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Dhingroo Mall Vs. the Financial Commr. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 7 of 1951
Judge
Reported inAIR1953HP74
ActsConstitution of India - Article 226; ;Punjab Land Revenue Act, 1887 - Section 16
AppellantDhingroo Mall
RespondentThe Financial Commr. and anr.
Appellant Advocate R.N. Malhotra, Adv.; Shankar Nath, Adv.
Respondent Advocate L.N. Sethi, Govt. Adv.
DispositionPetition dismissed
Cases ReferredAsiatic Engineering Co. v. Acchru Ram
Excerpt:
- .....the dismissal order was dismissed on 29-3-1950. thereupon the raja went up in revision to the financial commissioner against the collector's order dated 21-6-1948. the financial commissioner held that the collector had no authority to grant a lease in respect of the private property of the raja and that his order was therefore ultra vires. the financial commissioner even remarked that the order appeared to be mala fide in view of its having been passed in spite of the tehsildar's report to the con-trary. two objections raised before the financial commissioner on behalf of the present petitioner, one relating to limitation and the other to his power to revise the order in question, were rejected. in the result, the revision, was allowed by the financial commissioner on 21-2-1951, the.....
Judgment:
ORDER

Chowdhry, J.C.

1. This is a petition by one Dhingroo Mall under Article 226 of the Constitution for issue of writs of certiorari and prohibition restraining the respondents, the Financial Com-missioner, Himachal Pradesh and the State of Himachal Pradesh, from dispossessing the peti-tioner from land measuring 24 bighas and 7 biswas comprising Khewat Khataunj No. 1/1, Khasra Nos. 643, 645 and 649, and house pro-perty appurtenant thereto, situate in Chak Nar, Tehsil Chopal, District Mahasu.

2. The petitioner applied on 14-4-1948 to the Raja of Jubbal for the grant of the said land to him on the ground of subsistence. The application was sent down through the Chief Executive Officer to the Collector for disposal. The Collector asked for a report from the Tehsildar of Chopal. The Tehsildar reported that the land was part of the private Bassa of the Raja, and that the Raja had previously not agreed to its being given for cultivation. The Tehsildar suggested that until final decision of the Raja's claims to private property the land in question be not given to anybody for cultivation. The Collector of Jubbal, disagreeing with the report of the Tehsildar, granted the land to the petitioner by an order dated 18-6-1948. As the period of lease was not specified in the order, he amended it by an order dated 21-6-1948 by fixing the term of lease as ten years.

The Raja appealed against the Collector's order to the Commissioner of Mahasu, but the appeals was dismissed for default on 16-9-1948. A subsequent application of the Raja to set aside the dismissal order was dismissed on 29-3-1950. Thereupon the Raja went up in revision to the Financial Commissioner against the Collector's order dated 21-6-1948. The Financial Commissioner held that the Collector had no authority to grant a lease in respect of the private property of the Raja and that his order was therefore ultra vires. The Financial Commissioner even remarked that the order appeared to be mala fide in view of its having been passed in spite of the Tehsildar's report to the con-trary. Two objections raised before the Financial Commissioner on behalf of the present petitioner, one relating to limitation and the other to his power to revise the order in question, were rejected. In the result, the revision, was allowed by the Financial Commissioner on 21-2-1951, the orders of the Collector dated 18th and 21st June 1948 were set aside and the land in dispute was ordered to be restored to the Raja. The present petition has been, filed to prevent enforcement of this order of the Financial Commissioner. It may be stated here in passing that the present petitioner filed, an application to the Financial Commissioner for reviewof the order, but the application was rejected on 22-6-1951.

3. It was argued by the learned counsel for the petitioner that the petitioner was in possession of the property in question either as a tenant on foot of the Tease granted by the Collector or as a trespasser if the grant be held to be invalid. He further contended that in the former case the petitioner could only be ejected in accordance with the provisions of the Punjab Tenancy Act and in the latter case by a civil suit, and that the Financial Commissioner had no jurisdiction to order the petitioner's eviction in the revision filed by the Raja. The learned counsel pleaded that the Financial Commissioner's order infringed the fundamental right of the petitioner under Article 31(1) of the Constitution that he shall not be deprived of his property save by authority of law. It was further argued that the petitioner had made certain improvements for which he could have claimed compensation if the Raja had sought to evict him by a suit, and that therefore the Financial Commissioner's order infringed the further right of the petitioner under Clause (2) of the said Article which provides that no property shall be taken possession of without compensation.

4. As adverted to above, the question regarding jurisdiction was raised before the Financial Commissioner. It was held by him that he was empowered to revise the Collector's order under Section 16, Punjab Land Revenue Act. If this yiew be correct, the petitioner would not be entitled to any relief from this Court because this Court would not sit as a Court of Appeal in order to correct the errors of law or procedure of the Financial Commissioner in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. This extraordinary jurisdiction could properly be invoked only if the Financial Commissioner had no jurisdiction to pass the order in question. The learned counsel for the petitioner realised it and was therefore constrained to argue that the Collector had no jurisdiction to grant the lease, and that therefore the orders passed by him on the 18th and 21st of June 1948 were illegal. The learned counsel then went on to argue that the Financial Commissioner had no jurisdiction to revise the Collector's orders under Section 16, Punjab Land Revenue Act.

5. In trying to steer clear of the Scylla of the competency of the Financial Commissioner's order the learned counsel for the petitioner was inevitably caught by the Charybdis of want of right in the petitioner. If the Collector had no authority to grant the lease to the petitioner in respect of the private property of the Raja, the petitioner has acquired no rights in the property in dispute. The petitioner has therefore no right to prefer the present petition under Article 226 of the Cpnstitution. It is well settled that Article 226 of the Constitution makes the issue of directions, orders or writs discretionary and it cannot be urged that any party has a right to any form of order as a matter of course. The discretion is a judicial one to be exercised according to judicial principles. 'Asiatic Engineering Co. v. Acchru Ram', AIR 1951 All 746 (A). This judicial discretion would of course be not exercised in favour of a partyunless the case of the party seeking the extraordinary legal remedy under Article 226 is foundedon a clear legal right, and the exercise of thatjurisdiction would be definitely refused where, as in the present case', the petitioner has admittedly no right in the property in respect of which the extraordinary legal remedy is sought. For the same reason, the contention of the petitioner is untenable that any fundamental right under Article 31 of the Constitution has been infringed, or that the Financial Commissioner's order is against natural justice. As regards improvements, the contention on behalf of the Raja is that his own material has been used in effecting them. Be that as it may, whatever other remedy the petitioner may, or may not, have in respect of the property in question, this Court would grant him no relief in exercise of its extraordinary jurisdiction under Article 226 of the Constitution when the Collector's order under which the petitioner holds the property was admittedly illegal. Before I conclude, it has to be stated that, besides the respondents, the petition was opposed by the Raja of Jubbal, who was also allowed to be heard in opposition to the motion as a person directly affected although not impleaded as a respondent.

6. The petition is dismissed. The petitionerwill pay as costs Rs. 50/- to the respondents andRs. 25/- to the Raja of Jubbal.


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