Skip to content


Kanwar Hari Bhushan Singh, Etc. Vs. the Financial Commissioner, Himachal Pradesh, Simla - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberC.M.P. (M) Nos. 9 and 10 of 1976
Judge
Reported inAIR1981HP36
ActsConstitution of India - Article 226; ;Himachal Pradesh Ceiling on Land Holdings Act - Section 20(3)
AppellantKanwar Hari Bhushan Singh, Etc.
RespondentThe Financial Commissioner, Himachal Pradesh, Simla
Appellant Advocate Kamlesh Sharma, Adv.
Respondent Advocate Inder Singh, Adv. General
DispositionPetition allowed
Cases ReferredMrs. Maneka Gandhi v. Union of India.
Excerpt:
property - principles of natural justice - himachal pradesh ceiling on land holdings act - whether section 20 (3) of act does not enjoin duty on financial commissioner of affording an opportunity to be heard to affected person before collectors order's are modified or changed to disadvantage of any person - right of being heard is not impliedly taken away by act - directed financial commissioner to afford opportunity to petitioners before exercising his revisional power under section 20 (3). - .....in the manner prescribed. this has to be published and a copy of the same has to be served on the person or persons concerned. objections can be raised within 30 days of the service. the collector is required to consider the objections after affording the objectors an opportunity of being heard. by section 11 the surplus area has been vested in the state government. this section further lays down that 'all rights, title and interests (including the contingent interest, if any) recognised by any law, custom or usage for the time being in force, of all persons in such area shall stand extinguished and such rights, title and interests shall vest in the state government free from any encumbrance'. section 12 empowers the collector to take possession of the surplus area. section 14 lays down.....
Judgment:
ORDER

V.D. Misra, C.J.

1. This judgment will dispose of C.M.P. (M) Nos. 9 and 10 of 1976 since common questions of law have beet) raised.

2. The facts are similar though they differ in details. I will notice the facts, in brief, of C.M.P. (M) No. 9 of 1976.

3. The Himachal Pradesh Ceiling on Land Holdings Act, 1972 (referred to as the Act) came into force on 28th July, 1973. Permissible area of land which a person can hold in any capacity is laid down by Section 4, Section 5 lists the lands exempted from the operation of this Act. Section 6 prohibits persons from holding land in excess of the permissible area. Section 8 enjoins upon a person holding more than the permissible area of land to furnish to the Collector particulars of all his lands in the prescribed form. He is also required to inform the Collector the selection of land which he desires to retain. Section 10 requires the Collector to prepare a draft statement in the manner prescribed. This has to be published and a copy of the same has to be served on the person or persons concerned. Objections can be raised within 30 days of the service. The Collector is required to consider the objections after affording the objectors an opportunity of being heard. By Section 11 the surplus area has been vested in the State Government. This section further lays down that 'all rights, title and interests (including the contingent interest, if any) recognised by any law, custom or usage for the time being in force, of all persons in such area shall stand extinguished and such rights, title and interests shall vest in the State Government free from any encumbrance'. Section 12 empowers the Collector to take possession of the surplus area. Section 14 lays down the principles for determination and payment of amount by the Collector. Sub-section (4) gives a right to an owner 'to harvest the crop standing on the surplus area.' Section 20 provides for appeal, review and revision. Sub-section (3), with which we are presently concerned, reads thus: --

'(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'

4. Shri Hari Bhushan Singh, petitioner, was holding surplus land in terms of the Act. Necessary preliminaries were duly gone through. The Collector by his order dated 30th Feb. 1975 declared lands mentioned in the order as surplus area vesting in the Government free from all encumbrances. He, however, also ordered 'the assessee shall be entitled to remove the trees from his jungles as marked to him silviculturally by the Forest Department within 6 months from today.'

5. The Financial Commissioner during his tour of the area came across orders passed by the Collector in the present two cases. He called for the records and after perusing the same he decided to set them aside. He wrote a reasoned order dated 31st July, 1975 and held that the Collector's order 'to remove the trees from the area rendered as surplus is wrong. The Collector has exercised jurisdiction not vested in him by law, It is a fit case where a revisional power should be exercised'. And the Financial Commissioner proceeded to set aside the orders without affording to the petitioners any opportunity of being heard. These petitions under Art. 227 of the Constitution challenge the orders of the Financial Commissioner.

6. The first question which arises for determination is whether Sub-section (3) of Section 20 of the Act does not enjoin a duty on the Financial Commissioner of affording to the affected persons an opportunity of being heard before the Collector's orders are in any manner modified or changed to the disadvantage of any person.

7. By now it is well settled that the principles of natural justice should be read into a statute unless these are expressly or impliedly taken away by the statute. These require that before any right of a person is taken away he should be afforded an opportunity of being heard. The Supreme Court in Union of India v. J. N. Sinha, AIR 1971 SC 40 (41) observed:

'Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends on the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.'

8. Sub-section (3) of Section 20 of the Act no doubt confers a power of revision on the Financial Commissioner which he can exercise suo motu. But then it does not mean that he can, while exercising this power, take away the rights of a person, without affording the latter an opportunity of being heard.

9. It is contended by the learned Advocate General that I must look into the facts of this case and if, after perusing the language used in the Act, the reasons given by the Financial Commissioner as well as the decision of the Supreme Court in Divisional Forest Officer v. Daut, AIR 1968 SC 612. I come to the conclusion that the petitioners had no right to the trees then I should uphold the orders passed by the Financial Commissioner and should refuse the petitioners opportunity of being heard. I am afraid I cannot agree. The right, of being heard is so important that one should not try to imagine or fathom the reasons which a person may advance or what he may like to say. It will be a sad day indeed when we can foreclose a person and refuse him a hearing only on the ground that we think that the other persons cannot pos sibly have an answer. It may be that when a person is granted the opportunity, he may in fact not advance any reason or may not even utilise the opportunity. But then there is a very important difference between not giving the opportunity and a person not being in a position to say anything against a proposed order. In the instant case the petitioners want to canvass that the trees are their crops which they are entitled to cut under Sub-section (4) of Section 14. It will be for the Financial Commissioner to decide whether the petitioners' contentions are to be upheld or rejected.

10. Now the learned Advocate General makes a statement that the petitioners will be given an opportunity of being heard by the Financial Commissioner. After making the statement it is suggested that I should not set aside the impugned order. The reason given is that the impugned order was passed more than four and a half years ago and in the meantime it is possible that the trees in question might have been even allotted to some one or might have actually been cut and removed. In this connection reliance is placed on (1978) 1 SCC 248 : (AIR 1978 SC 597); Mrs. Maneka Gandhi v. Union of India.

11. I find no reason for not setting aside the impugned order. In my opinion, this order must be set aside to show at least to the petitioners that the Financial Commissioner is sitting with an open mind and is not bound with the view he has already taken. Moreover, I see no legal impediment in setting aside the impugned orders which have been found to be illegal. Of course, if after hearing the petitioners the Financial Commissioner reaches the same conclusion which he has already reached, he will be free to pass a similar order. But by not setting aside the orders there is likelihood of an impression being created that this court found the orders valid and that that was the reason for not setting them aside.

12. In the case of Maneka Gandhi, (AIR 1978 SC 597), it is true, that the Supreme Court in its wisdom decided not to sot aside the impugned order. But then the Supreme Court did not proceed to lay down the law that the impugned orders suffering from the vice of not having been made after granting opportunity to the affected parties of being heard, shall not be set aside. On the other hand, I find that the order of the Full Court was not to pass any formal order since the court decided that it was not necessary to formally interfere with the impugned order. What is binding on me is the low laid down by the Supreme Court and not the decision on facts given in the circumstances of any particular case. It appears to me that in the facts of the case of Maneka Gandhi the Supreme Court was satisfied to adopt a particular course. However, by no stretch of imagination it can be contended that this is the course which henceforth must be followed. If I am wrong, of course, I will like to be corrected by a further decision of the Supreme Court on this point.

13. Miss Sharma, learned counsel for the petitioners, has drawn my attention to various provisions of the law to support her contention that the Act, instead of taking away the principles of natural justice, has expressly conferred on the petitioners the right of being heard. In this connection Section 23 of the Act is referred to. It lays down that the procedure to be followed by the officers under this Act will be the procedure which may be prescribed. The rules framed under this Act lay down the procedure in Rule 18. This rule requires the officers to 'observe the procedure as prescribed for revenue officers in the tenancy laws for the time being in force in the Himachal Pradesh.' The tenancy law which was prevalent at the time when this Act came into force was Abolition of Big Landed Estates and Land Reforms Act, 1953. Thereafter the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No. 8 of 1974) came into force on 2lst February, 1974. Now under the former, Section 118 confers powers on the Financial Commissioner of revision. Similar powers are conferred on the Financial Commissioner by Section 65 of the latter Act. Both the Sections are pari materia. It, therefore, does not matter whether reference is made to one or the other. The relevant provision for our purpose is Sub-section (5) which runs thus:

'(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 which he may appoint in this behalf, pass such order as he thinks fit in the case.'

14. It is obvious that the Financial Commissioner is required to fix a date for hearing of the case. The purpose of fixing the date is to give an opportunity to the affected party of being heard. It, therefore, cannot be contended that the right of being heard has been impliedly taken away by the Himachal Pradesh Ceiling on Land Holdings Act.

15. I would, therefore, allow the two petitions, set aside the impugned orders, remand the cases to the Financial Commissioner directing him to afford opportunity to the petitioners before exercising his revisional powers under Section 20 (3) of the Act. No orders as to costs.

16. At this stage the learned Advocate General submits that the parties should be directed to appear before the Financial Commissioner and in the meantime the parties shall not remove the trees in question. The parties are directed to appear before the Financial Commissioner on 5th May, 1980, and not to remove any of the trees in question.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //