STATE OF H. P. v. JEET SINGH — 1999 DIGILAW 154 (HP)

JUDGMENT 1. This is an appeal against the judgment and decree dated 13-9-1993 passed by the learned Addl. District Judge, Solan, camp at Nalagarh, whereby the judgment and decree Judge 1st Class, Nalagarh has been set aside and the suit of the plaintiff has been decreed. 2. The brief facts, leading to the presentation of this appeal are that the respondent-plaintiff (hereinafter referred to as the respondent) in-1 Judge, Nalagarh for declaration that he is the owner of the land comprising Khasra No.390/191, measuring 1-3-0 bigha, Khewat/Khatauni No. 32/44 situated in village Bhatoli, Teh-Nalagarh, Dist. Solan (hereinafter referred to as the suit land) and the order of the Commissioner (A.D.M., Solan) in Case No. 226/1984 dated 29-8-1985 is legal, null and void, with the consequential relief of permanent injunction restraining the appellant defendant (hereinafter referred to as the defendant) from dispossessing him from the suit land and also from interfering in his possession over the suit land and if dispossessed, a decree for possession of the said land The case of the plaintiff as made out in the plaint H.P. Village Common! Lands Vesting and Utilisation Act, 1974 (hereinafter referred to as the Act) and the H.P. Village Common Lands Vesting and Utilisation Scheme, J 1975(hereinafter referred to as the Scheme), as being a landless person he was eligible for the same and Patta was duly granted to him on 27-M 1975 and he deposited the Nazrana as assessed under the rules and thereafter he is in the cultivating possession of the suit land. It has further been claimed that the plaintiff was eligible for allotment as his holding was less than 5 bighas and to make up he deficiency, the suit land was allotted to him. He has thereafter spent about Rs. 6000/- in making the km cultivable without any objection from any quarter and within the knowledge of the defendant. However, the Commissioner (A.D.M., Solan) cancelled the allotment vide his order dated 29-8-1985 which order is illegal, with out jurisdiction and having no effect on the right was estopped to challenge f the ownership of the plaintiff by his act and conduct. In the first week of September, 1989, halqua Patwari threatened to dispossess the Plaintiff pursuant to the said illegal order. Hence the Present suit. 3. In the first week of September, 1989, halqua Patwari threatened to dispossess the Plaintiff pursuant to the said illegal order. Hence the Present suit. 3. The defendant contested the suit by raising the Preliminary objections, that the suit is not maintainable; that the court of Sub Judge was not competent to try the suit; that the suit is bad for want of notice under Section 80, CPC; that the plaintiff has no locus standi to file the suit and that there was no cause of action in favour of the plaintiff. On merits, the allotment of the suit land in favour of the plaintiff has been admitted but it has been averred that the plaintiff got the allotment done in his favour in a mala fide manner by misrepresenting the facts before the Revenue Officer and by fraudulent means. In fact he was not eligible for allotment as he was an employee in the Army at the relevant time and his income exceeded Rs. 3,000/- at that time and he owned land measuring 4.4bighas. Therefore, the Commissioner (A.D.M.) was and is fully competent to cancel such a grant which he has done vide order dated 29-8-1985. It is also claimed that the plaintiff is out of possession and the suit land is in the peaceful possession of the State. 4. The plaintiff filed replication wherein the grounds of defence as lien in the written statement were denied and the averments as made in the plaint were reaffirmed. 5. On the pleadings of the parties, the learned Sub Judge framed the following issues : 1. Whether the order dated 29-8-1985 in Case No. 26/84 passed by ADM, Solan, is illegal, void and without jurisdiction, as alleged? OPP. 2. Whether the plaintiff is owner in possession of the suit land as alleged? OPP. 3. Whether the plaintiff has made the improvement to the knowledge of the defendant, if so, its effect? OPP. 4. Whether the defendant is estopped to challenge the title of the plaintiff as alleged? OPP. 5. Whether the suit of the plaintiff is not maintainable? OPD. 6. Whether the plaintiff has no cause of action? OPD. 7. Whether the Court has no jurisdiction? OPD. 8. Whether suit is bad for want of notice under Section 80, CPC? OPD. 9. Relief. 6. After recording the evidence for the parties and hearing them, the learned trial Judge decided issues Nos. OPD. 6. Whether the plaintiff has no cause of action? OPD. 7. Whether the Court has no jurisdiction? OPD. 8. Whether suit is bad for want of notice under Section 80, CPC? OPD. 9. Relief. 6. After recording the evidence for the parties and hearing them, the learned trial Judge decided issues Nos. 1 to 4 against the plaintiff, Issues 5 and 6 in favour of the plaintiff and issues 7 and 8 against the dependent. As a result of the findings, the suit was dismissed. 7. Feeling aggrieved, the plaintiff preferred am appeal which was heard and decided by the learned Addl. District Judge, Solan, camp at Nalagarh by the impugned judgment whereby the appeal was allowed and the judgment and decree passed by the learned Sub Judge was set aside and the suit of the plaintiff was decreed. 8. Feeling aggrieved, the dependent-State has preferred the present appeal. 9. I have heard the learned Counsel for the parties. 10. This appeal has been admitted for hearing on the following substantial questions of law : 1. Whether the suit is not within limitations as the order of the A.DM, was not challenged within one year as envisaged under Article 100 of the Limitation Act? 2. Whether revisional power can be exercised at any time? 11. Since question No. 1 supra can be adequately dealt with after the determination of Question No. 2 supra because such determination will have material bearing on question No. 1, therefore, 2nd question-is first taken up for decision. 12. It was contended for the defendant that there is no time limit for revision of an order of allotment of land to a person which allotment may be subsequently found wrong. Such order can be revised at any time in view of the provisions of para 13(4) of the Scheme. On the other hand, the learned Counsel for the plaintiff has argued that the powers of revision must be exercised within some reasonable time. 13. Such order can be revised at any time in view of the provisions of para 13(4) of the Scheme. On the other hand, the learned Counsel for the plaintiff has argued that the powers of revision must be exercised within some reasonable time. 13. Para 13(4) of the Scheme reads as follows : "13(4) if at any time, it comes to the notice of the Commissioner either through an application made by any person or otherwise that the allotment of any land under this Scheme was made to a person who was not entitled or eligible for such allotment or the allotment was wrong on any grounds, he may call for the record of the case and after making such enquiries as he thinks proper either in person or through a Revenue Officer subordinate to him and after giving an opportunity to the parties concerned, he may cancel the grant of land and make such other orders in connection therewith as he deems necessary in the circumstances of the case." 14. A plain reading of the above makes it clear that the period of limitation to exercise the powers of revision under the above provision has not been prescribed. However, to hold that such powers may be exercised for indefinite time will be contrary to the general intendment of law of limitation. With the passage of time, the allottee may make considerable improvements on the allotted land and it will be highly unreasonable to cancel the allotment in his case after lapse of considerable period from the date of allotment. Therefore, such powers have to be exercised within reasonable time. The question, therefore is as to what should be the reasonable period within which such powers may be exercised. 15. A Full Bench of this Court in Mangheru v. State of Himachal Pradesh, AIR 1982 Him Para 1, while dealing with a similar question which had arisen in view of the provisions of Rules 29 and 30of H.P. Nauter Land Rules, 1968 respectively providing for review and revision of orders under the said Rules "at any time" has held as under: "Now, there is no dispute that the peculiar facts and circumstances of each case should determine a reasonable time. For example, if a grantee has suppressed material facts or has obtained the allotment by applying a fraud or a deception the reasonable time will have to be determined with reference to the time when the fraud or deception came to light. Various cases where a party had concealed material facts and succeeded in obtaining the allotment have come to our notice. We cannot allow a party to reape the fruits of his deception or fraud simply on the ground that it had successfully kept them concealed over a sufficiently long period of time. However, once the fraud is uncovered then action is required to be taken within a reasonable time thereafter. Article 56 of the Limitation Act lays down a limitation of three years from the date of knowledge of fraud and we are of the opinion that it will be reasonable to lay down that ordinarily within a period of three years from the date of knowledge of fraud the suo moto powers can be exercised. It was further held : "We are, therefore, of the opinion that ordinarily a period of three years should be considered reasonable for exercising the powers of review or revision when the grantee had not played a fraud or deception in obtaining the grant." 16. It may be pointed out that the purpose of the Nauter Rules supra and Scheme are almost similar and the provisions therein providing foil revision are intended to achieve almost similar purpose and the result will in both cases have bearing on the land already granted/allotted under the said Rules/Scheme with similar consequences. The only major distinction between the two is that under the Nauter Rules, land can be granted even to a middle class agriculturist and landless persons. Therefore, the reasonable time for the purpose of revision under para 13(4) of the said Scheme can be reasonably said to be the same as determined by the Full Bench of this Court in the case supra. 17. Therefore, the reasonable time for the purpose of revision under para 13(4) of the said Scheme can be reasonably said to be the same as determined by the Full Bench of this Court in the case supra. 17. It will, therefore, be reasonable to hold that the powers of revision under para 13(4) of the Scheme can be exercised within three years of the date of order of allotment in cases where the allotment is made without misrepresentation, fraud or deception having been played by the allottee and in case the allottee had procured the allotment by misrepresentation, a fraud or deception, such powers can be exercised within a period of three years from the date of knowledge of misrepresentation, fraud or deception and not at any time beyond the aforesaid period. 18. In the case in hand the case of the defendant as pleaded in the written statement is that the plaintiff procured the allotment of the suit under the scheme by misrepresenting the facts in the mala fide manner and fraudulent means and that at relevant time he was an employee and his income exceeded Rs.3000/- and owned land measuring 4-4-0 bighas. 19. To appreciate the plea, it may be appointed out here that the under the said Scheme the process for allotment of land to the eligible I person could be initiated in two ways viz. (1) on an application by the person claiming to be eligible for such allotment and (2) suo motu by the Tehsil Revenue Officer as provided in para 3 of the scheme. 20. In this case, there is no evidence whatsoever to find out as to whether the process for allotment of land to the plaintiff started on the application or was initiated by the Tehsil Revenue Officer suo motu. Further, there is no evidence to show that any misrepresentation was made or fraud or deception was played by the plaintiff. Further, there is nothing on the record as to when the defendant acquired knowledge of alleged misrepresentation, fraud, if any. The order passed by the Commissioner (ADM) in revision, Ex.P.3 does not disclose that it was the plaintiff who had made any misrepresentation or committed any fraud or deception in securing the allotment. The plaintiff while appearing as his own witness (PW3) in his cross-examination had denied the suggestion that he secured the allotment by making wrong statement. The order passed by the Commissioner (ADM) in revision, Ex.P.3 does not disclose that it was the plaintiff who had made any misrepresentation or committed any fraud or deception in securing the allotment. The plaintiff while appearing as his own witness (PW3) in his cross-examination had denied the suggestion that he secured the allotment by making wrong statement. A suggestion denied is no evidence. It has not been suggested to the plaintiff that he played fraud or deception. Therefore, the period of three years to revise the allotment started running from the date of such order i.e.27-9-1975. It is nobodys case that the reference for revision was made on or before26-9-1978. What can be said is that the revision before the commissioner was instituted on 11-6-1984 as mentioned in the Copy of order Ex.P3. Thus, 5ythe time the proceedings in revision was initiated, the allotment had become more than 8 years old, therefore, revisional powers to interfere nth the allotment could not have been exercised for failure to exercise such powers within three years. Thus, the order Ex.P3 having been passed years after the expiry of the reasonable period, within which such powers could have been exercised. The order Ex. P-3 cancelling the allotment is, therefore, bad in law. 21. On the question of limitation, the contention of the learned Addl. Advocate General is that in view of Article 100 of the Limitation Act, the suit for cancellation of the order Ex. P-3 ought to have been filed within lone year of such order whereas the present suit had been filed after more than 4 years of the passing of such order. 22. The learned Counsel for the plaintiff has submitted that it was lot necessary for the plaintiff to challenge an illegal order within the period 6f limitation prescribed under Article 100 and he could wait till the enforcement of such order which would have given him a cause of action. 23. The prescribed period of limitation to institute a suit to set aside border as in hand is one year from the date of order as provided under Article 100 of the Schedule to the Limitation Act. 23. The prescribed period of limitation to institute a suit to set aside border as in hand is one year from the date of order as provided under Article 100 of the Schedule to the Limitation Act. However, when the order is illegal, the plaintiff would not be bound to file the suit to set it aside but lean wait until it was enforced against him and the attempt to enforce it against him would give him a good cause of action and limitation would run from the date of such attempt/enforcement. 24. While dealing with a question of limitation to assail legal order, privy Council in Laxmanrao Madhavrao Jahagirdar v. Shriniwas Lingo Nadgir, AIR 1927 PC 217, held as follows : "As regards the other part of the case, as to which their Lordships unfortunately have not had the advantage of hearing arguments on behalf of the respondents, they are unable to agree with the ruling of the learned Chief Justice that the plaintiff is barred by limitation from suing for a return of the contribution levied on him, and for a declaration that the suit lands in his possession are not liable for such a contribution because he failed to file a suit to set aside the order imposing it within the period limited for filing such a suit. In their Lordships opinion, if the order was illegal, the plaintiff was not bound to file a suit to set it aside, but was entitled to wait until it was enforced against him, and the attempt to enforce it against him gave him a good cause of action which was admittedly within time." 25. In this case, the plaintiff claims that he had no notice of the revision, he is in possession of the suit land and that cause of action arose to him in the first week of September, 1989 when the Halqua Patwari threatened to dispossess him pursuant to the illegal order Ex. P-3. PW-3 Ajit Singh plaintiff has stated that on allotment, he was put in possession of the suit land and since then he is in possession thereof. It has not been suggested to him in cross-examination that he had been dispossessed from the suit land. The latest copy of jamabandi Ex. P-1 shows that the land in suit in his possession. PW-3 Ajit Singh plaintiff has stated that on allotment, he was put in possession of the suit land and since then he is in possession thereof. It has not been suggested to him in cross-examination that he had been dispossessed from the suit land. The latest copy of jamabandi Ex. P-1 shows that the land in suit in his possession. Though there is a note in the remarks column that vide mutation No. 272 the ownership of the land had been changed in the name of H.P. Government but mere change of ownership does not mean dispossession/eviction. The entries in the Khasra Girdawari Ex. P-2 till 17-3-1989 show the suit land in the cultivating possession of the plaintiff. There is no evidence whatsoever to prove that the plaintiff has been dispossess from the suit land. Therefore, the order Ex. P-3 being illegal and the plaintiff, being in possession of the suit land, could institute the present suit when he was threatened to be dispossessed pursuant to the said illegal order. The plaintiff in his statement has stated that he has instituted the suit on being threatened to be dispossessed, the suit having been filed immediately after the threat to dispossess the plaintiff, it cannot be held to be barred by limitation. 26. No other substantial question raised nor arises. 27. In view of the above findings the impugned judgment and decree call for no interference. 28. As a result, the appeal is dismissed. Parties to bear their own costs.