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1998 DIGILAW 73 (HP)

MAST RAM v. STATE OF H. P.

1998-05-25

KAMLESH SHARMA, LOKESHWAR SINGH PANTA

body1998
JUDGMENT KAMLESH SHARMA, A.C.J—The petitioner is aggrieved by the order dated 11.10.1993 passed by the Sub-Divisional Officer (Civil), Rampur Division, whereby land measuring 10-5 Bighas comprised in Khasra No. 1251/16 situated in Chak Khaneti, Tehsil Kumarsain, District Shimla, was granted in favour of respondent No. 3 by way of Nautor on payment of Nazrana Rs. 512.50 paise and price of trees Rs. 2,245.50 which stood already deposited by him on 7.6.1976 in the Government treasury and Patta issued in his favour. 2. This case has a chequered history. We shall start from the judgment dated 29.5.1991 in C.W.R No. 339 of 1981 titled Mast Ram v. State of HP. and others. While allowing the writ petition, the Division Bench of this Court issued the following directions: "According to the averments made in the writ petition, the 3rd respondent was not eligible for grant of land under the rules. In the reply filed in the present writ petition by the 3rd respondent, assertions have been made suggesting that even the petitioner was not entitled to be considered for the grant. We are not inclined to go into this aspect of the matter, for, we feel that the appropriate authority should consider the merits of the matter, in the first instance, as per the directions contained in the order dated February 9, 1978 (Annexure D to the writ petition). The appropriate authority would be the Sub-Divisional Officer (C), Rampur We direct him to do so, after notice not only to the petitioner and the third respondent, but also to the Forest Department, which had initially raised an objection to the grant of this land under the rules. He shall do so without delay and take a decision, as far as possible, within three months of the date when any of the parties to the present petition files an application with that request with a copy of this judgment." 3. As per these directions, the Sub-Divisional Officer (C)f Rampur, was required to consider the merits of the matter as per the directions contained in the order dated 9.2.1978 passed by the Additional Deputy Commissioner, Shimla (Annexure D’ to the said writ petition, now Annexure P-C) after giving notice to the parties besides the Forest Department which had initially raised an objection to the grant of the land in dispute under the Rules. In the said order, the Additional Deputy Commissioner has held as under: "The above discussion leads me to conclude that the entire record mentioned in the form of Misal Band Register and the receipt register is not reliable and as such the exact date of receipt of application in both these cases cannot be ascertained. It is correct that the mere fact of mentioning date on application is not sufficient to establish the date on which the particular application was received in the appropriate court but in this case circumstantial evidence and the record becomes conflicting. In view of this, the exact date for receipt cannot be ascertained. The basic omission committed in the lower Save! is in the consideration of these two applications separately. In fact when they were processed in the field together the applications should have been decided by considering the merits on both the case simultaneously and deserving of the two should have been granted the nautor, In view of these facts, I hereby remand back the case to the Sub -Divisional Officer (C), Rampur, for fresh decision on merit He will reconsider the report of the Forest Department as to whether He piece of land applied for is fit to be allotted if so, the merit of both the applications be considered simultaneously for allotment and deserving of the two be granted nautor..." 4, A perusal of the above direction leaves no doubt that the applications of the petitioner as well as respondent No 3 were required to be decided on merits simultaneously and deserving of the two should have been granted the Nautor. The Sub-Divisional Officer (C), Rampur was aiso required to reconsider the report of the Forest Department whether the piece of land applied for was fit to be allotted. The Sub-Divisional Officer (C), Rampur was aiso required to reconsider the report of the Forest Department whether the piece of land applied for was fit to be allotted. But in the impugned order dated 11.10.1993 we find that ignoring the clear direction of the Additional Deputy Commissioner contained in his order dated 9.2.1978, the Sub-Divisional Officer (C) Rampur has again decided the matter in favour of respondent No. 3 by saying that hi application was received prior to the petitioner Instead of judging the merits of respective case of the petitioner and respondent No. 3., the Sub-Divisional Officer (C), Rampur, has taken into consideration and accepted the stand of respondent No, 3 that since the initial grant made In his favour he had planted an orchard in the land in dispute by incurring heavy expenditure. it is aiso found that respondent No. 3 has been living separately from his father having only 6-2 Bighas of land in his possession whereas the petitioner has been living in a joint family with his brothers having total holding of 26.17 Bighas. The Sub-Divisional Officer (C) Rampur has failed lo consider the most important aspect that respondent. No. 3 was no! eligible for grant of Nautor. 5. Rule 7 of the H.P Nautor Land Rules (hereinafter called the Rules) prescribes the eligibility for the grant of nautor land. It is. "Eligibility for Nautor Land,—Save for the widow and the children of an armed force of semi-armed force, who had laid down his life for the country (whose widow and children will be eligible for grant anywhere within the Tehsil subject to the conditions mentioned in the Wajib-u-arz in respect of the areas where the land applied for is situated) no one who is not the resident in the estate in which the land applied for is situate, shall be eligible for the grant. Every resident of the estate in which land applied for lies will be eligible in the following order of preference: (a) such person who has less than ten bighas of land whether as owner, or as tenants, or as lessees, either individually or collectively, or have an income of less than Rs. 2,000A per annum from all sources including lands. Provided that in this category a dependent of one who had laid down his life for the defence of the country shall get preference over his counterparts..." 6. 2,000A per annum from all sources including lands. Provided that in this category a dependent of one who had laid down his life for the defence of the country shall get preference over his counterparts..." 6. Interpreting clause (a) Rules 7 of the Rules, which provides for such persons who have less than 10 Bighas of land or have an income of less than Rs. 2,000/- per annum from all sources, including lands, will be eligible for the grant of Nautor, the learned Judges of the Supreme Court have held (in para 6) in Gopinder Singh v. The Foresh Department of Himachal Pradesh, AIR 1991 SC 433, that : "6. We have carefully examined the provisions of clause (a) of R. 7 reproduced above. The clause reads "such person who have less than 10 Bighas of land...... or have an income of less than 2,000/- per annum from all sources including lands." There is thus inherent evidence in the clause itself to show that the two parts cannot be read disjunctively. The second part makes it clear that an income of less than Rs. 2,000/- per annum should be from all sources including lands. It is thus obvious that a person who had got less than 10 bighas of land but has an income of more than Rs. 2,000/- from the said land is not eligible for allotment of nautor land under clause (a). Even otherwise, if we interpret the clause the way learned Counsel for the appellant wants us to do, it would produce absurd result. A person having two bighas of land but otherwise earning Rs. 20,000/- per annum would be eligible for allotment of nautor land if we accept the appellants interpretation. The object of granting nautor land under the rules is to help poor and unprovided for residents of Himachal Pradesh. Considering the nature, scope and clear intention of the framers of the Rules it is necessary to read the word "or" in between the first and the second part of clause (a) as "and". The appellants income was admittedly more than Rs. 2,000/- per annum and as such his claim for nautor land was rightly rejected." 7. Considering the nature, scope and clear intention of the framers of the Rules it is necessary to read the word "or" in between the first and the second part of clause (a) as "and". The appellants income was admittedly more than Rs. 2,000/- per annum and as such his claim for nautor land was rightly rejected." 7. In view of the above law laid down by the Supreme Court in case of Gopinder Singh, AIR 1991 SC 433, regarding eligibility for grant of Nautor land, a person should have both, land less than 10 Bighas and annual income of less than Rs. 2,000/- from all sources including land. Applying this law to the facts of the present case, respondent No. 3 might have less than 10 bighas of land but his income was much more than Rs. 2,000/- per annum as, admittedly, he was working as a lecturer in a Government college at the time he had applied for the grant of the land. The learned Counsel appering for respondent No. 3 has urged that in exercise of the extra-ordinary jurisdiction vested in it under Articles 226 and 227 of the Constitution of India, this Court will not go into a disputed question of fact that what was the income of respondent No. 3 at the time he had applied for grant of Nautor. We do not find any substance in this submission in view of Para 3 of the reply affidavit of respondent No. 3 wherein it is categorically stated that he was getting an amount of Rs. 551/- per month as Lecturer which comes to Rs. 6,612/- per annum. In view of this, respondent No. 3 was not eligible for grant of nautor land. 8. 551/- per month as Lecturer which comes to Rs. 6,612/- per annum. In view of this, respondent No. 3 was not eligible for grant of nautor land. 8. Another submission raised by the learned Counsel for respondent No. 3 that this Court should not entertain the present petition as an alternate efficacious remedy byway of appeal is available to the petitioner, also deserves to be rejected in view of the peculiar facts and circumstances of this case that the parties have been litigating since 1974 and despite the orders dated 9.2.1978 passed by the Additional Deputy Commissioner, Shimla, and remand order dated 30.12.1976 passed by the Financial Commissioner, Himachal Pradesh, the land in dispute was granted by way of Nautor to respondent No. 3 by the Sub-Divisional Officer (C) Rampur on 17.2.1981 and the petitioner had to again file an appeal before the Deputy Commissioner but failed. Thereafter, he was compelled to approach this Court in C.W.P. No. 339 of 1981 and despite clear directions of this Court in its judgment dated 29.5.1991 the land in dispute was granted in favour of respondent No. 3 by way of Nautor. This is the second round of litigation so far this Court is concerned and the way authorities have dealt with this matter so far, no useful purpose will be served by remanding the matter to them again, more so, when all the requisite facts are before this Court. 9. We also find that the Sub-Divisional Officer (C), Rampur, has not taken into consideration that 3 trees of Deodar, 11 trees of Kail and 1 tree of Mora Salva, total 15 trees, besides saplings of 4 Deodar and 1 Kail tree were standing on the land in dispute measuring 10.5 Bighas for which reason it was not a fit piece of land to be allotted either to respondent No. 3 or the petitioner. We find that the reply on behalf of the State of Himachal Pradesh has been filed on the affidavit of the Sub-Divisional Officer (C), Rampur, who had passed the impugned order, who has tried to support his order by giving all the possible arguments in favour of respondent No. 3. Therefore, the reply on behalf of the State of Himachal Pradesh is not by the proper authority and is of no assistance even in respect of the stand of the Forest Department. Therefore, the reply on behalf of the State of Himachal Pradesh is not by the proper authority and is of no assistance even in respect of the stand of the Forest Department. However, from the order dated 9.2.1978 of the Additional Deputy Commissioner we find that the Forest Department had recommended the rejection of the application of the petitioner in view of the fact that 17 Deodar and Kail trees were standing thereon. In view of this, we need not go into the claim of the petitioner that the land in dispute may be granted to him by way of Nautor. 10. In the result, we accept this writ petition and set aside the impugned order dated 11.10.1993 passed by the Sub-Divisional Magistrate (C), Rampur granting the land in dispute in favour of respondent No. 3 but the prayer of the petitioner for granting the said land by way of Nautor in his favour can also not be accepted in view of the forest trees standing thereon. In this view of the matter, the Patta in respect of the land in dispute granted in favour of respondent No. 3 is of no consequence as the initial grant made in his favour was void because of his ineligibility for the grant. Therefore, the State of Himachal Pradesh is directed to take possession of the land in dispute from respondent No. 3 and keep it as forest land in view of the number of trees standing thereon. There is no order as to costs. Petition allowed.