Mc Nalagarh Vs the Financial Commissioner (Appeals) and Another

2026:HHC:10065

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No.941 of 2025 Decided on: 02.04.2026 _________________________________________________________________ Municipal Council Nalagarh ....Petitioner

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Versus

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Financial Commissioner (Appeals) and Anr. …Respondents

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________________________________________________________________ Coram_

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Ms. Justice Jyotsna Rewal Dua

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1 Whether approved for reporting? Yes

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_________________________ For the petitioner:	________________________________________ Mr. Dinesh Bhanot, Advocate.
For the respondents:	Ms. Seema Sharma, Deputy Advocate General.

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Jyotsna Rewal Dua, Judge

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Municipal Council Nalagarh feels aggrieved

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against the concurrent orders passed in favour of the respondent-Forest Department by the Settlement Collector, Shimla Division, the Divisional Commissioner, Shimla Division and by the Financial Commissioner (Appeals), Himachal Pradesh. Under these impugned orders, an application moved by the respondent-Forest Department under Section 37 of the Himachal Pradesh Land Revenue Act,

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes

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1954 (the Act in short) seeking correction of existing revenue entries showing M.C. Nalagarh to be in possession of land owned by the State of Himachal Pradesh, has been allowed for reflecting State Forest Department to be in possession of the land.

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2. The case

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2(i). The Divisional Forest Officer, Forest Division Nalagarh on 05.09.2011 moved an application before the Settlement Collector Shimla Division for correction of revenue entries of land bearing old Khata/Khatauni No. 57/71, Khasra No. 291/87 measuring 23-13 bighas corresponding to new Khasra Nos. 1512, 1702, 2457 measuring 7334.11 sq. mtrs, situated at Up Mohal New Nalagarh, Tehsil Nalagarh, District Solan, H.P. The application was moved under Sections 37 and 38 of the Act before the Settlement Collector Shimla Division. The applicant i.e. respondent-Forest Department pleaded there that revenue entries had wrongly and illegally recorded the possession of M.C. Nalagarh over the aforesaid land during settlement of 1998-99. Ever Since 1950-51 and upto 1977-78 the above described land was recorded in ownership of State of Himachal Pradesh and in

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possession of Forest Department with nature of land reflected as ‘banjar-kadim’. On receipt of application, matter was got inquired into by the Settlement Collector. The spot report was that up-till last settlement the land was indeed recorded in the ownership of the State Governemnt and in possession of Forest Department, but on the spot there exists a public park constructed by MC Nalagarh over khasra No. 1702 (2000.75 sq. mtrs) and a two storeys shopping complex constructed by MC Nalagarh over portion of other two khasra numbers denoted by khasra nos. 1512/1 (2460.12 sq. mtrs.) and 2457/1 (912.00 sq. mtrs). The land was never transferred by the Forest Department to M.C. Nalagarh. It appears that in view of existing spot position, the report recommended to continue recording possession M.C. Nalagarh over the land comprised in Khasra Nos. 1512/1 and 2457/1 measuring 3372.12 sq. mtrs .

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The officials of M.C. Nalagarh appeared in witness box to depose that actual possession over the land is that of M.C. Nalagarh. That before raising the shopping complex, M.C. Nalagarh had applied for and was granted permission by

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the Deputy Commissioner, Solan, to fell trees/bushes

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standing over the land parcels. The documents/no objection certificates were produced in this regard.

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The Settlement Collector held that possession of M.C. Nalagarh over the land had been entered wrongly in the revenue record. Accordingly, the application was allowed on 18.09.2015 by directing to record possession of Forest Department over the land in question.

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2(ii). Appeal preferred by M.C. Nalagarh against the above order was dismissed by the Divisional Commissioner, Shimla Division on 18.09.2018. While dismissing the appeal, the Divisional Commissioner held that as per old record, possession of land was with the Forest Department and there was no order of any Competent Authority ordering transfer of possession of the land in favour of M.C. Nalagarh.

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2(iii). Revision Petition preferred by M.C. Nalagarh against the above two orders, was dismissed by the Financial Commissioner (Appeals) H.P. on 11.07.2024 holding as under: -

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“5. Per contra, the Ld. District Attorney (Revenue) appeared on behalf of the respondent, referred to para 5 of the impugned order of the Ld. Commissioner and argued that the Ld. Collector has rightly restored the

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entries of the land in dispute, as were prior to the settlement operations. He further argued that the land in dispute has never been transferred to the petitioner and as such the possession of the petitioner cannot be recorded in the record of rights. Lastly, the Ld. District Attorney argued that the orders passed by the courts below are based on facts and law and no interference of this Court is warranted in this matter. He urged that the present revision petition may be dismissed.

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6. I have considered the arguments put forth on behalf of parties and have gone through the record of the Courts below. It is surprising to see that two Government Departments/bodies are quarreling just for an entry in the record of rights whereas this controversy can be easily resolved by following the procedure laid down by the State Government for the purpose. The Ld. Commissioner has rightly pointed out that the Ld. Collector cannot change possession of the government department on Government land without transfer of such land to the department claiming such entry to be recorded in the record-of-rights. For that purpose, the State Government, in the Revenue Department, has issued instructions vide letter No. Rajsva-D(G)6-24/91, dated 9th July, 1991 and further amended/modified vide letter No.Rev.D.F(G)814/2015, dated 9.02.2016. The proper course of action for that purpose is to follow the procedure laid down in the aforesaid instructions. In the instant case, during the settlement operations, the land in dispute was recorded in the possession of the petitioner, without transfer of the land in favour of the petitioner as per the requirement of aforesaid instructions. Therefore, the Ld. Collector has rightly accepted the

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correction application of the present respondent and vide order dated 18.09.2015, rightly restored the entries of possession in favour of the respondent, as were prior to settlement operations. The Lid. Commissioner, vide his order dated 18.09.2018, passed in Appeal No.326/2016, has also rightly dismissed the appeal of the present petitioner after proper appreciation of facts and law. However, the petitioner is advised to follow the procedure laid down by the State Government for the purpose.”

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2(iv). In the above backdrop, M.C. Nalagarh has

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preferred this writ petition.

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3. Heard learned counsel for the parties & considered the case file.

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4. Consideration

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Application moved under Sections 37 & 38 of the

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Act by the respondent-Forest Department on 05.09.2011 for deletion of revenue entries recording possession of M.C. Nalagarh over the land in question and for substituting it with that of Forest Department, was allowed by the Settlement Collector on 18.09.2015. This order has been affirmed by the Divisional Commissioner on 18.09.2018 and by the Financial Commissioner on 11.07.2024.

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4(i) Chapter IV of the H.P. Land Revenue Act

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containing Sections 32 to 46 is with the heading ‘ Records of rights and Periodical Records’. Sections 32 to 34 provide for preparation of record of rights and read as under: -

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“ 32. Record-of-rights and documents included therein.-

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(1) Save as otherwise provided by this Chapter, there shall be a record-of-rights for each estate.

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(2) The record-of-rights for an estate shall include the following documents, namely:-

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(a) Statements showing, so far as may be practicable:

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(i) the persons who are land-owners, tenants or assignees of land revenue in the estate or who] receive any of the rents, profits in the estate, or who are entitled to the produce of the estate, or to occupy land therein;

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(ii) the nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto; and

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(iii) the rent, land revenue, rates, cesses or other payments due from and to each of those persons and to the Government;

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(b) a statement of customs respecting rights and

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liabilities in the estate;

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(c) a map of the estate; and

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(d) such other documents as the Financial Commissioner may, with the previous sanction of the State Government prescribe.

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(2-A) The record of-rights for sub-estate shall include the documents mentioned in clauses (a), (c) and (d) of sub-section (2) of this section.

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33. Making of special revision of record-of-rights.-

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(1) When it appears to the State Government that a record-of-rights for an estate does not exist, or that the

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existing record-of-rights for an estate requires special revision, it may by notification direct that record-of-rights be made or that the record-of-right be specially revised, as the case may be.

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(2) The notification may direct that record-of-rights shall be made or specially revised for all or any estates in any local area.

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(3) A record-of-rights made or specially revised for an estate under this section shall be deemed to be the record-of-rights for the estate, but shall not affect any presumption in favour of the State, which has already arisen from any previous record-of-rights.

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(4) The record-of-rights to be made or specially revised shall be done in the manner prescribed.

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(5) When a District or a part thereof for making of special revision or record-of-rights and assessment of land revenue, is in process, the duty of preparing and maintaining of record-of-rights shall be transferred to the Settlement Collector who shall exercise all the powers of the Collector under this Act.

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(6) When the record-of-rights are made or specially revised, the same shall be published within the estate in the manner prescribed.

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(7) If any party interested to filed objections, against any entry in the records within a period of 30 days, the same shall be decided by the Revenue Officer within a period of one month and after giving effect to the orders of the Revenue Officer, if any, in the record-of-rights of the estate, the record shall be finally published within the estate in the manner prescribed.

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(8) After the final publication of the record-of -rights under subsection section (7), the settlement patwari shall

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supply to every persons a copy of measurement Jamabandi and Tatima of newely measure Khasra numbers of his holding free of cost:

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(9) As soon as the work of making or special revision of record-of rights and assessment of land revenue of an estate is over, a notification shall be issued declaring the making or revision of record-of-rights, as the case may be, to be closed.

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34. Periodical record.-

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(1) The Collector shall cause to be prepared by the Patwari of each estate yearly, or at such other intervals as the Financial Commissioner may prescribe, an edition of the record-of-rights amended in accordance with the provisions of this Chapter.

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(2) This edition of the record-of-rights shall comprise the statements mentioned in sub-section (2) clause (a), of section 32 and such other documents, if any, as the Financial Commissioner may, with the previous sanction of the State Government, prescribe.

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(3) For the purposes of the preparation of the periodical record under this section, the Collector shall cause to be kept up by the patwari of each estate a register of mutations and such other registers as the Financial Commissioner may prescribe. ”

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Presumption of truth is attached to entries in

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record of rights provided as under in Section 45 of the Act:-

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“ 45 . Presumption in favour of entries in records-of-rights and periodical records.-

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An entry made in a record of rights in accordance with the law for the time being in force, or a periodical record in

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accordance with the provisions of this Chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor:

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Provided that notwithstanding anything contained in this section any entry made 3 in the areas comprised in Himachal Pradesh immediately before 1st November, 1966 during the period between the first day of ‘April, 1948 and the first day of April, 1956 in records of rights or in a periodical record whereby the land is shown as under self cultivation shall not be presumed to be true”

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Provisions of Chapter IV of the Act came up for

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consideration in Partap Singh (dead) through legal representatives and others Vs. Shiv Ram (dead) through legal representatives² and were discussed as

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under:-

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“16. As per Section 32(2)(a) of the 1954 Act, record-of-rights i.e. jamabandi, shall include the name of persons who are landowners, tenants or assignees of land revenue and also the rent, land revenue, rates, cesses or other payments due from and to each of those persons and to the Government. On the other hand, the periodical record i.e. khasra girdawari, as mentioned in Section 34 of the 1954 Act, is to be prepared every year as the proof of the statements, as mentioned in sub-section (2) clause (a) of Section 32, which includes the name of the landowners, tenants and the rent and land revenue payable. In terms of Section 45 of the 1954 Act, the record-of-rights as prepared in terms of Sections 32 and 34 of the 1954 Act

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2 (2020) 11 SCC 242

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carries a presumption of truth. Still further, any person who is aggrieved by any entry in the record-of-rights or in a periodical record has a right to invoke the jurisdiction of the civil court for correction of the entries in terms of Section 46 of the 1954 Act.

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17. The detailed procedure for recording of periodical record-ofrights as well as the record-of-rights in terms of Sections 32 and 34 of the 1954 Ăct has been prescribed. The record-of-rights contains entries of the revenue record for the four years. Such record-of-rights carries the presumption of correctness in terms of Section 45 of the 1954 Act and also Section 35 of the Evidence Act, 1872(for short "the Evidence Act"). Section 109 of the Evidence Act further contemplates that whether there exists a relationship of landowner and tenant and the burden of proving such a relationship is on the person who affirms it.

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18 & 19…….

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20. The present is a case where no relationship of landlord and tenant is mentioned in the revenue record though required in terms of Section 32(2)(a) of the 1954 Act. In the absence of entry in the revenue record, which is also expected to contain the entry of rent and possession, the tenancy cannot be treated to be in existence only on the basis of oral evidence of the witnesses examined by the defendant. The burden of proving the relationship was on the defendant. Such burden cannot be said to be rebutted only by oral evidence. The witnesses may lie but the documents do not, is a golden rule. The presumption of truth attached to the revenue record can be rebutted only on the basis of evidence of impeccable integrity and reliability. The oral evidence can always be adduced contrary to the revenue record but such oral testimony will not be sufficient to hold that the statutory presumption

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stands rebutted.

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21 to 24……………..

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25. The presumption of truth attached to the revenue record can be rebutted if such entry was made fraudulently or surreptitiously (Vishwa Vijay Bharati Vs. Fakhrul Hassan³ case) or where such entry has not been made by following the prescribed procedure (Bhimappa Channappa Kapali v. Bhimappa Satyappa Kamagouda⁴ ). Even in Guru Amarjit Singh Vs. Rattan Chand⁵ , where thirty years' old lease deed was produced, this Court had not accepted the proof of the relationship between landowner and tenant in absence of receipt of payment of rent.

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26. Therefore, we find that the presumption of truth attached to the record-of-rights can be rebutted only if there is a fraud in the entry or the entry was surreptitiously made or that prescribed procedure was not followed. It will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence vis-à-vis documentary evidence is at a much weaker level.”

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Jamabandi is part of record of rights under

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Section 32. Jamabandi in turn is a document that evidences several factors, including ownership of land, possession over land, area of land, survey numbers of the land, location of land, nature of the land, revenue payable etc. etc. Section 35 onwards lay down the procedure for making records. Section 37 provides for determination of disputes in respect of any

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3 (19176)3 SCC 642

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4 (2012)3 SCC 759: (2014) 5 SCC (civ) 419

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5 (1993)4 SCC 349: AIR 1994 SC 227

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entry in the record:-

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“ 35 . Making of that part of the periodical record which relates to land-owners etc. assignees of revenue and occupancy tenants.-

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(1) Any person acquiring by inheritance, purchase, mortgage, gift or otherwise, any right in an estate as a land-owner etc. assignee of land revenue, or tenant having a right of occupancy, shall report his acquisition of the right to the patwari of the estate

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(2) If the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the patwari

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(3) The patwari shall enter in his register of mutations every report made to him under sub-section (1) or sub-section (2) and shall also make an entry therein respecting the acquisition of any such rights as aforesaid which he has reasons to believe to have taken place, and of which a report should have been made to him under one or other of those subsections and has not been so made.

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(4) No Revenue Court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession until such person has made the report required by this section.

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(5) A Revenue Officer shall from time to time inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which under the foregoing sub-sections, report should have been made to the patwari and entry made in that register and shall in

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each each case make such order as he thinks fit with respect to the entry in the record of the right acquired.

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(6) Such an entry shall be made by the insertion in that record of a description of the right acquired and by the omission from that record of any entry in any record previously prepared which by reason of the acquisition has ceased to be correct.

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(7) The Revenue Officer shall afford an opportunity of being heard to all the interested parties and also all the co-sharers in a joint holding in a mutation proceedings. After proper identification of the parties he shall get affixed signatures of all the parties present. If any party is illiterate, then the the Revenue Officer shall get the thumb impression of such party affixed on the foil (Parat sarkar) of the mutation.

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37. Determination of dispute.-

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(1) If during the making, revision or preparation of any record or in the course of any enquiry under this Chapter, a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue Officer may of his own motion or on the application of any party interested, but subject to the provisions of the next following section and after such inquiry as he thinks fit, determine the entry to be made as to that matter.

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(2) If in any such dispute the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain through the Gram Panchayat constituted under the Himachal Pradesh Panchayati Raj Act, 1994 (Act No. 4 of 1994) or any other agency so prescribed by the Financial

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Commissioner or by summary inquiry who is the person best entitled to the property and shall by order direct that, that person be put in possession thereof, and that an entry in accordance with that order, be made in the record or register.

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(3) A direction of a Revenue Officer under subsection (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.

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38.

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Restrictions on variations of entries in records.-

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Entries in records-of-rights or in periodical records, except entries made in periodical records by patwaries under clause (a) of section 36 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by

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(a) making entries in accordance with facts proved or admitted to have occurred; (aa) making entries in respect of Government land in accordance with the order made by the State Government or by a Revenue Officer not below the rank of the Collector;

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(b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties; and

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(c) making new maps where it is necessary to make them.”

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4(ii). It is the pleaded case of the respondents Forest

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Department that khasra nos. 1512, 1702 and 2457 measuring 7334.11 sq. meters were shown in possession of the Forest Department as per ‘fard jamabandi’ for the year 1950-51, 1954-54, 1958-59 and 1977-78. According to the

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respondent, revenue entries were wrongly & illegally altered to show name of M.C. Nalagarh in column of possession during settlement of 1998-99.

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4(iii) Pertinently it is the case of the Petitioner-M.C.

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Nalagarh that multi storied shopping complex, parking, Yatri Niwas and Parks have been constructed by it at costs of approximately Rs. 1.65 Crores over the land parcels in question. It is the case set up by the petitioner-M.C. Nalagarh that for the aforesaid construction of the shopping complex, Government of India contributed Rs. 48 lacs and 32 lacs were borne by the State Government. Remaining cost of

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the project is said to have been shared by the Municipal Council Nalagarh from its financial resources. According to the respondent-Forest Department, construction by MC Nalagarh over the land parcels in question is irrelevant for correction of revenue entry. That contribution of money either by the Government of India or by the State Government, would only signify waste of money by raising construction over forest land in an illegal manner. The respondent-Forest Department further goes on to plead that permission, if any, accorded by the Deputy Commissioner, Solan in favour of MC

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Nalagarh for felling of trees/bushes over the land in question is of no consequence, as the land was Demarcated Protected Forest and no permission was taken by MC Nalagarh from Ministry of Forest. Land was not transferred to MC Nalagarh. Forest Department never gave its consent for diversion of the land to MC Nalagarh.

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4(iv). The object of making entries in the column of possession in ‘Jamabandi’ is to reflect and depict the status over the land including possession thereof as it exists on the spot. There is no dispute between the parties that possession over the land in question ever-since 1998-99 is that of Municipal Council Nalagarh. That being the admitted position, the revenue entries recorded during the settlement of 1998-99 reflecting possession of Municipal Council Nalagarh over the land in question could not be faulted. These entries depicted the correct spot position. There is no justification for ordering recording the possession of Forest Department over the land in question, when Forest Department is admittedly not in possession of the land, now for the last about 30 years. Revenue entries of possession in favour of a person (kabij) do not validate the possession if it is

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otherwise illegal. The entries, however, only reflect as to who is actually in possession. In case the land in question belongs to Forest Department, as has been asserted by the respondent-Forest Department, it is for the Forest

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Department to take back the possession of the land in accordance with law. By way of correction of revenue entries, Forest Department cannot get back the possession of land. The revenue entries reflecting possession of MC Nalagarh over the land are in conformity with the spot position. The instructions relied upon by the revenue authorities pertain to transfer of government land in accordance with law from one department to the other. These do not apply to fact situation and controversy involved in the case. It is not the case of the respondents that Municipal Council Nalagarh is reflected as owner of the land. The land has still been shown under the ownership of the State in column of ownership in the jamabandi.

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5. In view of above, impugned orders passed by the Settlement Collector Shimla Division dated 18.09.2015 & affirmed by the Divisional Commissioner, Shimla Division on 18.09.2028 and by the Financial Commissioner (Appeals),

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Himachal Pradesh vide order dated 11.07.2024, are set aside. It is, however, for the respondent-Forest Department to take appropriate action in accordance with law for getting back the possession of land from MC Nalagarh. It is also clarified that in passing this order, the validity or legality of possession of MC Nalagarh over the land in question has not been gone into. All rights and contentions of the parties are left open in that regard. This order has been passed in peculiar facts, where possession of MC Nalagarh over the land in question, now for past about 30 years has been acknowledged and established on record.

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The present writ petition to stand disposed of in the above terms. Pending miscellaneous application(s), if any, also to stand disposed of.

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Jyotsna Rewal Dua Judge

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April 2, 2026 R.Atal

Mc Nalagarh v. the Financial Commissioner (Appeals) and Another

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Mc Nalagarh v. the Financial Commissioner (Appeals) and Another

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