Ram Kishan Dass vs Financial Commissioner, Haryana

I.S. Tiwana, J. (Oral)

In this petition under Article 226 of the Constitution of India, the following facts are not in dispute.

On September 6, 1968, the Assistant Collector 2nd Grade, Sonepat, sanctioned mutation No. 1945, whereby certain Khasra numbers came to be recorded as Shamilat Deh in the revenue record. This order, however, did not include Khasra Nos. 164 and 165, parts of which were admittedly in the possession of the petitioner. Later as per the allegations of the petitioner, the Patwari of the Halqa, with a view to create some mischief for him, got these two Khasra numbers incorporated in that order dated September 6, 1968. On a complaint by him to the Assistant Collector 2nd Grade, the mischief made by the Patwari was redeemed and these two Khasra numbers were excluded from that order. At a later stage the Assistant Collector who succeeded the one who had sanctioned mutation No.1945, formed the view that the above noted two Khasra numbers alongwith some more land had wrongly not been included in the ownership of the Panchayat as Shamilat Deh and thus made a move to the Collector under section 15 of the Punjab Land Revenue Act (for short the Act) to obtain the requisite sanction for reviewing the order dated September 6, 1968. The Collector is stated to have granted this sanction on August 26, 1970. When the Assistant Collector took up the matter for reviewing the order dated September, 6, 1968, he failed to make any final order in that regard but observed in his order dated May 3, 1971 that he was making a reference to the Collector to know as to whether the above noted two Khasra numbers did belong to the Gram Panchayat or were Shamilat Deh land or not. Before he could hear anything in this regard from the Collector, the Sarpanch of the Gram Panchayat preferred an appeal to the Collector against the order of the Assistant Collector dated May 3, 1971. Before the Collector an objection was raised on behalf of the petitioner that the order of the Assistant Collector being one refusing to review the order dated September 6, 1968, no appeal against the same was competent in terms of section 15(3) of the Act. This objection on behalf of the petitioner, however, was overruled and the Collector while holding that Khasra Nos. 164 and 165 had not wrongly been mutated in favour of the Panchayat on September 6, 1968, ordered that these be now so mutated. The petitioner remained unsuccessful even in appeal and revision against this order. He now impugns these three latter orders passed by the Collector, the Commissioner and the Financial Commissioner, dated October 27, 1972, June 29, 1973 and October 8, 1975 (Annexures P.1, P.2 and P.3) respectively, on a wide variety of grounds.

The primary objection of this learned counsel is that firstly the Assistant Collector 2nd Grade had passed no final order on May 3, 1971; no appeal or revision against the same was competent and secondly, if at all order dated May 3, 1971 passed by him was to be treated as a final order, then vide that order he had specifically declined to mutate Khasra Nos. 164 and 165 in favour of the Panchayat at least till he received a reply to the reference he had made to the Collector and thus that order being an order refusing to review the earlier order dated September 6, 1968, was not appealable in terms of section 15(3) of the Act. I find considerable merit in this stand of the learned counsel.

Normally I would have been reluctant to interfere with these orders in view of the settled legal position that the mutation orders do not decide the questions of title, but I find that the impugned orders Annexures P.1 to P.3 are patently illegal and have thus necessarily to be quashed. Order of the Assistant Collector dated May 3, 1971 could not possibly be taken as the final order. Further, he had specifically said in that order that till he received a reply from the Collector to the reference made by him. Khasra Nos. 164 and 165 would remain excluded from the Shamilat Deh land. This order, if at all is to be taken as a final order, amounted to refusal to review the earlier order dated September 6, 1968. Such an order is not appealable in view of section 15(3) of the Act. However, before he could finally decide the matter as to whether those two Khasra numbers were to be mutated in favour of the Panchayat or not, the Sarpanch of the Gram Panchayat took the matter in appeal. Thus the impugned orders Annexures P.1 to P.3 being not against any final order passed by the Assistant Collector 2nd Grade, are set aside. In the light of that I send the case back to the Assistant Collector to proceed in the matter afresh in accordance with law. This is, however, made clear that this order of mine would not debar any of the parties to this litigation to raise any plea whichever is available to it before the Assistant Collector. I, however, pass no order as to costs.