Himachal Pradesh High Court
Kanta Devi vs Financial Commissioner & Others on 28 October, 2024
Bench: Tarlok Singh Chauhan, Chief Justice
Neutral Citation No. ( 2024:HHC:10393-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 147 of 2016
Date of decision: 28.10.2024.
Kanta Devi ...Appellant.
Versus
Financial Commissioner & others ...Respondents.
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting
Chief Justice.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1
For the appellant : Mr. Sunil Mohan Goel, Sr.
Advocate with Mr. Raman Jamalta,
Advocate.
For the respondents : Mr. Anup Rattan, Advocate General
with Mr. Sushant Kaprate, Addl.
A.G. for respondents No. 1 and 2.
Mr. Bimal Gupta, Sr. Advocate with
Mr. Aman Thakur, Advocate, for
respondent No.3.
Satyen Vaidya, Judge (oral):
This Letters Patent Appeal is directed against
the judgment dated 9.5.2016, passed by the learned Single
Judge in CWP No. 3079 of 2015, whereby the orders dated
28.3.2014 and 16.12.2014, passed by the Divisional
Commissioner, Mandi and Financial Commissioner
Whether reporters of Local Papers may be allowed to see the judgment?
(Appeals), Himachal Pradesh respectively have been
affirmed, upholding the appointment of the respondent
No.3 Uttam Ram as Kardar of Devta Adi-Brahama, Phati
Shilihar, Kothi Khokan, Tehsil Bhunter, District Kullu,
Himachal Pradesh, (for short, 'Devta').
2. Indisputably, Manglu was the Kardar of the
Devta till his death in the year 1973. Manglu had two sons
namely Janglu and Ramu @ Ram Singh. Janglu had died
on 7.10.1948. On the death of Manglu, one Luddar Chand
was appointed as Kardar of the Devta by the Collector,
Kullu vide order dated 11.10.1974. Ramu @ Ram Singh
challenged the appointment of Luddar Chand as Kardar by
way of Civil Suit No.41-1/1975 filed before the learned Sub
Judge, 1st Class, Kullu. The said suit was decreed in
following terms vide judgment dated 1.11.1975:-
"Relief:- Keeping my findings on the aforesaid issues in
view, the suit of the plaintiff is decreed with costs for
declaration to the effect that order of collector Kullu dated
11.10.1974 appointing defendant No.1 Luder Chand as
Kardar of Devta Ade-Brahma is illegal and void and the
plaintiff is not bound by the same and that the
defendants are restrained not to interfere with the
working of the plaintiff as Kardar till the appointment of a
new Kardar. Hence, the matter should be considered as
de novo by the collector for the appointment of Kardar in
which the plaintiff among the other candidates should be
given due and reasonable opportunity. A decree sheet be
drawn accordingly and file be consigned to record. The
cost will be borne by the defendant No.1."
3. The aforesaid judgment and decree was affirmed
in First Appeal as also in Regular Second Appeal No. 84 of
1979. In the above backdrop, Ramu @ Ram Singh held the
office of Kardar of Devta till the date of his death i.e.
27.2.2009.
4. The appellant herein Smt. Kanta Devi is the wife
of late Ramu @ Ram Singh. After the death of Ramu @
Ram Singh, the appellant preferred an application to the
jurisdictional Sub Divisional Collector with a prayer to
appoint her as Kardar. However, the Collector vide order
dated 7.9.2009 appointed respondent No.3 Uttam Ram as
Kardar. Uttam Ram is son of late Janglu. The appellant
assailed the decision of Collector before the Divisional
Commissioner, Mandi, who after accepting the appeal of
the appellant remanded the case back to the Collector for
decision afresh. The Collector passed a fresh order and
appointed the appellant Smt. Kanta Devi as Kardar in
place of respondent No.3. This time, respondent No.3
preferred the appeal before the Divisional Commissioner,
Mandi, who allowed the same vide order dated 23.4.2014.
The appellant unsuccessfully assailed the said order of
Divisional Commissioner, Mandi, firstly before the
Financial Commissioner (Appeals) and thereafter before the
writ Court by way of CWP No. 3079 of 2015, hence this
appeal.
5. We have heard learned counsel for the parties
and have also gone through the record carefully.
6. Learned Senior Counsel for the appellant
contended that the impugned judgment passed by the
learned Single Judge has been based on a premise which is
factually incorrect. He further submitted that the factual
error as to a material fact of the case had occurred in the
order passed by the Divisional Commissioner, which came
to be followed by the Financial Commissioner (Appeals)
and learned Single Judge of this Court causing serious
prejudice to the rights of the appellant. As per learned
Senior Counsel for the appellant, respondent No.3 Uttam
Ram was wrongly considered to be minor at the time of
death of Manglu in the year 1973. He placed reliance on a
document i.e. Annexure P-8 filed along with this appeal,
according to which, the date of birth of respondent No.3
Uttam Ram is 14.2.1945. Thus, according to learned
Senior Counsel for the appellant, the age of respondent
No.3 Uttam Ram in the year 1973 was about 28 years.
7. The stand of the appellant with respect to the
date of birth of respondent No.3, as reflected vide Annexure
P-8, has not been controverted. It being so, the age of
respondent No.3 at the time of death of Manglu in the year
1973 was about 28 years. Till the life time of Manglu, he
remained the Kardar and there was no question of anyone
else staking claim to the said office. It was only after the
death of Manglu that the question as to holding of office of
Kardar of the Devta had arisen.
8. The Collector had upheld the right of Ramu @
Ram Singh to hold the office of Kardar of Devta. The claim
of respondent No.3 Uttam Ram (son of late Janglu) was
upheld by the Divisional Commissioner in appeal on the
premise that since he was minor at the time of death of
Manglu, the office held by Ramu @ Ram Singh was only as
a custodian of the minor.
9. As observed above, since respondent No.3 was
about 28 years old at the time of death of Manglu, the
entire premise considered by the Divisional Commissioner
for upholding the right of respondent No.3 to hold the post
of Kardar of the Devta was baseless. The factual error
committed by the Divisional Commissioner remained
unnoticed even by the learned Single Judge of this Court
and consequently, the same reason weighed with learned
Single Judge in upholding the orders passed by the
Divisional Commissioner and the Financial Commissioner
(Appeals).
10. Since, the above noticed orders and the
judgment have been based on a wrong factual premise that
too with respect to a material fact, the said orders and the
judgment cannot be sustained.
11. Accordingly, this appeal is allowed. The
judgment dated 9.5.2016, passed by the learned Single
Judge in CWP No. 3079 of 2015 along with order dated
16.12.2014, passed by the Financial Commissioner
(Appeals), Himachal Pradesh in Revenue Revision No. 73 of
2014 and order dated 28.3.2014, passed by the Divisional
Commissioner, Mandi in Case No. 28 of 2012 are set
aside. The case is remanded to the Court of Divisional
Commissioner, Mandi Division with direction to decide
Appeal No. 28 of 2012, titled as Uttam Ram vs. Kanta Devi
afresh after affording the parties opportunity of being
heard.
12. The appeal is disposed of in the aforesaid terms.
Pending applications, if any, also stand disposed of.
(Tarlok Singh Chauhan)
Acting Chief Justice
(Satyen Vaidya)
28th October, 2023 Judge
(kck)
