Smt. Saroj And Others ... vs State Of Uttarakhand And Others
2021 Latest Caselaw 611 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL

                    Writ Petition No. 399 of 2021 (M/S)

Smt. Saroj and others                                              .....Petitioners.
                                        Versus
State of Uttarakhand and others                                    ....Respondents

Present :
Mr. B.D. Pande, Advocate for the petitioners.
Mr. Ajay Singh Bisth, Addl. C.S.C. for the State of Uttarakhand.


                                                         Dated: 3rd March, 2021
                                JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

(Via Video Conferencing)

The petitioners are the opposite parties to the proceedings, which were being held under Section 34 of the Land Revenue Act, to which, the cognizance has been taken by the Court of Tehsildar, Berinag, District Pithoragarh, while exercising his suo moto powers, under Section 202 of the Land Revenue Act, as has been argued by the counsel for the petitioners.

2. The argument raised by the learned counsel for the petitioners is that the initiation of the proceedings in pursuance to the issuance of the notice, which is impugned in the present Writ Petition i.e. dated 19th January, 2021, is without competence, and the issue of competence has been agitated by the learned counsel for the petitioners, on the pretext that there are two judgments, on which, he wants to place reliance, a judgment, which has been rendered by Gujrat High Court, in R/Special Civil Application No. 23469 of 2007, Hasmukhbhai Dahyalal Soni Vs. Collector, Gandhinagar, particularly, he has made reference to para 9 of the said judgment, which is referred to hereunder :-

"(9) That despite the facts as aforesaid, the Respondent, after a gross delay, on date 26-7-2007, issued a notice to the present Petitioners as also to the sisters of the present Petitioners to take the Mutation Entries Nos. 12834, 13210 and 14144 into suo-moto revision under Section 211 of the Code

and to cancel the same, only on the grounds that the Will, Annexure A herein, is not probated and no pedigree is produced of the person making the said Will, without applying mind to the relevant provisions of The Succession Act and the Code, and the facts as are clearly reflected in the entries produced at Annexure C herein and even the Registered Sale-Deed at Annexure B herein, and, as such, the said notice itself is clearly without jurisdiction and causing undue harassment to the C/SCA/23469/2007 JUDGMENT present Petitioners. A copy of the said Notice is produced herewith and marked as ANNEXURE 'E' to the present petition."

3. The second judgment, on which, he has placed reliance is, on a judgment, which was arising from the judgment of Punjab and Haryana High Court, which travelled upto the Hon'ble Apex Court and the Hon'ble Apex Court vide its decision, which was rendered in Appeal (Civil) No. 4808 of 2007, State of Punjab and others Vs. Bhatinda District Coop. Milk P. Union Ltd., while determining the aspect of grant and exercise of suo moto powers, which could be exercised by the Court, has observed that even if the statutory grant of suo moto powers, has had to be exercised, within a reasonable time frame, if it aims at for reopening of the order of an assessment therein, which was arising out of Punjab General Sales Tax Act. The principle, which has laid down therein in para 20 of the said judgment, which is quoted herein, in fact, the Hon'ble Apex Court was dealing with an aspect of an exercise of suo moto powers for drawing a revisional proceedings under Taxing Law, where under the said backdrop of the intention of the legislation, which was sought to be enforced pertaining to imposing a tax, the Hon'ble Apex Court has held that the suo moto powers could be exercised by the Revisional Court under the Taxing Law, has had to be within a reasonable period, and there cannot be any undue delay for initiation of proceedings. Para 20 of the said judgment reads as under :-

"20. In S.B. Gurbaksh Singh v. Union of India & Ors. [1976 (37) STC 425], Untwalia J., speaking for the Bench, opined : Appropos the fourth and last submission of the appellant, suffice it to say that even assuming that the revisional power cannot be exercised suo motu after an unduly long delay, on the facts of this case it is plain that it was not so done.

Within a few months of the passing of the appellate order by the Assistant Commissioner, the Commissioner proceeded to revise and revised the said order. There was no undue or unreasonable delay made by the Commissioner. It may be stated here that an appeal has to be filed by an assessee within the prescribed time and so also a time-limit has been prescribed for the assessee to move in revision. The appellate or the revisional powers in an appeal or revision filed by an assessee can be exercised in due course. No time-limit has been prescribed for it. It may well be that for an exercise of the suo motu power of revision also, the revisional authority has to initiate the proceeding within a reasonable time. Any unreasonable delay in exercise may affect its validity. What is a reasonable time, however, will depend upon the facts of each case."

4. The learned counsel for the petitioners had submitted that if the provisions contained under Section 202 of the Land Revenue Act of 1901, is taken into consideration, the exercise of powers or suo moto powers, could be pressed in a proceeding under the Act within 90 days of such order either of own motion or even on an application of the parties. This Court is not in agreement with the tenacity of argument which has been extended by the learned counsel for the petitioners. The reasons being :-

i. That the provisions contained under Section 34, which deals with the aspect of recording of the succession or transfer of possession of the property covered under the Land Revenue Act, is a substantive provisions which constitutes to be the part of Chapter 3 of the Land Revenue Act of 1901, which is a substantive provision. The implications of Section 202, will not be attracted, over here, in the present case, which constitutes to be the part of Chapter 9, dealing with the procedure which is to be followed by the Revenue Courts or Revenue Officer and particularly, I am of the view that Section 202, cannot be read in isolation to the powers of suo moto to be exercised by the Revenue Courts, wherein, the said Section 202, in fact, relates to the orders passed in the proceedings under the Act, which could be corrected /rectified within the specified period of 90 days therein.

5. My view is that there is no such embargo as such which is legally created by Section 202, for not taking cognizance to the proceedings under Section 34 by exercise of suo moto power, which is an independent provision, to the provisions contained under Section 202, and the tenacity of argument of there being a delay in initiation of the proceedings by issuance of notices under Section 34 of the Land Revenue Act, and hence that itself it would bar the jurisdiction of the Tehsildar itself is not acceptable. The rationale behind it is, that unlike the issue which was being dealt with by the Hon'ble Apex Court, which was under the Taxing Laws, the strict period of limitation has to be construed for the purposes of imposition of a financial implication, on the person who is likely to be affected, while exercising the revisional jurisdiction in the exercise of its suo moto jurisdiction, where the period of limitation has been observed to be strictly adhered to here, the initiation of the proceedings within the reasonable time frame particularly when it is exercised by the suo moto powers, under the taxing and substantive law is concerned, and that too in the proceedings at revisional stage, was altogether under a different context, would not apply here.

6. The concept of the said principle which has been laid down in para 20 of the said judgment would not apply here because the Land Revenue Act, proceedings had been consistently held are summary proceedings, and the initiation of it under Section 34, is only for the purposes of making alteration, changes in the revenue records and which could be initiated by suo moto cognizance also and that too particularly when the principle of res judicate on the pretext that the earlier proceedings already stood decided will not come into play because the alteration of the revenue entry under Section 34, will not attract within itself the said principle of res judicata, since being summary in nature and are fiscal entries.

7. The second reason for not accepting the argument of the learned counsel for the petitioners, while giving challenge to the

impugned notice of 19th January, 2021, as had been issued by the Assistant Tehsildar, Berinag, is not accepted by this Court for the reason being that if the order itself is scrutinized in its totality, what it reflects, is that, in fact, when Case No. 3 of 2020-21, was instituted for declaration to be made under Section 171 of the Land Revenue Act, in fact, earlier the notices were already issued, which in fact was served on the petitioner by affixation, and later on a substituted mode of service was also adopted by issuing paper publication, which was published on 17th March, 2020, in Amar Ujala.

8. Consequently, the Court has observed that despite of the fact that two alternative modes have been adopted for affecting services on the petitioners, he has not put in appearance, hence the Court has proceeded to hear the matter and fixed 6th February, 2021.

9. The veracity of this notice under challenge, which had been issued by Tehsildar on 19th January, 2021, was nothing but a consequential action, which was taken by the Court, when the petitioners had not responded to the earlier notice, steps for service of notice and the publication made in the newspaper, and hence, the petitioners cannot take the liberty to challenge a subsequent consequential notice for drawing the proceedings against the petitioners without giving challenge to the principle notice before the competent and appropriate forum, which was initially issued to him when suo moto cognizance was taken.

10. There is no question raised, as such by the petitioner with regard to the jurisdictional competence of the Tehsildar, to initiate the proceedings under Section 34, except only under the pretext of the pronouncement laid down by the Hon'ble Apex Court of taking a suo moto cognizance. That in itself will not make the Tehsildar, as to be incompetent to issue notice in a summary proceeding under Section 34, where still the rights of the petitioners are reserved to be argued and pressed after raising objection before the competent Court.

11. During the course of the argument, the learned counsel for the petitioners had submitted that after institution of this Writ Petition on 18th February, 2021, the ordersheet reflects that the matter was adjourned on number of occasions and was not addressed, on merits till date.

12. During the course of argument, the counsel for the petitioners has also produced before this Court the adjournment application of 2nd March, 2021, which he has filed before the Court of Tehsildar, praying to adjourn the matter, and simultaneously his grievance is also from the view point that despite of bringing the fact on record before the Court of Tehsildar about the pendency of the present Writ Petition, his adjournment application was not considered and rather the Tehsildar has wrongfully observed that he has heard the parties on merits on 2nd March, 2021, and has fixed the matter on 03.03.2021, for passing orders on merits, which is the date of today, when this Writ Petition is being argued.

13. I am of the view that the ratio relied by the learned counsel for the petitioners in the light of the two judgments, the reference of which has been made pertaining, to the suo moto cognizance and its ambit will not be attracted in the principle case, which is being considered by the Court of Tehsildar, as of now, once the petitioner himself who was noticed and he was noticed by way publication and has voluntarily chosen not to object the principle proceedings, under Section 34 of Land Revenue Act, 1901, the reflection from the ordersheet of 2nd March, 2021, itself shows that proceedings has culminated, I am of the view that no Writ Petition under the pretext of the ambit of exercise of suo moto powers could be permitted to challenge the subsequent notice, which is impugned in the present Writ Petition, without giving a challenge to the main notices issued in Case No. 3 of 2020-21, and that too now when the matter stands adjudicated.

14. In view of the aforesaid reasons, I do not find any merit in the Writ Petition. Hence, the Writ Petition is dismissed.

(Sharad Kumar Sharma, J.) 03.03.2021 Shiv