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2016 Supreme(HP) 2136
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Atul Bhagirath – Appellant
Vs.
State of Himachal Pradesh – Respondent
CWP No. 4380 of 2009
Decided On : 27-10-2016
For the Appellant :Naveen K. Bhardwaj, Advocate
For the Respondent:Varun Chandel, Addl. AG and Mr. Pankaj Negi, Deputy Advocate General, K.D. Sood, Senior Advocate with Mr. Ankit Agrwal, Advocate
Procedural requirements for review petitions and revision proceedings under the H.P. Land Revenue Act.
Headnote:
Review Petition - Jurisdictional Error - H.P. Land Revenue Act, Section 16, Section 17(3) - The court discussed the provisions of H.P. Land Revenue Act, particularly Section 16 and Section 17(3), and emphasized that a review petition was not maintainable under Section 17 except in case of clerical or arithmetical mistakes arising from an accidental slip or omission. The court also highlighted that the Commissioner should report the matter to the Financial Commissioner in revision proceedings, and failure to follow this procedure would result in exceeding jurisdiction.
Fact of the Case:
The petitioners challenged orders passed by the Financial Commissioner (Appeals) on the grounds of non-representation and jurisdictional error.
Finding of the Court:
The court found that the petitioners were duly served and had the opportunity to be represented before the Financial Commissioner (Appeals). It also held that the Commissioner had exceeded jurisdiction by not following the prescribed procedure under the H.P. Land Revenue Act.
Issues: Non-representation before the Financial Commissioner (Appeals), maintainability of the review petition, and jurisdictional error by the Commissioner.
Ratio Decidendi: The court emphasized that the review petition was not maintainable under Section 17 of the H.P. Land Revenue Act, except in specific cases, and highlighted the procedural requirements for revision proceedings.
Final Decision: The petition was dismissed for being devoid of merit.
Vivek Singh Thakur, J.
By way of present petition, order dated 27.11.2007 and 6.10.2009 passed by Financial Commissioner (Appeals), Government of Himachal Pradesh in case No. 278 of 2006 and Review Petition No. 1/2009 have been assailed with prayer that after setting aside these orders, Financial Commissioner (Appeals) be directed to decide the case afresh on merit by giving opportunity of being heard to the parties in the interest of justice.
2. Learned counsel for petitioners contended that at the time of passing of order dated 27.11.2007 Annexure P-2, no representative of present petitioners (respondents therein) was present before Financial Commissioner (Appeals). He further submitted that though in the Zimni order dated 28.05.2007 presence of Sh. Vinod Gupta Advocate has been marked as counsel for present petitioners (respondents therein), however, petitioners had never engaged or instructed Sh. Vinod Gupta Advocate to appear on their behalf. As per him, in view of such situation there was no representative of petitioners present before Financial Commissioner (Appeals) at the time of deciding case No. 278/2006. Therefore, Review Petition No. 1/2009, filed by petitioners, against order dated 27.11.2007 (Annexure P-2) has wrongly been dismissed vide impugned order dated 6.10.2009 (Annexure P-4).
3. In view of amended proviso of Section 16 of H.P. Land Revenue Act, no application for review is maintainable under Section 17 of the Act except in case of clerical or arithmetical mistakes arising from an accidental slip or omission. On confrontation with provisions of H.P. Land Revenue Act. Learned counsel for petitioners fairly admitted that Review petition no. 1/2009 was not maintainable. However, he submitted that said petition was filed on advice of advocate engaged by petitioners and there was no fault on their part in filing the said Review petition and therefore, filing of the said Review petition and order passed in the same deserves to be ignored and order dated 27.11.2007 passed in case No. 278/2006 deserves to be set aside and quashed on the ground that the petitioners have been condemned unheard and the said impugned order has been passed behind the back of petitioners.
4. Learned Deputy Advocate General has produced record as directed on 03.10.2016. Perusal of record reveals that present petitioners who were respondents in case No. 278/06 were duly served for 6.3.2007, but they had not bothered to have their representation before Financial Commissioner (Appeals). On 6.3.2007 on that day report of service compliance in respect of present petitioners was not on record, therefore, reminders for record and fresh notices to petitioners (respondents in case No. 278/2006) for 28.05.2007 were issued. On 28.5.2007, one Sh. Vinod Gupta Advocate, put appearance on behalf of the petitioners (respondents in case No. 278/2006). The said Sh. Vinod Gupta had represented them on 24 July 2007 also.
5. Record reveals that no power of attorney or memo of appearance was ever filed by Sh. Vinod Gupta, Advocate for representing petitioners. It appears that by taking advantage of such situation, petitioners are claiming that they were condemned unheard and impugned order was passed behind their back without giving opportunity of being heard to them. However, there is nothing placed on record with regard to any action taken against Sh. Vinod Gupta Advocate by petitioners for appearing in Court and representing them without their instructions. It is sufficient to draw conclusion that petitioners had instructed Sh. Vinod Gupta, Advocate to appear on their behalf and to represent them. In any case, if it is considered that Sh. Vinod Gupta Advocate was not instructed by petitioners to represent them before Financial Commissioner (Appeals), then also petitioners were duly served for actual date of hearing i.e. dated 6.3.2007 and it was for petitioners to make arrangements for their representation/appearance before Financial Commissioner (Ap
