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2013 DIGILAW 614 (HP)

STATE OF HIMACHAL PRADESH v. SATPAL

2013-06-28

SURINDER SINGH

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JUDGMENT SURINDER SINGH, J. 1. THE present Regular Second Appeal was admitted by this Court on 29.8.2000 on the following substantial question of law : "Whether in view of the self-contained code governing the land or otherwise of nautor land, the Civil Court has jurisdiction to decide the eligibility or otherwise of the allottee?" Whether reporters of Local Papers may be allowed to see the judgment? yes 2. I have heard the learned Counsel for the parties and carefully gone through the record. Before answering the above question, it would be relevant to give brief account of the facts giving rise to the present appeal. 3. RESPONDENT No. 1 Nek Ram (since deceased), hereinafter referred to as "the plaintiff" had died during the proceedings of this appeal and was substituted by his legal representatives. He had filed a suit for declaration to the effect that order Ext. PW-4/A setting aside the orders of Sub Divisional Officer (Civil) qua the grant to the plaintiff with respect to the suit land being eligible person under the relevant Rules was wrong, illegal and without jurisdiction, hence nonest on the rights of the plaintiff with a consequential relief of injunction against the appellant and proforma respondents, hereinafter referred to as "the defendants". 4. ADMITTED facts are as follows. Vide order Ext. P.W. 4/A, dated 18.11.1988, the Deputy Commissioner, Shimla had cancelled the grant of Nautor made by the Sub Divisional Officer (Civil) Shimla on 21.9.1985, regarding which declaration had been sought in the suit by the plaintiff that it was illegal, void and of no consequence and also prayed for permanent prohibitory injunction restraining the defendants from causing any interference in the suit land. It is also not disputed that the plaintiff was sanctioned 6 biwas of land in the year 1972 and two biswas of land in the year 1991 under the Nautor Rules. When he occupied 6 biswas of land, subsequently he had occupied 18 biswas of land, regarding which in the year 1983 ejectment proceedings under Section 163 of the H.P. Land Revenue Act were initiated against him, wherein on 4.3.1983 the Assistant Collector IInd Grade passed the ejectment order. When he occupied 6 biswas of land, subsequently he had occupied 18 biswas of land, regarding which in the year 1983 ejectment proceedings under Section 163 of the H.P. Land Revenue Act were initiated against him, wherein on 4.3.1983 the Assistant Collector IInd Grade passed the ejectment order. But in appeal Sub Divisional Collector set aside the ejectment order and granted the suit land to the plaintiff under the H.P. Grant of Nautor Land, as he was a landless person and found eligible for the grant under 'the Special Nautor Scheme, 1985' on the payment of "Nazarana", to which the plaintiff had deposited. Later, after about 3 years defendants No. 2 to 4 challenged the order of allotment before the Deputy Commissioner, who had set aside the order of Sub Divisional Collector vide order dated 18.11.1988 Ext. P.W. 2/C, precisely on the ground that the suit land was needed for the school to be used as a playground and an amount of Rs. 10,000/- was granted to Gram Panchayat, Bagi for the construction of the playground. 6. The plaintiff pleaded in the suit that in the year 1972 he had already constructed a house on a portion of the suit land and rest of the land was re- claimed by him, on which he had grown an orchard which is fruit bearing. Precisely, the case of the plaintiff is that after a lapse of about three years from the date of allotment, the Deputy Commissioner was not competent to revoke the grant, especially when there was no ground for condoning the delay and also on any other ground than provided under the Rules governing the grant; thus prayed for the above relief. 5. THE suit was resisted and contested by the defendants. The defendant-State in their written statement took up preliminary objections like non- serving the statutory notice under Section 80 of the Code of Civil Procedure, questioned locus-standi of the plaintiff to file the suit, vis-a-vis took up the objections of limitation, no cause of action and questioned the maintainability of suit, pleaded estoppel and the jurisdiction of the Civil Court was also disputed. On merits, the order passed by the Deputy Commissioner was defended being lawful and valid as the land in question was required for the construction of the school playground. 6. On merits, the order passed by the Deputy Commissioner was defended being lawful and valid as the land in question was required for the construction of the school playground. 6. BESIDES taking similar preliminary objections, the other defendants further pleaded that the suit land was ear-marked for the construction of playground at Jathia Devi school, for which Rs. 10,000/- were sanctioned for developing the site. The construction of the house by the plaintiff is denied and it is also disputed that he had planted fruit trees on the suit land. Further, it was disputed that the plaintiff was an eligible person as he belonged to Mandi District of Himachal Pradesh and land was situated at Jathia Devi, Tehsil and District Shimla. On the pleadings of the parties, the learned trial Court had framed the following issues: 1) Whether the plaintiff is entitled for the relief of permanent injunction, as prayed? .....OPP 2) Whether the suit is not maintainable? .....OPD 3) Whether the suit is bad for want of necessary parties? .....OPD 4) Whether the plaintiff is estopped to file the present suit on want of his act and conduct? ....OPD 5) Whether the plaintiff has no locus stand to file the suit? ....OPD 6) Whether the Court has no jurisdiction to try suit? ....OPD 7) Whether the suit is bad for want of notice? ....OPD 8) Relief. 7. PARTIES were put to trial on the above issues. After hearing the parties and going through the record, the learned trial Court held that the plaintiff was not entitled for the reliefs claimed, precisely, on the ground that under the Scheme, it was Naib Tehsildar concerned, not Sub Divisional Officer (Civil)/Collector, who could have granted the Nautor Land to the plaintiff. Since no proper procedure as prescribed under the Rules was followed, it was rightly revoked by the Deputy Commissioner being within his powers to do so. 8. FEELING aggrieved and dis-satisfied by the impugned judgment and decree, the plaintiff filed an appeal before the learned District Judge, Shimla. The learned District Judge held that the order dated 18.11.1998 Ext. Since no proper procedure as prescribed under the Rules was followed, it was rightly revoked by the Deputy Commissioner being within his powers to do so. 8. FEELING aggrieved and dis-satisfied by the impugned judgment and decree, the plaintiff filed an appeal before the learned District Judge, Shimla. The learned District Judge held that the order dated 18.11.1998 Ext. P.W. 4/A passed by the Deputy Commissioner, Shimla cancelling the grant of suit land in favour of the plaintiff under the H.P. Grant of Nautor Land to Landless and other Eligible Persons Scheme, 1987 was illegal and void on the ground that under para 9-A of the Scheme aforesaid as a grant can be revoked only if it is found that the person in whose favour it was made was not entitled or eligible for allotment or the allotment was wrong on any other grounds mentioned in the Rules; but there was nothing on record showing that the grant made in favour of the plaintiff was wrong on any statutory ground. But on the perusal of the impugned order, it was observed that the Deputy Commissioner was convinced that the plaintiff fell within the eligibility criteria and was offered alternative site, which was not acceptable to him for the reason that he had already developed the land and raised the construction on it. On examining the facts, I feel that the ground on which the Deputy Commissioner revoked the grant already made in favour of the plaintiff was merely on the representation of the Panchayat that the land stood ear-marked for the construction of school playground and an amount of Rs. 10,000/- was sanctioned for its development. But it was merely an assertion without any substance and any supporting document to substantiate this plea. Further, there is no such condition under para 9-A of the Scheme that in such a situation, the grant could also be cancelled. Thus, that would mean that initial allotment was wrong and illegal. The reasoning given by the First Appellate Court is clear that the Rule aforesaid provides for the grant of stipulating the objections on its cancellation or revoking the grant which are self-contained and explanatory in the scheme which cannot be substituted by any other condition which is not included therein. 9. IT is not disputed that the plaintiff did not fall in the eligibility criteria. 9. IT is not disputed that the plaintiff did not fall in the eligibility criteria. He had raised the construction, re-claimed the suit land and planted orchard. Thus, on the representation of the defendants No. 2 to 4 that it was required or ear- marked for playground, the Deputy Commissioner could not have passed the impugned order for cancelling the grant contrary to the statutory rules. Any order, which lacks jurisdiction or is wrong and illegal, is nonest on the right of the plaintiff. Since the grant is governed under the above scheme, it provides eligibility criteria and also grounds to revoke it. The revenue court did not hold the plaintiff ineligible, its cancellation vide order Ext. PW-4/A is held to be wrong and such civil court is competent to hear and determine the matter. The substantial question of law stands accordingly answered. 10. NO other point urged or pressed. There is no error with respect to the findings of fact recorded by the learned First Appellate Court, as such, the appeal is devoid of any merit, hence dismissed. The parties are left to bear their own costs.