The Assistant Collector lacked jurisdiction to confer proprietary rights under the Tenancy Act, and fraudulent actions in mutation proceedings are void.

JUDGMENT :

G.S. Sandhawalia , CJ.

Consideration in the present Letters Patent Appeal is to the judgment in passed on 30.07.2019 by the learned Single Judge in Civil Writ Petition No. 4306 of 2011, whereby the writ petition filed by the writ petitioners has been dismissed.

2. Challenge in the writ petition as such was to the order dated 26.04.2011, passed by the Financial Commissioner (Appeals) H.P., whereby the right of the petitioners, who are the legal heirs of Surat Ram Mahantan regarding issue of mutation was termed as an attempt to alienate the land by misusing the provisions of the H.P. Tenancy and Land Reforms Act, 1972 (in short ‘the Tenancy Act’) to avoid payment of stamp duty. The Financial Commissioner upheld order dated 06.11.2022, passed by the Commissioner (Revenue), which was subject matter of Revision Petition filed before the Financial Commissioner, while coming to the conclusion that the order passed by the Commissioner (Revenue) was a detailed and well reasoned order where he has delved with the evidence adduced by the Field Revenue Officers including the Settlement Collector, Shimla, Division. Resultantly, the prayer as such to uphold Mutation No. 1478, attested on 28.07.1989 in the name of Shri Surat Ram Mahantan, i.e. predecessor-in- interest of the present petitioners had been rejected by the said Authorities.

3. The learned Single Judge, in sum and substance, while discussing the evidence as such came to the conclusion that the land in question was situated in the urban area of Shimla and therefore, did not qualify to be termed as ‘land’ within the meaning of Section 2(7) of the Tenancy Act as there was construction over the area and it was not subservient to agriculture within the meaning of Section 118 of the Transfer of Property Act, 1882. Reference was also made to Jamabandi for the year 1976-77 to show that the ownership was of Raja Hitendera Sen, son of Shri Mahinder Sen, son of Shri Vijay Sen, Resident of Junga and the entry in Column No. 5 of cultivation possession was ‘Kabja Swayam’ (self- occupation) and there was ‘Gair Mumkin Ahata’ (courtyard) and two storeyed Kothi (Kothi Do Manjila). The presumption of truth being attached to the revenue entries was kept in mind while holding that the corrections could not have been ordered to be made by the Assistant Collector 2^nd Grade Settlement or any other Revenue Officer, especially when there was no order passed by the superior Officer. Since the landlord as such had never got the revenue entries corrected in the earlier successive Jamabandies, therefore, the entries showed the possession as such of the landlord which had been changed by the Assistant Collector 2^nd Grade, Settlement in favour of the predecessor-in-interest of the petitioners as tenant at will and even the nature of the land from constructed area into agriculture land was changed and thereafter proprietary rights were wrongly granted in favour of the predecessor-in-interest of the petitioners. It was noticed that solely on the statement of Sh. Surat Ram Mahantan recorded on 29.01.1988 and the application moved by the landowner on 18.08.1987 and his affidavit of the same date, the reports were prepared which were also beyond the jurisdiction of the Assistant Collector 2^nd Grade, Settlement. Therefore, the proprietary rights could not have been given to the predecessor-in-interest of the petitioners.

4. Reliance was placed upon Rule 29 of the H.P. Tenancy and Land Reforms Rules, 1975 (for short ‘Land Reforms Rules’), wherein it is provided that the Land Reforms Officer in the capacity of Assistant Collector 1st Grade, is the competent Authority to order attestation of mutation for conferment of proprietary rights upon the tenant. Thus, it was held by the learned Single Judge that due to lack of jurisdiction as such, the Assistant Collector 2^nd Grade (Settlement) was not the competent Authority to order the attestation of mutation for conferment of proprietary rights upon the tenant. It was