shall be filed within sixty days. The use of the word “ordinarily” indicates that the period of sixty days is not a period of limitation but only a rule of guidance for the petitioners as well as for the Custodian-General. It is within the discretion of the Custodian-General to entertain revision petitions after sixty days, but the rule indicates to him that the reasonable period for entertaining a revision is sixty days. The difference in the phraseology of sub-rules (1) and (5) of R. 31 of the Rules also leads to the same conclusion, for in the matter of appeals a period of limitation of thirty days when made to the Custodian and sixty days when it lies to the Custodian-General is prescribed whereas no such rigid period has been laid down in the case of a revision. If R. 31(5) is so read, its provisions will not conflict with those of S. 27 of the Act; and in that event they would be valid. The construction suggested by learned counsel for the appellant may lend scope to the argument that the rule is ultra vires the statute, for when a section says that there is no time limit for entertaining a revision, a rule cannot say that it shall be filed within a particular time. The argument that the principle underlying S. 5 of the Limitation Act applies to a petition for revision under Section 27 of the Act has no force. Section 5 of the Limitation Act applies to an appeal for which a period of limitation is prescribed and it empowers the court to admit the appeal after the period of limitation, if the applicant satisfied it that he has sufficient reason for not preferring the appeal within the prescribed time. The principle thereunder cannot be made applicable to a revision petition under S. 27 of the Act in 10 respect of which no period of limitation is prescribed. At the same time we must make it clear that the powers of the Custodian-General under S. 27, read with R. 31(5), are not intended to be exercised arbitrarily. Being a judicial power he shall exercise his discretion reasonably and it is for him to consider whether in a particular case he should entertain a revision beyond the period of sixty days stated in R. 31 (5). In this case we cannot say that the Custodian-General had acted perversely or unreasonably in entertaining the revision. The revision was filed in time. The Dhawan Group was made party at the subsequent stage as the Custodian-General rightly thought that any order he would make in favour of the appellant might prejudice the Dhawan Group. After giving them a reasonable opportunity of being heard within the meaning of the proviso to S. 27 (1) of the Act, he made the order. The Custodian-General, therefore, acted reasonably within his powers. This objection is overruled.” The apex Court in State of Gujarat V. Patel Raghav Natha and others, AIR 1969 SC 1297 has held as under: “The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading 11 sections 211 and 65 together it seeks to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late.” The High Court of Gujarat in Bhagwanji Bawanji Patel Vs. State of Gujarat and another, AIR 1971 Gujarat 64 has opined as under: “In the alternative, it was contended by Mr. Padia that even if for a moment, it was open to the State Government to revise its own order contained either in the letter of 23.8.1960 or the decision dated 10.10.1959 of the Commissioner of Rajkot Division in respect of the same land, such powers in revision have to be exercised within a reasonable time. It would be nearly more than seven years after the order was passed by the Commissioner that the State Government has chosen to issue notice in exercise of those powers under Section 211 of the Code and that such a long period is certainly unreasonable in the circumstances of the case. In support thereof, he invited a reference to the decision in the case of State of Gujarat v. Patel Raghav Nath, AIR 1969 SC 1297. The Supreme Court while considering the effect of the exercise of revisional jurisdiction of the State Government under Section 211 read with Section 65 of the Land Revenue Code, held that the powers of revision under section 211 of the Code must be exercised within a reasonable time. The relevant observation runs thus:- “It is true that there is no period of limitation prescribed under section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the 12 facts of the case and the nature of the order which is being revised. In that case, however, three months time was considered to be quite reasonable time within which the revisional powers should have been exercised. Now it is true that Section 211 does not lay down any restriction on the power of the State Government in exercising its powers of revision under Section 211 of the Code as so far no change was made by the Legislature therein in spite of the observations of the Full Bench of the Bombay high Court in the case of the State of Bombay v. Chhaganlal Gangaram Lavar, reported in 56 Bom LR 1084 at p. 1095 = (AIR 1955 Bom 1 at p.4) (FB). Those observations are as under: “……….it is rather extraordinary that there is no period of limitation prescribed for the exercise of the revisional powers of Government under Section 211. Therefore, the result may well be that after several years Government may interfere with a title or with titles and disturb the scrutiny of a tenure created a long time back. It is a matter for consideration whether the Legislature should not at least impose a time limit upon the exercise of revisional powers under section 211, because if an improper or illegal order is made by a subordinate revenue officer, surely Government would have notice of it within a reasonable time. It is also a matter for consideration for the Government whether apart from any legislative provision they should not impose upon themselves some limitation of time in the exercise of their powers under section 211.” Much though no such restriction has been placed by the State Government in the exercise of such powers in view of the decision of the Supreme Court in the case referred to above, we have to consider as to what can be considered reasonable time within which such a power under section 211 should be exercised by the State Government. Mr. Padia’s suggestion was that the reasonable period in the circumstances of this case should not be taken as more than three months or ninety days as contemplated under section 205 of the Land Revenue 13 Code. Section 205 speaks of the period within which an appeal must be brought. As provided therein, no appeal shall be brought after the expiration of sixty days if the decision or order complained of have been passed by an officer inferior in rank