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2003 DIGILAW 238 (HP)

PREM CHAND v. STATE OF H. P.

2003-08-19

LOKESHWAR SINGH PANTA

body2003
JUDGMENT Lokeshwar Singh Panta, J. - This writ petition has been filed by the petitioner for an appropriate writ, direction or order, quashing and setting aside the order dated 28.7.1997 passed by the Deputy Commissioner, Pangi, District Chamba whereby nautor land granted to the petitioner has been cancelled. 2. The case of the petitioner is that he applied for the grant of Nautor land under the H.P. Nautor Land Rules, 1968 (hereinafter referred to "the Land Nautor Rules). The Sub Divisional Officer (Civil), Pangi sanctiond Nautor land to him to the extent of 2-2 bighas situate in mauza kuffer, Tehsil Pangi, District Chamba out of Khasra Nos. 250/61/1 and 260/62/1 on 12.11.1986. Pursuant to the sanction order, the petitioner depsoitda sum of Rs. 10.50 as Najrana on 23.3.1987. Thereafter Patta under Rule 18(d) of the Nautor Land Rules had been issued to him duly executed and signed by the petitioner and Collector, District Chamba dated 1st April, 1987, a copy whereof is placed on record as Annxure PA. The Asstt. Collector, 2nd Grade, Pangi on 22.5.1990 attested the mutation of the land in favour of the petitioner. The petitioner had taken the possession of a part of the land whereas the possession of some part could not be taken by him as in the meantime the Forest Department had encroached upon the said land. The petitioner requested the Forest Department to vacate the land allotted to him but he could not succeed in his efforts. The petitioner then applied to the Asstt. Collector, 2nd Grade, Pangi for demarcation of the land. The Asstt. Collector deputed Field Kangungo to conduct the demarcation on the spot. The Field Kanungo in the presence of Range Officer of the Forest Department carried demarcation on 17.12.199 and submitted his report to the Tehsildar, Pangi, a copy whereof is placed on record as Annexure PB. The Field Kangungo found that the land granted to the petitioner had been encircled by wall constructed by the Forest Department and some plants had been planted thereon and therefore, the petitioner could not cultivate the land. The Tehsildar, Pangi wrote a letter dated 24th June, 1991 to the Divisional Forest Officer, Pangi-respondent No. 4 herein, a copy whereof is placed on record as Annexure PC requesting the latter to vacate the land so hat the petitioner could cultivate the land. The Tehsildar, Pangi wrote a letter dated 24th June, 1991 to the Divisional Forest Officer, Pangi-respondent No. 4 herein, a copy whereof is placed on record as Annexure PC requesting the latter to vacate the land so hat the petitioner could cultivate the land. As per the petitioner, despite repeated requests made by him and also by the Tehsildar, the Forest Department has not vacated the land, hen the Tehsildar Pangi sent a letter in June, 1992 (Annexure PD) to the petitioner informing him that after verification it was found that as the land comprising Khasra Nos. 250/63/1 and 260/62/1 measuring 2-2 bighas situated at Mohal Kuffer had since been sanctioned in his favour and mutation No. 85 dated 22.5.1990 had also been attested, therefore, he was directed to cultivate nautor land. 3. The petitioner has contended that the Reader of the Tehsildar on 2.4.1992 submitted file to the Tehsildar for order so that he could be delivered the possession of the land on spot. The Tehsildar by order dated 27.4.1992 (Annexure: PE) directed to inform the petitioner to take possession. As the petitioner could not forcibly dispossess the Forest Department nor the possession was handed over to him on spot by the Competent Authority, he was left with no remedy but to get legal notice (Annexure PF) dated 27.7.1992 issued to the respondents. The Resident Commissioner, Pangi Sub Division-respondent No. 3 herein cancelled the grant of the natuor land by order dated 28.7.1992, a copy whereof is placed on record as Annexure PG. The petitioner filed Civil Suit on 5.1.1993 in the Court of Senior Sub Judge, Chamba, inter alia, for mandatory injunction and for removal of the wall constructed around the land granted to him with further prayer that in case the petitioner was dis-possessed during the pendency of the suit, the possession be restored to him. The petitioner has also stated that Resident Commissioner, Pangi-respondent No. 3 in April, 1994 forcibly constructed a Jeep able road 6 feet in width and i 00 feet approximately in length from his office to his residence through-the land in dispute. The respondents thereafter had initiated proceedings against the petitioner under Section 163 of the Himachal Pradesh Land Revenue Act for his ejectment before the Executive Magistrate, Pangi and therefore, the petitioner was left with no option but to withdraw the suit. The respondents thereafter had initiated proceedings against the petitioner under Section 163 of the Himachal Pradesh Land Revenue Act for his ejectment before the Executive Magistrate, Pangi and therefore, the petitioner was left with no option but to withdraw the suit. On these premises, he petitioner has filed this writ petition challenging the order Annexure PG being arbitrary, illegal, without jurisdiction and against the principles of natural justice. 4. In affidavit-in-reply filed on behalf of Secretary (Forest) to the Government of H.P. respondent No. 2 herein and Divisional Forest Officer, Pangi-respondent No. 4 herein, the Conservator of Forest, Chamba has admitted that the mutation of the land grated to the petitioner was attested by the Asstt. Collector, 2nd Grade, Pangi on 2.5.1990 but the mutation was got done by him by mis-leading/misinforming the authority that the land in question was in his possession. He stated that the land in dispute is a part of Hasnu D.P.F. and is in possession of the Forest Department since the last settlement and plantation in the area had been completed in the, year 1988 after fencing the area. He submitted that on receipt of the letter of Tehsildar Pangi by Divisional Forest Officer, Pangi-respondent No. 4, the matter was taken up with the Deputy Commissioner, Pangi for cancellation of the nautor land which was illegally allotted to the petitioner as respondents 2 and 4 had planted Devdar and other misc. B/L sapling on the land in question. He also submitted that after due consideration and giving full opportunity to the petitioner the cancellation order has been rightly passed by the Deputy Commissioner, Pangi. He submitted that it was not possible for the Forest Department to vacate the area because the provisions of Forest Conservation Act are attracted in the present case. Further the defence raised by the said respondents is that as per para-4(c) the terms and conditions of the Patta, the grantee was to break up the land within two years from the date of patta but as the petitioner failed to cultivate and possess the land within two years, the grant has been rightly cancelled by the competent authority. 5. In affidavit-in-reply filed on behalf of the State of HP. Through Secretary (Revenue)-respondent No. 1 herein, Resident Commissioner-respondent No. 3 and Collector, Chamba District Chamba-respondent No. 5, the Resident Commissioner Pangi has admitted that the Asstt. 5. In affidavit-in-reply filed on behalf of the State of HP. Through Secretary (Revenue)-respondent No. 1 herein, Resident Commissioner-respondent No. 3 and Collector, Chamba District Chamba-respondent No. 5, the Resident Commissioner Pangi has admitted that the Asstt. Collector 2nd Grade, Pangi had attested the mutation of the land granted in favour of the petitioner on 22.5.1990 on the basis of the statement made by the petitioner that he was in possession of the land after the grant had been made in his favour whereas he was never in possession thereof. He has admitted that Tehsildar, Pangi wrote a letter dated 24.6.1991 to respondent No. 4 and in reply thereto submitted by Forest Department it was stated that the land granted to the petitioner would fall in Hasnu D.P.F. and the Forest Department raised plantation in the said land. The cancellation order dated 28.7.1992 has been passed by respondent No. 3 on the application filed by the Forest Department. 6. The petitioner has filed rejoinders to the affidavit-in-reply by the respondents in which he was specifically stated that respondents 2 and 4 have in fact misled/misinformed the Asstt. Collector, 2nd Grade in regard to their possession over the land granted to the petitioner as the Forest Department himself has treated the possession of the Forest Department illegal as is revealed from the perusal of Annexures PC and PD. He has stated that the Forest Department has forcibly occupied the land in the year 1989 whereas the grant had been made in his favour on 20.12.1986 and Najrana was deposited by him on 23.3.1987. The petitioner has reiterated and re-asserted the other averments made in the writ petition. 7. I have heard teamed Counsel for the parties and scrutinized the original record produced by the learned Advocate General. The facts which are not in dispute are that the petitioner being found eligible for the grant of nautor land under Rule 7 of the Nautor Land Rules had been sanctioned 2-2 bighas land in Khasra Nos. 250/63/1 and 260/62/1. The grant was made by Sub Divisional Officer (Civil), Pangi by order dated 12.11.1986 after completing all the formalities as prescribed under Rule 14 of the Nautor Land Rules. The right holders of the area also recommended the grant to the petitioner. 250/63/1 and 260/62/1. The grant was made by Sub Divisional Officer (Civil), Pangi by order dated 12.11.1986 after completing all the formalities as prescribed under Rule 14 of the Nautor Land Rules. The right holders of the area also recommended the grant to the petitioner. The Block Officer Forest, Killer vide his report dated 7.5.1985 had also given no objection for the grant of nautor land in the aforesaid khasra numbers. The Range Officer, Killer forwarded no objection certificate of the Block Officer, Killer to the Tehsildar, Pangi with a report that on spot inspection conducted by Sh. Siri Ram, Block Officer, Killer and keeping in view the report of the Block Officer, Killer, the nautor case of the petitioner was submitted for favour of necessary action. The members of the Gram Panchayat, Killer and Tehsildar, pangi had also recommended the grant of the nautor land to the petitioner in the year 1986. The Sub Divisional Officer (Civil), Pangi on the recommendation of the above said authorities and persons sanctioned the nautor land in favour of the petitioner under Rule 16. Thereafter, the petitioner was directed to deposit the Najrana under Rule 18 which he had deposited vide challan No. 2 dated 23.3.1987. The patta as per the requirement under Rule 18 has been executed by the Collector District, Chamba on April 1, 1987. The mutation of the land in the revenue record had been attested by the Asstt. Collector, 2nd Grade, Pangi on 22.5.1990. When the petitioner wanted to cultivate the land he found that it was un-authorisedly and illegally encroached upon by the Forest Department. He applied for demarcation of the land. The Tehsildar, Pangi deputed Girdawar Kanungo to conduct the demarcation on spot. Girdawar Kanungo conducted the demarcation on 17.12.1990 in the presence of Forest Officer and submitted his report (Annexure PB) to the Tehsildar. The report (Anexure PB) reveals that despite protest made by the petitioner, the Forest Department had raised a wall around the land granted to the petitioner. The Tehsildar made an endorsement on the report saying that a letter to vacate the land had been sent to the Forest Department. By letter dated 24th June, 1991 (Annexure PC), the Tehsildar requested the Divisional Forest Officer, Pangi-respondent No. 4 to vacate the land so that the possession could be handed over to the petitioner for its cultivation. The Tehsildar made an endorsement on the report saying that a letter to vacate the land had been sent to the Forest Department. By letter dated 24th June, 1991 (Annexure PC), the Tehsildar requested the Divisional Forest Officer, Pangi-respondent No. 4 to vacate the land so that the possession could be handed over to the petitioner for its cultivation. In June, 1992 by letter Annexure PD, Tehsildar, Pangi directed the petitioner to start cultivation of the nautor land sanctioned in his favour as mutation No. 85 had already been attested in his favour by the Competent Authority dated 22.5.1990. The Reader of the Tehsildar, Pangi on 2.4.1992 submitted the file to the Tehsildar stating that the Forest Department had occupied the land in dispute illegally and it was only possible’ if the petitioner was put in possession on spot so that he would be able to cultivate the land. The report of the Reader is placed on record as Annexure PE. The order dated 27.4.1992 of the Tehsildar on Annexure PE was to inform the petitioner to take possession of the land. In compliance to order of the Tehsildar, Pangi, dated 27.4.1992 a letter was put up by the Reader for signatures of the Tehsildar as is apparent from the perusal. of Annexure PE. The Tehsildar recorded the order dated 2.7.1992 in Hindi, a copy whereof is placed on record as Annexure PE and its english translation Annexure PE/T reads: "Be registered. Signatures are not possible as Honble Resident Commissioner orally intimated/ordered that since granted nautor land adjoins the accommodation allotted to the c... Resident Commissioner, therefore, cancellation of the nautor may be obtained. There is no need to continue with the missal, as such it be consigned to record. Sd/- Tehsildar 2.7.1992 8. Signatures are not possible as Honble Resident Commissioner orally intimated/ordered that since granted nautor land adjoins the accommodation allotted to the c... Resident Commissioner, therefore, cancellation of the nautor may be obtained. There is no need to continue with the missal, as such it be consigned to record. Sd/- Tehsildar 2.7.1992 8. From the scrutiny of the original record, it appears that Resident Commissioner, Pangi respondent No. 3 recorded order dated 23.7.1992 in Hindi which would read that in view of the objections of the Forest Department, the order for review was necessary on 10.7.1992 notice was issued to the petitioner by Sub Divisional Officer (Civil), Pangi directing him to be present in his office on 16.7.1992 to show cause why the nautor land granted to him be not cancelled and the land is assumed by the State Government under Rule 12 as he could break only 0-5 and 0-6 bighas of land whereas the rest of the land out of the total land 2-2 bighas granted to him has not been cultivated by him within two years from the date of the patta. Pursuant to the said notice, the petitioner appeared and made statement, a copy whereof is placed on original record of the nautor file stating that he had been sanctioned the land to the extent of 2-2 bighas in Khasra No. 260/2/1 and 250/60/1. Patta was sanctioned in his favour on 1.4.1989 and mutation had also been attested in his favour on 23.4.1990. He cultivated some portion of the land and rest of the land could not be cultivated by him because the Forest Department had put fencing around it and when he started breaking the land, the Resident Commissioner stopped him from doing so and it was due to the order of the Resident Commissioner that he was prevented from cultivating the land. It appears from the record that Tehsildar, Pangi vide letter dated 30th Aprilr-1992 informed the Resident Commissioner, Pangi in reply to the verbal discussion that the land had been sanctioned by the Sub Divisional Officer (Civil) in favour of the petitioner and on 4.4.1989 patta was also issued, jn his favour and thereafter the petitioner had tried to cultivate the land for agriculture purpose but in the meantime the Forest Department encroached upon the land. Further it was stated that the petitioner applied to the Tehsildar for demarcation of the land which was not conducted through Kanungo in the presence of Forest Official and on June 24, 1991, the Divisional Forest" Officer, Killer had been requested to vacate the possession but no reply had been received. He has also stated that under the Nautor Land Rules, the nautor land could only be cancelled if the grantee within two years from the date of the patta failed to break the (and granted to him. 9. It appears from the original record that the Resident Commissioner in purported exercise of the powers of review under Rule 29 of the Nautor Land Rules has passed the order of cancellation of the grant of land on the nautor file maintained by the department. The order passed by the Resident Commissioner is hand written in Hindi using green ink. The said-order in literal English translation would read that the petitioner had been served notice for the cancellation of the nautor. In reply thereto he admitted that Patta dated 4.4.1989 had been received by him. Further he stated that he had broken some portion of the nautor land granted to him and the rest of the land could not be put to use by him because the Forest Department had fenced the area. Now, the Forest Department has informed that the land granted to the petitioner is D.P.F. and consists trees, therefore, cancellation of the grant of nautor land to the petitioner was felt necessary. Further that despite the expiry of period of two years, nothing could be done on the land. The objections of the Forest Department were found genuine, therefore, the nautor land is ordered to be cancelled and the petitioner be informed accordingly about the said order. 10. On bare reading of the said order, the Resident Commissioner cancelled the nautor land of the petitioner on two grounds, namely, (i) that the land granted to the petitioner is D.P.F. and the Forest Department had planted the plants on it and (ii) the land was not used for the purpose for which it was granted within two years. The said order does not bear any date of its record. The order which was conveyed to the petitioner is dated 28.7.1992 (Annexure PG). The said order does not bear any date of its record. The order which was conveyed to the petitioner is dated 28.7.1992 (Annexure PG). The original order dated 28.7.1992 (Annexure PG) contained on the original file has been written in Hindi in blue ink and signed by the Resident Commissioner in green ink. This order has been passed by the Resident Commissioner in purported exercise of the powers of Deputy Commissioner vide notification No. 10-1/75-App-ll-(Vol.2) dated Shimla 31.1.1992. The reasons for the cancellation of the orders are translated as under:- 1. That aforesaid Khasra Numbers as per report of D.F.O. Killar falls in Hasnu D.P.F., therefore nautor cannot be sanctioned. 2. That plantation has been done in the aforesaid khasra numbers by the forest department. 3. That Resident Commissioner, Pangi has ordered for review of grant of nautor. 11. The Resident Commissioner has exercised the jurisdiction of review under the aforesaid notification of the State Government. I have perused the copy of the said notification produced by the learned Advocate General. The Sub Divisional Officer (Civil), Pangi has been appointed the Addl. District Magistrate to exercise the powers conferred by sub-section (2) of Section 20 of the Code of. Criminal Procedure with all powers of the District Magistrate under the said Court or under other law for the time being enforced to be exercised within the local limits of Pangi, Sub Division of Chamba District. Further, the Addl. District Magistrate, Pangi has also been entrusted the powers of Deputy Commissioner. The said notification has been issued by the Commissioner-cum-Secretary Personnel, to the Govt. of H.P. dated 31st January, 1992. 12. Now the pertinent and material issue "-to be considered is whether the Sub Divisional Officer (Civil), Pangi is authorized to act or discharge the duties of Deputy Commissioner under Rule 29 of the Nautor Land Rules1 or he by virtue of the notification, he can exercise the administrative powers of Deputy Commissioner, Pangi and not as Deputy Commissioner of District Chamba in terms of Rule 29 of the Nautor Land Rules. Rule 29 reads as under:- "Review. Rule 29 reads as under:- "Review. The Financial Commissioner or the Commissioner the Deputy Commissioner or the Sub Divisional Officer (Civil) may either of his own motion or on the "application of any party interested review, and, on so reviewing, modify, reverse or confirm any order passed by himself or any of his predecessors in office, provided as follows : (a) when the Sub Divisional Officer (Civil) thinks, it necessary to review any order, he shall first obtain the sanction of the Deputy Commissioner; (b) when the Commissioner or the Deputy Commissioner think it necessary to review any order which he has not himself passed, he shall first obtain the sanction of the Financial Commissioner in the case of Commissioner and the Commissioner in the case of the Deputy Commissioner; (c) the application for review of an order shall not be entertained unless it is made within 90 days from the passing of the order and unless the applicant satisfied the Financial Commissioner or the Commissioner or the Deputy Commissioner or the Sub Divisional Officer (Civil), as the case may be, that he had sufficient cause for not making the application within that period; (d) an order shall not be modified or reversed in review unless reasonable notice has been given to the parties effected thereby to appear and be heard in support of the order; and (e) an order against which an apeal has been preferred shall not be reviewed." 13. The Rule extracted above makes it clear and plain that when Sub Divisional Officer (Civil), thinks it necessary to review any order, he shall first obtain the sanction of the Deputy Commissioner. Un-disputedly in the present case the nautor land had been granted to the petitioner by the Sub Divisional Officer (Civil), Pangi on 12.11.1986 and the impugned order of cancellation Annexure PG has been passed by the Sub Divisional Officer, Pangi without obtaining the sanction of the Deputy Commissioner, Chamba under the mandatory requirement of sub-clause (a) of Rule 29. The Sub Divisional Officer (Civil), Pangi by virtue of the said notification of the State Government dated 31.1.1992 has not been appointed as Deputy Commissioner to exercise the powers and jurisdiction appeal or review under the Nautor Land Rules1. The Sub Divisional Officer (Civil), Pangi by virtue of the said notification of the State Government dated 31.1.1992 has not been appointed as Deputy Commissioner to exercise the powers and jurisdiction appeal or review under the Nautor Land Rules1. The powers of the Deputy Commissioner gh/en to the Sub Divisional Officer (Civil) by virtue of the notification cannot be impliedly read as powers of the Deputy Commissioner contemplated in the Nautor Land Rules which have all the force of law. - 14. On consideration of the entire material on record, the order dated 28.7.1992 Annexure PG passed by the Resident Commissioner, Pangi in purported exercise of the powers of the Resident Commissioner, Pangi is arbitrary, unreasonable, without jurisdiction and in violation of the principles of natural justice and it deserves to be set aside for the following reasons : 1. The order passed under Rule 29 is without jurisdiction as no sanction was obtained by the Resident Commissioner from the Deputy Commissioner under clause (a) of Rule 29 before reviewing the order of grant of the nautor land made by the Sub Divisional Officer (Civil), Pangi to the petitioner; 2. The application dated 19.10.1990 filed by the Divisional Forest Officer, Pangi for cancellation of the nautor land granted to the petitioner was beyond the period of 90 days from passing of the order by the Sub Divisional Officer (Civil) dated 22.11.1986 and no sufficient cause as contemplated under clause (c) of Rule 29 has been shown; 3. The petitioner has not been give reasonable notice as envisaged under Clause (d) of Rule 29 before the order Annexure PG has been passed by the Resident Commissioner, Pangi; 4. Notice dated 10.7.1992 had been given by Sub Divisional Officer (Civil), Pangi to the petitioner under clause (a) of Rule 12 for cancellation of the grant of the nautor land and its resumption to the State Government as the petitioner has failed to break the land granted to him within two years from the date of patta. The petitioner has shown the cause to-contend that after the grant of patta dated 1.4.1989, he had broken some part of the land - but-the-rest of the land could not be cultivated by him because by that time the Forest Department encroached the land by putting barbed wire around it. The petitioner has shown the cause to-contend that after the grant of patta dated 1.4.1989, he had broken some part of the land - but-the-rest of the land could not be cultivated by him because by that time the Forest Department encroached the land by putting barbed wire around it. It was not the fault of the petitioner who was responsible not to make use of the land within two years from he date of the patta. The Forest Department encroached upon the land granted to the petitioner in the year 1988 and Tehsildar, Pangi on June 24, 1991 vide letter Annexure PC requested the Divisional Forest Officer Pangi to vacate the encroached land which was granted to the petitioner in he year 1986 and to deliver the possession to the petitioner for its cultivation. The Forest Department instead of complying the request of the Tehsildar tried to justify its action by raising the objections in the year 1990 whereas the patta was issued to the petitioner on 1.4.1987. 5. The Resident Commissioner could not judge his own cause as he himself verbally asked the Tehsildar, Pangi to submit the case of the petitioner before him for cancellation of the nautor and thereafter on 23.7.1992 he recorded the order on the file that keeping in view the objections of the Forest Department, the order for review of the grant of land was necessary. Thereafter he recorded hand written order in Hindi in green ink cancelling the grant on two grounds, namely, that the land is within D.P.F. and trees are planted by the Forest Department thereon and the petitioner could not cultivate the land within; two years whereas the order dated 28.7.1992 Annexure PG has been passed on three grounds as mentioned therein above. The notice for cancellation of the nautor land has not been given to the petitioner under Clause (d) of Rule 29 as the earlier notice was issued under Rule 12 for resumption of the land calling the petitioner to show cause before the resumption of the land. Thus, the order dated 28.7.1992 (Annexure PG) has been passed by the Resident Commissioner in violation of the principles of natural justice. The said order is not in complete conformity with the order recorded in green ink in Hindi by the Resident Commissioner on the original file. 15. Thus, the order dated 28.7.1992 (Annexure PG) has been passed by the Resident Commissioner in violation of the principles of natural justice. The said order is not in complete conformity with the order recorded in green ink in Hindi by the Resident Commissioner on the original file. 15. In the result, for the reasons above said, the order dated 28.7.1992 Annexure PG passed by the Resident Commissioner in purported exercise of the powers of the Deputy Commissioner, Pangi is hereby quashed and set aside. Consequential proceedings taken by the Revenue Authority pursuant to the said order are also quashed. The order of the Sub Divisional Officer (Civil), Pangi dated 12.11.1986 whereby and where under nautor land to the extent of 2-2 bighas comprising Khasra Nos.- 250/63/1 and 260/62/1 situate in Mauza Kuffar, Tehsil Pangi granted to the petitioner is restored. 16. In the facts and circumstances of the case, the respondents are directed to pay the cost to the petitioner quantified at Rs. 5,000/- as the petitioner has been deprived of to make use of the land granted to him in the year 1986 and to earn his livelihood thereof being a poor person belonging to remote village-of Tehsil, Pangi, District Chamba. The costs shall be paid by the respondents to the petitioner or be deposited in the Registry of this Court within one month from the date of this order. Stay order, if any, shall stand vacated.