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Himachal Pradesh High Court · body

2005 DIGILAW 347 (HP)

JAI CHAND v. STATE OF HIMACHAL PRADESH

2005-09-16

A.R.BASU

body2005
JUDGMENT Dr. A.R. Basu, Financial Commissioner (Appeals).—This revision petition has been filed under Rule 30 of the H.P. Nautor Rules, 1968 against an order dated 16.12.1995 passed by the Commissioner Shimla Division in appeal No. 55/95 whereby he had dismissed an appeal filed before him against an order of the Deputy Commisisoner, Shimla dated 7.3.1995 who had vide the said order rejected an application for grant of nautor filed by the petitioner. 2. Brief facts of the case are that the petitioner applied for grant of nautor on 26.4.1976 comprised in Khasra No. 324/1 measuring 12-3 Bighas situated in Village Bharoli, Tehsil Rohru, District Shimla. The same was rejected by the Deputy Commisisoner on 25.3.1977, observing that the land applied for does not fall within the definition of land. An appeal was filed by the petitioner before the Divisional Commissioner, who rejected the same on 22.8.1985. A revision petition was filed by the petitioner before the Financial Commissioner (Rev & Appeal) H.P. who, vi^e an order dated 27.5.1988 held that: 3. The amendment does not mention any saving clause about the dealing disposal of cases pending under this rule in appeal, revision etc. and it is clear from the reading of amendment that it is prospective in nature and has no retrospective effect. I do not feel that the, case of the petitioner was covered under the provision of old Rule 27 (B) and the Deputy Commissioner was not justified in rejecting the case. He has not passed a speaking order. The learned Divisional Commissioner has also erred in not providing an opportunity of being heard to the present petitioner. Accordingly, I set aside both the orders i.e. order dated 25.3.1977 of the Deputy Commissioner, Shimla and dated 22.8.1985 of the learned Divisional Commissioner, Shimla Division and remand the case to the Divisional Commissioner to decide the case in the light of my above observations. The matter was heard by the Divisional Commissioner Shimla who, vide an order dated 23.3.1990 held that the case should have been remanded to the Deputy Commissioner and that it would be unfair for him to sit as a trial Court and pass any order in the matter. He, in turn, remanded the case to the Deputy Commissioner, Shimla to decide the same within three months. He, in turn, remanded the case to the Deputy Commissioner, Shimla to decide the same within three months. The Deputy Commissioner, Shimla rejected the application once again vide order dated 7.3.1995 holding that the petitioner was not holding any land in his name adjacent to and on applied for at the time of application. The petitioner assailed this order before the Comsnissioner, Shimla Division in appeal No. 55/95 who rejected the same on 16.12.1995 holding that for the reasons pointed out by the Deputy Commissioner in his order dated 7.3.1995, Shri Jai Chand, petitioner, is not eligible for nautor. It is against this order dated 16.12.1995 that the present revision petition has been preferred. 4. The record of the Courts below was called for and perused. The written argument submitted by the petitioner as well as the oral argument advanced by his learned Counsel and the learned D.A. (Rev.) for the State were heard. 5. Shri Yoginder Pal, the learned Counsel for petitioner reiterated the written arguments filed on behalf of the petitioner. He argued that a copy of jamabandi for the year 1957-58 available on record of the case file of the learned Commissioner clearly show that he was an owner of land comprising khasra No. 233 in the relevant revenue village which he exchanged with one Shri Devi Saran. Likewise copies of jamabandi for the years 1965-66 and 1975-76 are also available on record which shows that he is an owner of land in village Bharoli. Further, his father was an owner of the land adjoining to the one applied for by him and he succeeded the estate of his father after the latter demise which is clearly revealed from the copy of Misal Hakiat also on record. According to the learned counsel, though learned Divisional Commissioner has erred in interpreting the Rule 27-B of the H.R Nautor^ Rules. The petitioner, according to him, being a permanent resident of Village Bharoli, clearly falls within the definition of Resident under Rule 3 (d) of the Rules. He further argued that the Deputy Commissioner had also erred in holding that the petitioner could not have applied for nautor during^ the life time of his father. It is also been argued that the learned Financial Commissioner had held in his order dated 27.5.1988 that the Rule 27-B as it existed prior to being amended fully covered the case of the petitioner. It is also been argued that the learned Financial Commissioner had held in his order dated 27.5.1988 that the Rule 27-B as it existed prior to being amended fully covered the case of the petitioner. He contended that the learned Financial Commissioner had remanded the matter to the , Divisional Commissioner vide his order dated 27.5.1988 to decide the case in view of his observations but the learned Commissioner had without complying with the order of the learned Financial Commissioner remanded the case to the Deputy Commissioner Shimla for hearing. He cited the case "Chandanmal v. Rawatmal, AIR 1980 (Raj) page 139", wherein it has been held that High Court remanding case to lower appellate Court-Duty of appellate Court indicated-Remand order directing appellate Corut to give opportunity to plaintiff to cross-examine defendants witness and dispose of appeal afresh-Appellate Court cannot go beyond direction-Permitting parties to adduce expert evidence even by consent held was without jurisdiction and contrary to direction. He has also cited another case titled as "Uttam Chand and others v. Md. Bakhsh and others, 1924 Lahore page 354", wherein it has also been held that the High Court remitted certain issues to the lower appellate Court under Order 41, Rule 25 for trial That Court in its turn remitted those issues to the Munsifand directed him to record evidence and forward it with his opinion. The Munsif in ccordance with the direction of the District Judge recorded the evidence of certain witnesses and came to certain findings upon that evidence. The District Judge however after receipt of the findings went into the evidence himself and came to a different conclusion from that arrived at by the Munsif Held: that the lower appellate Court had no power to remit the issues to the Court Subordinate to it for trial and therefore all the proceedings were ultra vires. 6. Shri B.S. Thakur, D.A. (Rev.) appearing for the State argued that the case of the petitioner was not covered under the H.R Nautor Rules, 1968. He argued that only 0-2 Biswas of land can be given to a person under Rule 27-B whose land is adjoining to the land of an applicant. He further argued that the petitioner was a serving Government Officer when he applied for the land and even on this account he was not eligible for the grant. 7. He argued that only 0-2 Biswas of land can be given to a person under Rule 27-B whose land is adjoining to the land of an applicant. He further argued that the petitioner was a serving Government Officer when he applied for the land and even on this account he was not eligible for the grant. 7. Having perused the entire record and hearing the arguments advanced by the learned Counsel for the parties also going through the written arguments filed on behalf of petitioner. I have arrived at the following conclusion. 8. The eligibility of the petitioner for grant of the nautor land applied for by him has to be examined strictly in compliance with the observations made by my learned predecessor vide his order dated 27.5.1988. It is observed that while the matter was remanded to the Divisional Commissioner by my predecessor whose observations that the matter cannot be heard by him and his action of remanding the matter to the Deputy Commissioner without adjudicating upon the same as he had been directed to is grossly irregular on his part are not sustainable in the eyes of law. The learned Commissioner ought to have adjudicated upon the eligibility of the petitioner in view of the observations of this Court and could have, if he had deemed it appropriate, thereafter remanded the matter to the Deputy Commissioner to examine the case of the petitioner. Besides, as is clear from a bare perusal of the Jamabandis for the year 1957-58, 1965-66 and 1975-76 are well as the Misal Hakiat, the petitioner is a resident of the Village Bharoli and his ancestral land is contiguous to that which he has applied for. None of the Courts below have either cared to examine the matter in view of the observations made by my learned predecessor vide his order dated 27.8.1988, nor have appreciated the facts as brought forth on record. 9. In view of the above discussion, the order dated 7.3.1995 passed by the learned Deputy Commissioner Shimla as well as those dated 16.12.1995 passed in appeal No. 55/95 by the learned Commissioner Shimla Division are set aside. 9. In view of the above discussion, the order dated 7.3.1995 passed by the learned Deputy Commissioner Shimla as well as those dated 16.12.1995 passed in appeal No. 55/95 by the learned Commissioner Shimla Division are set aside. The matter is remanded to the Deputy Commissioner, Shimla to examine the case of the petitioner strictly keeping in view the observations made by my learned predecessor vide order dated 27.5.1988 after taking into account the facts borne out from the revenue records as discussed above. Due opportunity of being heard be also given to all concerned. Announced in the open Court today on the 16.9.2005. The record of the Court below be returned and the case file be consigned to the record room after due completion. Petition disposed of.