IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.843/2006 Reserved on:24.4.2008 Decided on.7.5.2008 Satpal and others. …Petitioners. Versus Union of India and others …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioners : Mr. G.C. Gupta, Sr. Advocate with Ms. Benu Thakur, Advocate. For the respondents : Mr. Sandeep Sharma, Assistant solicitor General of India for respondent No.1. Mr. B.K. Malhotra, Advocate for respondents No.2 to 4. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the mutations No. 157 and 158 were attested on 23.6.1986. An appeal under section 14 of the Himachal Pradesh Land Revenue Act, 1953 was filed against the orders dated 23.6.1986 passed by the AC-IInd Grade before the Collector on 7.10.1992. The Collector dismissed the appeal on 30.9.1993 by observing that since the entries of mutations had been incorporated in the Jamabandi he had no jurisdiction to decide the matter. Consequently an application 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 seeking condonation of delay along with appeal was rejected. Respondents No.1 to 3 filed revision petition No. 25/1994 on 4th February, 1994 before the Financial Commissioner (Appeals). It appears from the record that amended revision petition was filed by respondents No.1 to 3 in the month of December, 1996. The amended revision petition was filed under section 114 (3) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 read with section 17 of the Himachal Pradesh Land Revenue Act, 1953 before the learned Financial Commissioner (Appeals). The learned Financial Commissioner (Appeals) accepted the revision petition on 7.8.2006 and mutations No. 157 and 158 were set aside. The area measuring 57-13 bighas in khasra Nos. 216 to 221, 225 and 229 in Muhal Surella Baruella and 87-19 bighas in khasra Nos. 222 to 224, 226 to 228, 230 and 231 was directed to be recorded in the ownership of the Union of India through custodian department and the possession with the Government of Himachal Pradesh. A challenge has been laid by the petitioners to the decision dated 7.8.2006. Mr. G.C. Gupta, Sr. Advocate had strongly argued that order dated 7.8.2006 is not sustainable in the eyes of law. He also contended that respondents No.1 to 3 had filed an appeal against the order of the Assistant Collector Grade-I, Shimla, which was rejected on 30th September 1993 and without challenging the order of the Collector, respondents No.1 to 3 had filed a revision petition before the Financial Commissioner (Appeals). In other words his submission was that the order passed by the Collector dated 3 30.9.1993 was required to be challenged as per the hierarchy of authorities provided in Himachal Pradesh Land Revenue Act, 1953 or Himachal Pradesh Tenancy and Land Reforms Act, 1972. He further contended that the orders passed by the Assistant Collector whereby two mutations bearing No. 157 and 158 attested were within his jurisdiction. Mr. B.K. Malhotra, Advocate had supported the order dated 7.8.2006. He had strongly contended that the Assistant Collector could not confer the proprietary rights on the petitioners in view of the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. He further contended that the Financial Commissioner (Appeals) had the jurisdiction to set aside the orders which according to him were nullity. I have heard the learned counsel for the parties and perused the record. The short question which has fallen for consideration before the Court is whether the revision petition No. 25/1994 instituted on 4.12.1994 was maintainable without assailing specifically the order dated 30.9.1993 passed by the Collector in case No. 17-VIII/92. It is clear from the pleadings of the parties that the orders whereby two mutations bearing No. 157 and 158 were attested by the Assistant Collector were specifically assailed before the Collector on 7.10.1992. The learned Collector did not condone the delay and consequently the appeal was rejected on 30.9.1993. He has also made observations that since the entries of two mutations were 4 incorporated in the jamabandis, he had no jurisdiction to adjudicate upon the appeal. The order dated 30.9.1993 reads thus: “This is an appeal u/s 14 of H.P. Land Revenue Act, against the order passed by the AC IInd grade Shimla on 28.6.86 in mutation No. 157 and dated 23.6.86 in mutation No. 158 in village Saruila- Baruila, Tehsil & Distt. Shimla (R). This appeal is time barred and the appellant has moved an application u/s 5 of Limitation Act read with section 151 CPC for condonation of delay. The arguments adduced by both the parties were heard. I have also gone through the contents of application as well as the record of the lower court. From the perusal of the lower court record it reveals that the entries of the above mutations have now been incorporated in the Jambandis. Therefore, the jurisdiction of this court is barred. As such the application for condonation of delay as well as appeal is rejected. The appellant is, however, free to raise the matter before the court of competent jurisdiction. Announced in the open court. File be consigned after due completion to the record room.” It is evident that initially a revision petition was preferred before the Financial Commissioner (Appeals) under section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, but later on by way of an amendment, the revision petition was filed by incorporating section 17 of the Himachal Pradesh Land Revenue Act, 1953. To consider the submission of Mr. G.C. Gupta, Sr. Advocate that the revision petition preferred before the Financial 5 Commissioner (Appeals) was not maintainable, the Court has to consider few provisions of the Himachal Pradesh Land Revenue Act, 1953 and the Himachal Pradesh Tenancy and Land Reforms Act, 1972. Mr. Gupta had strongly argued that the order passed by the Collector on 30.9.1993 was required to be assailed before the Commissioner since according to him, the order passed by the Assistant Commissioner has merged in the order passed by the Collector on 30.9.1993. The mutations have been attested by the Assistant Collector whereby proprietary rights have been conferred upon the petitioners as per the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The appeal has to be preferred against the order of the Collector under section 14 of the Himachal Pradesh Land Revenue Act, 1953. Sections 14, 15 and 17 of the Himachal Pradesh Land Revenue Act, 1953 read thus: “14. Appeals.- Save as otherwise provided by this Act, an appeal shall lie from original or appellate order of a Revenue Officer as follows, namely:- (a) to the Collector when the order is made by an Assistant Collector of either grade; (b) to the Commissioner when the order is made by a Collector; (c) to the Financial Commissioner when the order is made by a Commissioner; provided that- (i) when an original order is confirmed on first appeal, a further appeal shall not lie; 6 (ii) when any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner further appeal, if any, to him shall be final. 15. Limitation for Appeals- Save as otherwise provided by this Act, the period of limitation for an appeal under the foregoing section shall run from the date of the order appealed against, and shall be as follows, that is to say:- (a) when the appeal lies to the Collector – thirty days; (b) when the appeal lies to the Commissioner – sixty days (c) when the appeal lies to the Financial Commissioner – ninety days. 17. Power to call for, examine and revise proceedings of Revenue Officers.- (1) The Financial Commissioner may at any time call for the record of any case pending before (or disposed of by) only Revenue Officer subordinate to him. (2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer under his control. (3) If any case in which a Commissioner or Collector has called for a record he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Financial Commissioner. (4) The Financial Commissioner may in any case called for by himself under sub-section (1) or reported to him under sub-section (3) pass such order as he things fit. Provided that he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate Revenue Officer and effecting any question of right between private persons without 7 giving those persons an opportunity being heard.” Since the composite revision petition has been filed by respondents No.1 to 3 before the Financial Commissioner (Appeals) i.e. section 17 of the Himachal Pradesh Land Revenue Act, 1953 and section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, it will be appropriate to take note of sections 65 and 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 as well. Sections 65 and 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 read thus: “65. Power to call for, examine and revise proceedings of Revenue Officers.- (1) The Financial Commissioner may at any time call for the record of any case pending before or disposed of by any Revenue Officer or Revenue Court subordinate to him. (2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court under his control. (3) If any case in which a Commissioner or Collector has called for a record he is of opinion that the proceedings taken or order or decree made should be modified or reversed, he shall submit the case with his opinion thereon on the case for the orders of the Financial Commissioner. (4) If, after examination a record called for by himself under sub-section (1) or submitted to him under sub- section (3), the Financial Commissioner is of opinion that it is inexpedient to interfere with the proceedings or the order or decree, he shall pass an order accordingly. 8 (5) If, after examining the record, the Financial Commissioner is of the opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the high Court in the exercise of its revisional jurisdiction may, under the law for the time being in force, interfere with the proceedings or an order or decree of a Civil Court, he shall fix a day for hearing the case and may on that or any subsequent day to which he may adjourn the hearing or otherwise he may appoint in this behalf, pass such order as he things fit in the case. (6) Except when the Financial Commissioner fixes under sub-section (5) a day for hearing the case, no party has any right to be heard before the Financial Commissioner when exercising his powers under this section.” 114. Appeal and revision. – (1) Any person aggrieved by an order made by the Land Reforms Officer may, within thirty days from the date of the order, prefer an appeal to the Collector, in such form and manner, as may be prescribed: Provided that the Collector may entertain the appeal after the expiry of the said period of thirty 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 Collector may, within sixty days from the date of the order, prefer an appeal to the Commissioner in such form and manner, as may be prescribed. Provided that the Commissioner may entertain the appeal after the expiry of the said period of six days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) With respect to all the matters dealt with under this Chapter, the Financial Commissioner shall have 9 the same power to call for, examine and revise the proceedings of the Land Reforms Officer, or the Collector or the Commissioner as provided in section 65 of this Act.” Respondents No.1 to 3 had filed an appeal under section 14 of the Himachal Pradesh Land Revenue Act, 1953 before the Collector as is evident from the order dated 30.9.1993 which stood rejected. Respondents No.1 to 3 were required to assail the same before the Commissioner within a period of 60 days after the order was passed by the Collector on 30.9.1993. Respondents No.1 to 3 could not bypass the Commissioner by approaching the Financial Commissioner (Appeals) directly against the order of the Assistant Collector. The order passed by the Assistant Collector had merged in the order of the Collector and the same was required to be specifically assailed before the Commissioner within the prescribed period. Respondents No.1 to 3 as discussed hereinabove had initially filed revision petition under section 114 (3) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, but subsequently a composite amended revision petition under section 114 (3) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and under section 17 of the Himachal Pradesh Land Revenue Act, 1953 was filed. Section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 dealing with the provisions of appeal and revision specifically provides that any person aggrieved by an order made by the Land Reforms Officer may, within 30 days from the date of the order, prefer an appeal to the Collector, in such form and manner, as may be prescribed. Thereafter any person aggrieved by the order of 10 the Collector within 60 days from the date of the order may prefer an appeal to the Commissioner in the manner prescribed. The Financial Commissioner (Appeals) has been vested with the powers to call for, examine and revise the proceedings of the Land Revenue Officer or the Collector or the Commissioner as provided in section 65 of the Act. Thus, the order passed by the Assistant Collector on 23.6.1986 was required to be assailed before the Collector within 60 days from the order passed by the Assistant Collector. However, respondents No.1 to 3 had chosen to assail the order of the Assistant Collector before the Collector under section 14 of the Himachal Pradesh Land Revenue Act, 1953. The appeal being time barred was dismissed by the Collector on 30.9.1993. The order dated 30.9.1993 was required to be assailed before the Commissioner within the prescribed period. This has not been done by respondents No.1 to 3. Once respondents No.1 to 3 had chosen to assail order of the Assistant Collector Grade-I, they cannot be permitted to state that they had chosen a wrong forum. Since the appeal was preferred under section 14 of the Himachal Pradesh Land Revenue Act, 1953 against the order of the Collector that is why respondents No.1 to 3 had filed an amended revision petition under section 114 (3) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 read with section 17 of the Himachal Pradesh Land Revenue Act. The position which emerges from the above stated facts is that if the order was passed by the Assistant Collector under the Himachal Pradesh Tenancy and Land Reforms Act, 1972 then the 11 same was to be assailed in the hierarchy provided under section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. If the mutations were challenged under section 14 of the Himachal Pradesh Land Revenue Act, 1953 then the hierarchy of authorities provided therein were to be approached. What has happened is that the Financial Commissioner (Appeals) has passed the order on 7.7.2006 whereby two mutations attested in favour of the petitioners have been set aside and simultaneously the Financial Commissioner (Appeals) has directed that the revenue entries be also altered and be recorded in the ownership of the Union of India through Custodian Department and the possession of the Government of Himachal Pradesh. The Financial Commissioner (Appeals) gets his jurisdiction from two independent Acts i.e. Himachal Pradesh Land Revenue Act, 1953 and the Himachal Pradesh Tenancy and Land Reforms Act, 1972. In the present case he had invoked the jurisdiction under both the Acts which according to this Court was not permissible. It appears that two mutations have been set aside whereby the proprietary rights were conferred upon the petitioners under section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and the mutations attested in favour of the petitioners recorded in the revenue record were set aside while exercising the jurisdiction under the Himachal Pradesh Land Revenue Act, 1953. The Financial Commissioner (Appeals) has not discussed and taken note of order dated 30.9.1993 which was passed by the competent authority. Despite the order passed by the Financial Commissioner (Appeals) on 7.7.2006, the order dated 12 30.9.1993 passed by the Collector remains on the record. In fact, the orders of the Assistant Collector dated 23.6.1986 have merged in the order passed by the Collector. Without assailing the order dated 30.9.1993 specifically, the respondents could not bypass the hierarchy provided under the Himachal Pradesh Land Revenue Act, 1953 and the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The best course available to respondents No.1 to 3 was to assail the order dated 30.9.1993 before the Commissioner within the time prescribed under section 15 of the Himachal Pradesh Land Revenue Act, 1953 and if the orders of the Assistant Collector dated 23.6.1986 and 28.6.1986 were to be assailed under the Himachal Pradesh Tenancy and Land Reforms Act, 1972, the same was to be done before the Collector under section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 within limitation and thereafter an appeal could be preferred before the Commissioner. The action of respondents No.1 to 3 by directly approaching the Financial Commissioner (Appeals) by a composite petition has also divested the petitioners to take recourse to remedies provided under the Himachal Pradesh Land Revenue Act, 1953 and the Himachal Pradesh Tenancy and Land Reforms Act, 1972. It is obvious from the order dated 7.8.2006 that the petitioners had raised a specific plea that the order of the Collector was required to be assailed before the Commissioner and respondents No.1 to 3 could approach the Financial Commissioner by way of revision. An averment has also been made in revision petition preferred by respondents No.1 to 3 in para 1 (H) that the appeal was 13 preferred against the order of the Collector Ist Grade, Shimla dated 23.6.1986 under the Himachal Pradesh Land Revenue Act, 1953. This important issue having direct bearing on the maintainability of the revision itself has been brushed aside by the learned Financial Commissioner (Appeals) in his order dated 7.8.2006. Since the plea with regard to the maintainability of the revision before the Financial Commissioner (Appeals) was raised, the same should have been decided by way of preliminary issue. The learned Financial Commissioner (Appeals) has not at all considered the effect of the order passed by the Collector on 30.9.1993. The Court is of the considered opinion that the Financial Commissioner could not ignore the order passed by the Collector on 30.9.1993. It is by now well settled that no order can be ignored altogether unless finding is recorded that it is illegal, void or not in consonance with law. Their Lordships of the Hon’ble Supreme Court have reiterated this principle in Pune Municipal Corporation Versus State of Maharashtra and others, 2007 (5) SCC 211 as under: “It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states: "The principle must be equally true even where the 'brand of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court". He further states: "The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may 14 refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another". In Smith v. East Elloe Rural District Council, 1956 AC 736 at 769 : (1956) 1 All ER 855, Lord Redeliffe had an occasion to consider a similar argument (that the order was null and void). Negativing the contention, the Law Lord made the following off-quoted observations: "(T)his argument is in reality a play on the meaning of the word 'nullity'. An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders". (emphasis supplied) Mr. B.K. Malhotra, Advocate had also argued that assuming that respondents could not file the revision petition, still the Financial Commissioner (Appeals) could exercise the jurisdiction on the basis of section 17 of the Himachal Pradesh Land Revenue Act, 1953 and section 114 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 suo motu. Since the court is of the firm opinion that the revision was not maintainable as the orders passed by the Assistant Collector were to be assailed only in the manner prescribed under the Himachal Pradesh Tenancy and Land Reforms Act, 1972, a 15 fortiori suo motu power could not be exercised by the Financial Commissioner (Appeals). Even if the suo motu power is to be exercised, it has to be stated so. Their Lordships of the Hon’ble Supreme Court in M/s D.N. Roy and S.K. Banerjee and others versus The State of Bihar and others 1970 (3) SCC 119 have held as under: “It is true that the order in question also refers to "all other powers enabling in this behalf". But in its return to the writ petition the Central Government did not plead that the impugned order was passed in exercise of its suo moto powers. We agree that if the exercise of a power can be traced to an existing power even though that power was not purported to have been exercised under certain circumstances, the exercise of the power can be upheld on the strength of an undisclosed but undoubted power. But in this case the difficulty is that at no stage the Central Government intimated to the appellant that it was exercising its suo moto power. At all stages it purported to act under Rules 54 and 56 of the Mineral Concession Rules, 1960. If the Central Government wanted to exercise its suo motu power it should have intimated that fact as well as the grounds on which it proposed to exercise that power to the appellant and given him an opportunity to show cause against the exercise of suo motu power as well as against the grounds on which it wanted to exercise its power. Quite clearly the Central Government had not given him that opportunity. The High Court thought that as the Central Government had not only intimated to the appellant the grounds mentioned in the application made by the 5th respondent but also the comments of the State Government, the appellant had adequate opportunity to put forward his case. This conclusion in our judgment is untenable. At