Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 404 (HP)

BANGU RAM v. STATE OF H. P.

2005-10-29

A.R.BASU

body2005
ORDER: The petitioner has filed this revision petition under Rule 30 of the H.P. Nautor Land Rules,1968 against an order passed by the Commissioner, Shimla Division on 24.4.1996, whereby he has confirmed the order of the Deputy Commissioner Shimla dated 1.6.1995 canceling the grant of nautor land made in favor of the petitioner by the Sub Divisional Officer (Civil). Rohru on 4.8.1984. 2. Brief facts of the case are that the petitioner was granted nautor on Khasra No. 14/2/5 measuring 1-0 Bigha, situated in Mauza Pahar, Tehsil Jubbal, District Shimla by the Sub Divisional officer (C), Rohru, on 4.8.1984 for construction of a house. Later, on 12.7.1988, one Shri Rohan Lal, who is the present respondent No.2, filed an appeal before the Deputy Commissioner, Shimla claiming that the nautor was granted to the petitioner without following the procedures under the rules and that the petitioner was not an eligible person for the grant of nautor. The Deputy Commissioner, after hearing the matter came to the conclusion that while sanctioning the nautor, neither the report of the Gram Panchayat concerned was sought nor were the objections of the right holders called for. The Ld. Deputy Commissioner also observer that while the land had been allotted for construction of 1 a house, an apple orchard has been raised on the same. Hence, the Deputy Commissioner, cancelled the grant vide his order dated 16.5.1995. Aggrieved against the order of the Deputy Commissioner, the petitioner filed an appeal before the Commissioner, Shimla Division who dismissed the same on 25.4.1996. The present revision petition has been preferred against this order of the learned Commissioner, Shimla Division. 3. The record of the courts below was called for and examined. The arguments advanced by the Ld. counsel for the parties were heard. 4. Shri Mohinder Verma, the Id. counsel for the petitioner reiterated the grounds taken in the revision petition and argued that the land in dispute was granted to the petitioner on 4.8.1994 after the same was recommended by the Tehsildar Jubbal. A Nazrana of Rs. 50/- has been deposited and the possession of the land handed over to the petitioner after which the petitioner has developed the land. According to the Id. counsel, none of the respondents raised any objection the grant till the year 1988 when the respondent No.2, Sh. A Nazrana of Rs. 50/- has been deposited and the possession of the land handed over to the petitioner after which the petitioner has developed the land. According to the Id. counsel, none of the respondents raised any objection the grant till the year 1988 when the respondent No.2, Sh. Roshan Lal, who is inimical towards the petitioner, filed an appeal before the learned Deputy Commissioner, Shimla. The learned Deputy Commissioner, asserted the Id. Counsel, did not examine the aspect of limitation even when, according to Rule 28 of the rules ibid, an appeal against an order of the Sub-Divisional Officer (C) can only be filed within 30 days of passing of such an order. This has amounted to the Ld. Deputy Commissioner assuming jurisdiction which was lawfully not vested in him. Moreover, argued the Id. Counsel, there existed no valid ground before the Id. Deputy Commissioner to have cancelled the grant. The Id. Counsel further argued that the Ld. Commissioner has also not appreciated the facts of the case in a proper manner and therefore his order dated 25.4.1996 is not sustainable. 5. Shri B.S. Thakur, the learned DA. (Rev.), appearing for the state argued that the nautor had been granted to the petitioner for the purpose of construction of a house but he has raised an apple orchard upon the same in contravention to the conditions of the grant. He contended that the objections of the estate right holders were not invited while making the grant and hence the learned Deputy Commissioner has rightly cancelled the grant. 6. Shri Gulzar Rathore, the learned counsel for the respondent No.2 argued that the petitioner has obtained the nautor by concealing the facts. He is not an eligible person as per the requirement of the Rules as he already has a house and did not require and land for construction of a house as mentioned by him in his application. According to the Id. counsel the objections of the estate right holders were not invited nor were the procedure properly followed while making the grant. He contended that the order of the Deputy Commissioner canceling the grant is perfectly valid and correct. The Id. Commissioner has also appreciated the facts of the matter in their correct perspective and the order of the Id. Deputy Commissioner has been rightly upheld. 7. He contended that the order of the Deputy Commissioner canceling the grant is perfectly valid and correct. The Id. Commissioner has also appreciated the facts of the matter in their correct perspective and the order of the Id. Deputy Commissioner has been rightly upheld. 7. Having heard the arguments advanced by the learned counsel for the parties and perusing the record, I find that the point for consideration in the present matter is; (1) Whether the grant made in favour of the petitioner was in consonance with the rules. (2) Whether the appeal filed by the respondent No.2 after the prescribed period of limitation could be entertained by the Id. Deputy Commissioner? 8. An application for grant of nautor is to be processed as per rules 14 and 15 of the H.P. Nautor Rules, 1968. Clause (d) of Rule 14 prescribes the procedure to be adopted by the Field Kanungo of the circle while conducting an inquiry on the application forwarded to him by the Sub-Divisional officer. This clause reads as under: (d) On receipt of the application, the Girdawar Kanungo of the circle shall visit the spot and check the Tatima Shajra attached with the application. While checking the Tatima Shajra the Field Kanungo will note the proximity of any forest, road, path, existing cultivation water channel, public spring the slope of the land, and record a detailed report in respect of trees standing lying on the land applied for, if any, with particular of their land. He shall also make a report on the following points: (i) the size cf the family of the appellant and the size of the holding (s) he owns or possess :n the circle and elsewhere. While the Field Kanungo shall be personally responsible for the accuracy of the particulars of the holding within the circle, the particulars of holding (s), elsewhere, should be reported to the best of his information. In support of his report, the Field Kanungo shall invariably add excerpt of jamabandi in respect of the holding of the appellant; (i) Whether the plot applied for is suitable for the purpose for which it is intended to be used. (ii) The extent, nature and validity of objections, if any. In support of his report, the Field Kanungo shall invariably add excerpt of jamabandi in respect of the holding of the appellant; (i) Whether the plot applied for is suitable for the purpose for which it is intended to be used. (ii) The extent, nature and validity of objections, if any. (iii) The existing soil classification of the land applied for the subsequent classification of the grant and also the land revenue chargeable thereon and (iv) After the above investigation, the Field Kanungo shall return the application to the Tehsil Revenue Officer within six months of the receipt thereof. 9. The clause (c) prescribes the procedure to be adopted by the Gram Panchayat on receipt of the application. It reads as follows: "(e) The Gram Panchayat on receipt of the application shall issue a proclamation calling on any person who may have any objection to the grant of nautor, to make his objection. A period of one month shall be allowed for receiving objections if any. After the expiration of the said period of one month, the gram Panchayat shall consider these objections and record to the existing rights in the land and the objections on its grant if any, and return the application to the Tehsil Revenue Officer within* six months from the date of receipt thereof." 10. A perusal of the nautor file No. 169/84 reveals that though the Field Kanungo has recorded in his report that at the time of his spot inspection, no villager raised any objection, statement of any right holder recorded by the Kanungo is found on record. He has also not recorded whether the land applied for is suitable for the purpose for which it was intended to be used. The provisions of Clause (c) as reproduced hereinabove have not been resorted to at all as there is neither anything on record to show that the Sub Divisional Collector has sent a copy of the application to the concerned Gram Panchayat for proclamation or report nor is there any such report of the Gram Panchayat on record. It is also notable that the Deputy Range Officer, whose report is found on page 25/26 of the file, has recorded that "in light of the Forest Conservation Act, 1980, the case cannot be recommended for sanction". The Sub Divisional Officer has not recorded any reason to overrule the report of the Deputy Range Officer. It is also notable that the Deputy Range Officer, whose report is found on page 25/26 of the file, has recorded that "in light of the Forest Conservation Act, 1980, the case cannot be recommended for sanction". The Sub Divisional Officer has not recorded any reason to overrule the report of the Deputy Range Officer. He has also recorded in his order dated 4.8.1984 that the estate right holders have no objection for the grant of this land though, as discussed earlier, no objections of the estate right holders were ever invited. It is also observed that the petitioner has not put the granted land into the use for which it was granted and has instead raised an apple orchard on the same. He has himself acknowledged this fact in his statement recorded before the Deputy Commissioner on 7.3.1995 available on 151/152 of the case file of the latter that he has houses at village Dhar as well as Dharmana and that he has raised apple trees on the land in dispute. He has even gone on record to state that he had previously encroached upon this land and had also been ejected there from. 11. In view of the facts as discussed above, it is clear that the grant had been made by the Sub-Divisional Officer vide his order dated 4.8.1984 in violation of the provisions as laid down under the Rules. This fact alone is sufficient to nullify the said order. An order passed in contravention of the provisions of law as laid down is not sustainable in the eyes of law and law of limitation does not prevent adjudication upon such an order at any point of time. Besides, it is also established beyond any doubt that the petitioner, who had adequate residential accommodation in his ownership never intended to use this land for construction of a house. He merely had sought to get his encroachment over the land in dispute regularized by resorting to acquiring the said order in nautor in which, regretfully, the revenue agency aided by him. 12. In view of the facts discussed hereinabove, I hold that the grant of nautor made in that, he has failed to utilize the land for the purpose for which the grant was made. 12. In view of the facts discussed hereinabove, I hold that the grant of nautor made in that, he has failed to utilize the land for the purpose for which the grant was made. The order of the Sub Divisional Officer (C) Rohm, dated 4.8.1984 being in gross violation of the Rules, no limitation was attracted against such an illegal order. 13. The order dated 25.4.1996, passed by the Id. Commissioner, Shimla Division in appeal No. 134/95, are therefore upheld. The revision petition is dismissed. 14. Three other revision petitions No. 335/96 titled as "Shri Het Ram son of Shri Molak Ram Vs. State of H.P. and another". 337/96 titled as "Shri Sant Ram son of Shri Molak Ram Versus State of HP. and another", and Revision Petition 3/99 titled as "Shri Bangu Ram and others. Versus. Roshan Lal & Others (State of H.P.)" are also pending adjudication before this court. In all these cases, the grantees are brothers and mother of Shri Bangu Ram, who was the Pradhan of Gram Panchayat Dhar and he had himself made the proclamation as well as recommendations in all these cases. In all these cases 1-0 bighas of the land in contiguity to 14/2/5 which is the subject matter of the dispute in revision No. 336/96 discussed above has been granted by the Sub-Divisional Officer (C), Rohru has been granted on 4.8.1984 for purportedly, construction of a house but in all these cases, apple orchards have been raised. The fact that the petitioners never intended to construct houses thereupon is clearly borne out from the facts, which are identical to all those discussed in revision petition No. 336/96. All the said revision petitions are also, hence being dismissed vide this order itself. 15. Orders he communicated to the parties. The record of the courts below be returned and the case file of this court be consigned to the record room after due completion. -