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2012 DIGILAW 342 (HP)

KARAN J. KUMAR v. STATE OF HIMACHAL PRADESH

2012-06-15

V.K.AHUJA

body2012
JUDGMENT : V.K. Ahuja, J. 1. This is a petition filed by the petitioner under Articles 226 and 227 of the Constitution of India for quashing the order passed by the Financial Commissioner (Appeals) on 5.5.2009 in Revision Petition No. 135 of 2008, titled Dr.Karan J. Kumar versus State of H.P. Brief facts of the case, as alleged by the petitioner, are that he was an estate holder and filed an application in prescribed form under H.P. Nautor Rules for allotment of lease/nautor. The application was submitted to Tehsildar, who sent the same to the Range Officer and the comments of the Panchayat were also called and ultimately on the recommendations of the Tehsildar, Collector Solan sanctioned the application of the petitioner vide his order dated 3rd April, 1967 with regard to land measuring 2 bighas and 6 biswas comprised in Khasra No. 75 in village Mando for the purpose of installation of a petrol pump. It was further alleged that the patta (Annexure PA) was executed between tee petitioner and the State on 18th April 1967 after depositing a sum of Rs. 115/- by way of Nazrana and another sum of Rs. 115.45 on account of price of the trees. It was alleged that the petitioner was put in possession and a mutation was also attested in this regard and he spent considerable amount of Rs. 20,000/- for leveling the ground and making the land suitable for the prescribed purpose. 2. It was further alleged that the Deputy Commissioner referred the matter to the Commissioner for review of the order dated 3rd April, 1967. Thereafter, the Deputy Commissioner set aside the order of his predecessor, vide order dated 17th April 1968. The petitioner filed an appeal before the Commissioner on 24th May, 1968 and during the course of the appeal, a proposal was made by the petitioner's counsel that in view of the amount spent by the petitioner for development of the land, it may be sold to him on market price. The Commissioner recommended the same and the Financial Commissioner, on a reference, did not agree for the sale of the land, as per the Rules. 3. The Commissioner recommended the same and the Financial Commissioner, on a reference, did not agree for the sale of the land, as per the Rules. 3. Petitioner filed a petition before the Circuit Bench of Delhi High Court, at Shimla, by way of CWP No. 149 of 1968 and the matter was sent back to the Commissioner (Revenue), H.P. to re-hear the parties and pass appropriate orders and the order of the Financial Commissioner, dated 19th August, 1968 was quashed. It was alleged that meanwhile, the Deputy Commissioner issued a show cause notice to the petitioner asking him as to why the lease be not cancelled. The petitioner filed reply. The parties were directed to appear before the Commissioner (Revenue) on 31st December, 1970, but the record was mis-placed which was later on reconstructed. The nautor appeal was decided on 23.11.1995 after a period of 25 years and the petitioner was held not eligible for the grant of the nautor land and the earlier grant was cancelled vide order dated 23.11.1995. In the meanwhile, the petitioner also filed a civil suit, which was later on withdrawn. It was alleged that the Revision Petition filed by the petitioner was dismissed by the Financial Commissioner (Appeals), vide order dated 27.6.2001/27.12.2001 with the observation that the policy of grant of nautor was primarily enacted for the poor and subsistent farmers to ameliorate their economic well being, so that they could make both ends meet and not for gratuitous enrichment of people for profit and business. These assertions were made by the petitioner himself in para 3.20 of the writ petition. The petitioner thereafter submitted a proposal for setting up a restaurant. It was also alleged that the petitioner had purchased land measuring 0-1 biswas and mutation was sanctioned on 31st March, 1967. The petitioner filed CWP No. 240/90/2002, which was allowed vide judgment dated 6.8.2008/4.11.2008 by this court and the matter was remanded to the Financial Commissioner to decide the matter afresh who passed the impugned order dated 5th May, 2009, which is under challenge. 4. Reply to the petition was filed by respondents No. 1 to 3. 5. I have heard Mr. Paresh Sharma, learned counsel for the petitioner and Mr. J.S. Guleria, learned Assistant Advocate General, for respondents No. 1 to 3, and have gone through the record. 6. 4. Reply to the petition was filed by respondents No. 1 to 3. 5. I have heard Mr. Paresh Sharma, learned counsel for the petitioner and Mr. J.S. Guleria, learned Assistant Advocate General, for respondents No. 1 to 3, and have gone through the record. 6. It is clear from a perusal of the record that an order was passed by the Delhi Bench, dated 16.12.1970, vide which the parties were directed to appear again before the Commissioner (Revenue), who was to fix the date for hearing and dispose of the case. Thereafter, the matter was again challenged before this Court and this Court, vide judgment dated 4.11.2008, directed the parties to appear before the Financial Commissioner, who was directed to consider the matter afresh and the previous order of the Financial Commissioner was quashed. Thereafter, the Financial Commissioner decided the matter afresh on 5.5.2009. This is how the matter is before this Court. 7. The material question, which arises for consideration is as to whether the Financial Commissioner in his impugned order had considered all the points raised by the petitioner and has answered them or not, as directed by this Court. I have gone through the order in detail and all the pleas raised before the Financial Commissioner appears to have been considered by him in detail. 8. Coming to the plea raised by the learned counsel for the petitioner that the petitioner had placed on record material qua the land purchased by him earlier or the copy of mutation, it was nowhere alleged that he had raised this point before the Financial Commissioner that he was already owning some land and was, therefore, entitled to the allotment of nautor land and the Financial Commissioner had not considered this point. It was alleged that the petitioner purchased 0-1 biswa of land from one Jawala Parsad and the same was entered into revenue record and mutation was also sanctioned in favour of the petitioner. However, it was not alleged in the petition challenging the order passed by the Financial Commissioner that this record was produced before the Financial Commissioner or that he refused to look into the record or pass appropriate order on this plea. Therefore, this plea of the petitioner cannot be considered that he raised this point before the Financial Commissioner and he did not consider the same. 9. Therefore, this plea of the petitioner cannot be considered that he raised this point before the Financial Commissioner and he did not consider the same. 9. In my view, the assertions made in para 3.20 of the petition, as referred to above, answer the plea raised by the petitioner that he was entitled to the grant of nautor land, which was wrongly cancelled. The Financial Commissioner (Appeals) in the earlier order had clearly made observations that the policy of grant of nautor was primarily enacted for the poor and subsistent farmers to ameliorate their economic well being, so that they could make both ends meet and not for gratuitous enrichment of people for profit and business. No such rules have been pointed out to this Court during the course of arguments that the petitioner was entitled to the grant of nautor land even though he was not a resident of the area and the plea was raised for setting up a petrol pump, which cannot be said to be permissible under the Nautor Rules, which have been referred to by the Financial Commissioner in his impugned order. The Nautor Rules were framed for the enrichment of the poor people and not for running of business for profit and primary condition was that the petitioner should be a resident of the area. 10. A plea has been raised during the course of arguments that the Financial Commissioner had also considered the question that the petitioner was not entitled since he was a resident of Chandigarh. It cannot be said that the Financial Commissioner was not competent to consider the question of eligibility of the petitioner since he was not a resident of the area. Even in case he had purchased some land prior to the allotment of the nautor land in his favour, he does not become a resident of the area after the purchase of some land. This plea was also open to the Financial Commissioner for consideration that the petitioner was not a resident of the area while considering the question of allotment of land in favour of the petitioner as nautor. Thus, the Financial Commissioner was competent to consider this question which he considered and also considered all other questions raised before him. 11. This plea was also open to the Financial Commissioner for consideration that the petitioner was not a resident of the area while considering the question of allotment of land in favour of the petitioner as nautor. Thus, the Financial Commissioner was competent to consider this question which he considered and also considered all other questions raised before him. 11. In regard to the plea raised by the petitioner that the appeal was decided by the Financial Commissioner after many years or say 24 years, the direction was given by this court vide order, dated 4.11.2008 to decide the matter afresh and the question of limitation was not open to be decided afresh after the direction had been issued to the Financial Commissioner to consider the matter. These directions were issued by the Court in view of the earlier orders passed and this plea was not open to the petitioner to challenge that the grant was being cancelled after 24 years. This plea, therefore, has not been considered and raised in regard to the limitation since the limitation has to be considered keeping in view the record, which came to the notice of the authorities and they had passed appropriate orders at different times, as is clear from the facts of the case. In view of the above discussion, it is clear that the order passed by the Financial Commissioner does not suffer from any illegality to be interfered with since the petitioner was not a person eligible for the grant of nautor land in his favour and, therefore, the order was passed rightly by the Financial Commissioner canceling the grant in favour of the petitioner and as such the said order does not call for an interference by this Court in exercise of writ jurisdiction. The writ petition stands dismissed accordingly, so also the pending application(s), if any.