IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 584 of 1992 Judgment Reserved on 22.3.2010 Date of Decision: 5th July, 2010 __________________________________________________________ Smt. Kala Devi and others. ….Petitioners. Versus Financial Commissioner & others. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. __________________________________________________________ For the Petitioners: Mr. K.D. Sood, Advocate. For the Respondents No. 1 to 3: Ms. Ruma Kaushik, Additional Advocate. For the Respondent No. 5: Mr. Bhupinder Gupta, Senior Advocate with Mr. Parneet Gupta, Advocate. For the Respondents No. 9: Mr. Ramakant Sharma, Advocate. & 10 __________________________________________________________ Dev Darshan Sud, J. The petitioners challenges the order of the Financial Commissioner dated 31.3.1992, dismissing appeal against the order of Deputy Commissioner affirming the order passed by Sub Divisional Officer (Civil)-cum -Collector, Hamirpur. This case has a chequered history. The predecessor-in-interest of the petitioners has been fighting the respondents since the year, 1975 and is now before this Court in writ proceedings. Vide Annexure P-1, order passed by Land Reforms Officer (Tehsildar), Hamirpur in case No. 1829/75 under Section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, the officer had allotted land to Sh. Ripu Daman Singh after considering the record of the case and issuing 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 notice to all the parties including Sh. Krishanu S/o Sh. Biru Ram. Thereafter Sh. Krishanu died and his son Prem Chand pursued the case and after him his widow and sons are now fighting this litigation. While passing the order Annexure P-1, the Land Reforms Officer noticed that Sh. Krishnu is recorded in some of the Khatunis as tenant awal and the tenants have recorded as tenant doem. He hold that the entries with respect to Sh. Krishanu as tenant awal are not correct and that they have no right whatsoever on the land, which is occupied by tenant doem and paying rent directly to the land owners. He then records: “Shri Prem Singh agreed on my explaining facts and legal position and suggested no khasra to be give to the land owners. But on my starting recording statements Shri Prem Singh, S/o Kishanu left without signing his statement on the advice of one Shri Partap Chand who has recently retired from service. It appears that this retired officials is not doing well even after his retirement.” 2. This portion of the order is being specifically reproduced as it would show the attitude of the predecessor-in-interest of the petitioner to the entire litigation. Being aggrieved by this order, Sh. Prem Chand, who was the successor in interest of Kishanu, preferred an appeal Annexure P-2 before the Sub Divisional Officer (Civil)-cum-Collector, Hamirpur, which appeal was dismissed on 17.1.1981 (Annexure-P2). The Collector on consideration of record holds that the land sold by the landlord could not be taken into consideration for purpose of calculating the area actually available to him as the sales had been effected before the promulgation of the Act prohibiting sales etc. The order records:- “I have given a careful consideration to the above arguments. It is quite clear that proceedings are under the Tenancy & Land Reforms Act & not the Ceiling Act & there is also no bar on transaction. Then the land sold 3 can’t be taken into consideration & if these are excluded then the land owned & self cultivated by respdt.No.1 does not exceed 3 acres and about 8 Kanals shown and other no details were given satisfactorily. Thus the order of the ld.DRO does not suffer from any infirmity and accordingly the appeal has no force & is accordingly dismissed.” 3. Not satisfied, the petitioner approached the Divisional Commissioner, Kangra/Mandi Divisions against the order of the SDO(C), Hamirpur,. The revision was dismissed on 20.6.1986 (Annexure P-4) holding:- “5. I have given a careful thought to the matter and after perusal of the record, I find that it isonly that land on which real tenants, tenants Doem, existed which has been held to be land under the tenancy of tenant Doem and not under the tenancy of tenants Abbal as tenant Abbal had nothing to so with the land as he had not been paying any rent therefore and the rent was actually being paid by tenant Doem directly to the owner. In my opinion, the ld. Land Reforms Officer has rightly ignored the entry in this respect existing in the revenue record in favour of tenant Abbal the petitioner. 6. The other point stressed by the ld. Counsel for the petitioner is that for resumption of land, the land sold by the respondent No. 1 in the year 1975 should be considered to be land under his cultivation and within the resumption limit of three acres. The ld. Counsel for the respondents has taken me through the calculations and has proved that this does not affect the rights of the respondents in respect of the land ordered to be resumed by the ld. Land Reforms Officer. The ld. Counsel further urged that the petition in view of the contention in the previous paragraph had nothing to do with this land and therefore his objection was not tenable. 4 7. I have carefully gone through the contention of the learned counsel for the petitioner and have considered the arguments of the ld.counsel for the respondents as well I hold that in respect of the land which has been held to be under the tenancy of tenant Doem, tenant Abbal Kishnu has been held earlier had neither a right of ownership nor a right of tenancy as tenant Doem had been paying rent directly to the landowner and relationship of tenant and landlord existed between tenant Doem and the landowner himself.” It requires no reiteration that the very point urged before the two revenue Authorities below was again urged in revision before the Divisional Commissioner. 4. Thereafter, another revision under Section 114 of the Act was carried to the Court of the Financial Commissioner. In this petition in addition to the points urged before the Commissioner, the petitioner herein agitated regarding the actual entitlement of holding of the respondent Ripu Daman; one another point was raised and that was that the petitioners were never given an opportunity to exercise their choice over the land to be retained by them in accordance with the Rules. The Financial Commissioner dismissed the revision vide order Annexure P-7, affirming the judgment of the revenue authorities. The petitioners now challenge the legality of this order on various grounds. On the aspect whether Sh. Ripu Daman Singh was entitled for a particular area of land, the factual aspect has been dealt with in detail by the Revenue Authorities on a detailed consideration of the record and this court will not convert itself into an appellate authority after three rounds of appellate/revisional determination unless there is any perversity in the findings, which I cannot find. 5. Learned counsel appearing for the petitioner urges that there is an illegality apparent on face of the record i.e. violation and non-compliance of sub 5 rule (2) of Rule 24 of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 which provides:- “24 (2) Where the selection of land made by the land- owner under rule 22 is not mutually agreed upon between the parties, the Land Reforms Officer, shall ask the tenant to exercise the right of selection of land, in writing within one month from the date of issue of notice under sub-rule (1). On receipt of the choice of the tenant within the said period of one month the Land Reforms Officer shall hear the parties, and after having satisfied himself that the land-owner is entitled to resume land under the provision of section 104 of the Act, shall pass orders regarding the land chosen to be retained by the tenant and also in respect of the land to be resumed by the land-owner for personal cultivation, within two months from the date of receipt of Form LR-V under sub-rule (1) of rule 21. He shall further order the extinguishment of right of tenancy on the land resumed by the land-owner and for handing over the possession of land to the land-owner by the tenant or tenants, as the case may be after the crop is harvested. Regarding the remaining land of the tenant or tenants, the Land Reforms Officer shall confer proprietary rights of such land upon the tenant or tenants and determine the amount payable by the tenant to the land-owner in respect of that land.” 6. Learned counsel appearing for the petitioners submits that this mandatory requirement has not been complied with. Learned counsel submits that the order of the Land Reforms Officer, Annexure P-1, is clear when it records that Shri Krishan did not give his consent. In these circumstances, it was mandatory to follow sub-rule-(2) of Rule 24. Learned counsel appearing for the petitioners submits that the Financial Commissioner as also the other Revenue Authorities were not correct in holding the entitlement of the land to Sh. Ripu 6 Daman Singh and in wrongly determining the area under the tenancy of late Sh. Krishnu. On the last two aspects all that I need say is that this factual aspect has been settled after a detailed examination of revenue record by four Revenue Authorities and this finding of fact can not be disturbed in Writ proceedings. So far as the compliance of 24 (2) is concerned, strictly speaking, this provision has not been complied with, but then the conduct of predecessor-in-interest of the petitioners also can not but be condemned. Two important aspects require to be noticed here. The factum of exercise of choice for retention of particular portion of land was raised for the first time in the grounds urged before the Financial Commissioner. But whether it was argued or not is not clear from the order. In such a situation, if such point has infact been urged and not decided, the only remedy is to approach the adjudicating Court/Authority and point out that a particular point was urged, which has not been considered and apply for a review of that order. This is settled law. 7. In the present case, a period of more than 35 years has elapsed and the parties are still litigating and fighting each other tooth and nail. In these circumstances I would not deem it proper to remand the matter to the Financial Commissioner for decision afresh in accordance with law. I am also aware about the principle that the doctrine of waiver can be invoked against the petitioner herein i.e. to say that despite the fact that they have been given certain rights, it would be open to them to waive them, unless such waiver adversely affects public policy. In these facts and circumstances of the present case, this Writ Petition is disposed of with the following directions: (a) The findings with respect to the area of tenancy for which the predecessor-in-interest of the petitioner has acquired proprietary rights is confirmed as held by the Revenue Authorities. 7 (b) The entitlement of Sh. Ripu Daman Singh as adjudicated by the Revenue Authorities is also not disturbed as these findings are based on facts properly determined by the Revenue Courts. (c) The Land Reforms Officer shall grant an opportunity to the petitioners in terms of Rule 24 (2), to exercise their choice. This Wirt Petition is disposed of. There shall be no others as to costs. July 05, 2010 (Dev Darshan Sud), (aks) Judge