MILI SAINT DAVID Vs. DULO

JUDGEMENT

(1.) Petitioner, Smt. Mili Saint David has preferred a revision petition under section 65 of H. P. Tenancy and Land Reforms Act, 1972 against the order dated 27 -2 -1982 of the Divisional Commissioner Kangra Division. By virtue of the impugned order, he disposed of two appeals by setting aside the order passed by the Collector, Dharamshala and upholding the order of the Assistant Collector, Ilnd Grade, passed in Mutations No. 12 and 39. The contention of the petitioner is that she was not given a reasonable opportunity of being heard when the mutations No. 12 and 39 were attested. Moreover, an enquiry was also not held by the Assistant Collector, Ilnd Grade before attesting the mutations.

(2.) Briefly, the facts of the case are that the Assistant Collector, Ilnd Grade, Palampur, vide his order, dated 24 -11 -1976 sanctioned mutation No. 12 and mutation No. 39 in respect of the land comprising Khasra Nos. 909, 910 and 911 and land comprising Khasra Nos. 903, 912 and 913, respectively, in the ownership of Smt. Mili Saint David, situated in Tika Bundla, Mohal Aliema. As a result of these mutations, proprietary rights under section 104 (3) of H. P. Tenancy and Land Reforms Act were conferred upon the respondent, Dulo. Aggrieved by these orders, Smt. Mili Saint David filed two appeals before the Collector Dharam Shalla who accepted the appeals vide his single order, dated 5 -5 -1977, This order of the Collector, Dharamshala, was challenged in the second appeal by the present respondent, Dulo before the Divisional Commissioner. It was held by the Collector that since Dulo had been entered as a tenant in respect of the land, in dispute, and entries of tenancy had also been made in Misal Hakiyat, Dulo had acquired the proprietary rights over the land, in question, in terms of the provisions of section 104 (3) of the H. P. Tenancy and Land Reforms Act, It was further observed by him that since the respondent, Dulo had become the owner of the land, the presence of the parties before the Assistant Collector, Ilnd Grade was not essential as he had merely attested the mutations. It was also held by him that the entry in the Misal Hakiyat was made after due enquiry by the settlement staff and in case the petitioner was aggrieved by the entry in the Misal Hakiyat, she should have sought relief from the Civil Court of competent jurisdiction.

(3.) I have heard the learned Counsels for tie petitioner as well as the respondent and perused the Court record. Perusal of the order, dated 24 -11 -1976 passed by the Assistant Collector, Ilnd Grade, does not indicate that the petitioner, Smt. Milli Saint David was either served with a notice or she was given an opportunity of being heard before the mutations No. 12 and 39 were attested. According to the Land Administration Manual, the Tehsildar is expected to deal with the revenue work particularly with the cases relating to mutations within the estates in which these cases have arisen. In other words, mutations are to be attested on the spot by the Tehsildar. Further according to para 383 of the Manual, "every mutation order must clearly state the place where it %vas passed, the date on which it was passed and also whether the parties interested were present or, if any one was absent, the way in which his evidence was obtained, or, if it was not obtained, what opportunity was given to him to be present." From the guidelines contained in the Manual, it is apparent that the interested parties have to be given an opportunity of being present and statement of parties and witnesses have to be very briefly recorded in the mutation orders. In the instant case, the proprietary lights are stated to have been acquired by the respondent under section 104 (3) of the H. P. Tenancy and Land Reforms Act and consequently mutation was to be attested. Procedure of attestation of mutation in such cases has been laid down in rule 28 of the H. P. Tenancy and Land Reforms Rules, 1975, According to the rule 2F, the Patwari is required to enter the mutation of ownership in the mutation register in favour of the non -occupancy tenant in whom the proprietary rights under rule 27 have vested and the Revenue Officer is required to attest the mutation in the presence of the parties. In other words, the presence of the petitioner who is an interested party was essential before the order in mutations Nos. 12 and 39 was passed. Since the petitioner was neither given a notice nor she was present when the impugned orders in mutations Nos. 12 and 39 were passed, her contention that she was not given a reasonable opportunity of being heard is fully substantiated. And both according to Land Administration Manual as well as the H. P. Tenancy and Land Reforms Rules, presence of the parties is essential before mutations are attested. In view of the above the orders of the revenue officers below are set -aside and the revision petition is allowed. The case is remanded to the Assistant Collector, llnd Grade, for passing a fresh order in accordance with law. The parties are directed to appear before him on 31 -10 -1985. Case remanded.