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Himachal Pradesh High Court · body

2014 DIGILAW 1535 (HP)

Lalman v. State of Himachal Pradesh

2014-10-30

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. Petitioner submitted an application for the grant of Nautor land on 16.7.1969 to the Sub Divisional Officer (Civil), Sarkaghat. He rejected the application on 19.1.1972. Petitioner preferred an appeal before the Deputy Commissioner, Mandi. He allowed the same on 27.6.1973 and the case was remanded back to the Sub Divisional Officer (Civil), Sarkaghat. The Sub Divisional Officer (Civil) again rejected the case on 4.8.1993. Petitioner filed an appeal before the Deputy Commissioner, Mandi. He allowed the same on 19.12.1994. Consequently, the Sub Divisional Officer (Civil), Sarkaghat sanctioned Nautor land in favour of the petitioner comprising Khasra No. 745/1 measuring 0-40-00 hectares situated in Muhal Sherpur, Tehsil Dharampur on 7.10.1995. Respondents No.3 to 5 filed an appeal against the order dated 7.10.1995 before the Deputy Commissioner, Mandi vide Nautor Appeal No.3. The Deputy Commissioner, Mandi allowed the same on 1.5.2000. According to him, land in dispute was Dhank and not fit for cultivation and the petitioner has not cultivated the land within a period of two years after the grant. Petitioner filed an appeal before the Additional Commissioner (Appeals) bearing Appeal No. 60/2001 against the order dated 1.5.2000. The Additional Commissioner (Appeals) allowed the appeal on 10.7.2001 and remanded the matter to the Deputy Commissioner, Mandi. Deputy Commissioner, Mandi allowed the appeal on 12.7.2004 upholding the grant made by the Sub Divisional Officer (Civil), Sarkaghat vide order dated 7.10.1995 in favour of the petitioner. Respondents No.3 to 5 filed an appeal before the Divisional Commissioner, Mandi Division, Mandi. He dismissed the same on 15.2.2010. Respondents No. 3 to 5 filed a Revision No. 123/2010 before the Financial Commissioner (Appeals). He allowed the same on 19.7.2013. According to him, neither the Sub Divisional Officer (Civil), Sarkaghat nor the Deputy Commissioner, Mandi was competent to grant Nautor in favour of the petitioner. According to him, grant of Nautor was void ab initio. Order of the Deputy Commissioner, Mandi dated 12.7.2004 and the Divisional Commissioner, Mandi Division, Mandi dated 15.2.2010 were set aside. Hence, the present petition. 2. Respondents No.1 and 2 have filed the reply. There is a reference to various instructions issued from time to time governing the grant of Nautor. The sum and substance of the reply is that Nautor land has been sanctioned when there was complete ban as per order dated 19.3.1990. Respondents No.3 to 5 have filed the reply. 2. Respondents No.1 and 2 have filed the reply. There is a reference to various instructions issued from time to time governing the grant of Nautor. The sum and substance of the reply is that Nautor land has been sanctioned when there was complete ban as per order dated 19.3.1990. Respondents No.3 to 5 have filed the reply. They have supported the decision of the Financial Commissioner (Appeals) dated 19.7.2013. 3. We have heard the learned counsel for the parties and have gone through the pleadings carefully. 4. What emerges from the facts enumerated hereinabove is that the Sub Divisional Officer (Civil) has sanctioned the Nautor land in favour of the petitioner comprising Khasra No. 745/1 measuring 0-40-00 hectares situated in Muhal Sherpur, Tehsil Dharampur on 7.10.1995. The Deputy Commissioner, Mandi has cancelled the same in an appeal filed by respondents No.3 to 5 on 1.5.2000. According to him, petitioner has not cultivated the land and it was a Dhank. Petitioner has filed an appeal before the Additional Commissioner (Appeals). He allowed the same and remanded the matter back to the Deputy Commissioner, Mandi on 10.7.2001. The Deputy Commissioner, Mandi has held that petitioner was duly eligible. Respondents No.3 to 5 could not be issued any permit after the Nautor has been sanctioned in favour of the petitioner vide order dated 12.7.2004. Order dated 12.7.2004 was upheld by the Divisional Commissioner, Mandi Division, Mandi on 15.2.2010. He has taken into consideration the contention raised by the private respondents that petitioner has encroached upon the Government land measuring 10-0-0 bighas. He has referred to the entry made in the column of cultivation as per copy of Jamabandi for the year 1999-2000, i.e. ?Kabja Malik Tabbe Haquk Bartandaran Mutabik Naqusha Bartan?. According to these entries, respondents No.3 to 5 had only user rights to cut the grass etc. from the land. The fact of the matter is that once the nautor has been sanctioned in favour of petitioner on 7.10.1995, those rights stood extinguished. Financial Commissioner (Appeals) while allowing the revision preferred by respondents No. 3 to 5 has relied upon instructions issued on 7.1.1975 whereby the powers of revenue officials to sanction nautors, except in favour of harijans and agricultural landless labourers was withdrawn. Thereafter, clarification was issued by the State Government for the grant of Nautor on 24.12.1980. Financial Commissioner (Appeals) while allowing the revision preferred by respondents No. 3 to 5 has relied upon instructions issued on 7.1.1975 whereby the powers of revenue officials to sanction nautors, except in favour of harijans and agricultural landless labourers was withdrawn. Thereafter, clarification was issued by the State Government for the grant of Nautor on 24.12.1980. According to this, land could be granted only in the tribal areas of the State and for other districts and areas only for construction of residential house, cow-sheds and Gharats etc. The ban was lifted vide Government letter dated 26.12.1989. Complete ban was imposed on 19.3.1990. Financial Commissioner (Appeals) has not taken into consideration the subsequent letter issued on 1.9.1993 wherein letter issued on 19.3.1990 has been clarified. Text of letter dated 1.9.1993 reads as under: “I am directed to say that certain doubts have been expressed by some of the Deputy Commissioners about the implications of this department telex of even number dated 19th March, 1990 vide which the ban was imposed on the grant of nautor land. The matter has been considered by the Govt. and following clarifications are issued for guidance:- i) The ban is applicable on fresh Grant of Nautor. ii) The ban will not be on grants given as a result of Appeals, Revisions and Reviews filed before the Deputy Commissioners, Divisional Commissioners and Financial Commissioner. You are accordingly advised to take action in the light of these clarifications.” 5. It is evident from the letter dated 1.9.1993 that the ban was not relatable to grants as a result of appeals, revisions and reviews filed before the Deputy Commissioners, Divisional Commissioners and Financial Commissioner. It was applicable only on fresh grant of nautor. These clarifications have direct bearing in this case. Petitioner has submitted application on 16.7.1969 and it remained under litigation upto 7.10.1995 when nautor land was sanctioned in favour of petitioner for the first time by the Sub Divisional Officer (Civil), Sarkaghat. The notifications issued qua grant of land on 7.1.1975, 24.12.1980 and 19.3.1990 were applicable prospectively and could not affect the proceedings which had already commenced before the issuance of these notifications. Petitioner has acquired a right to get the land sanctioned on the basis of rule position at the time of submission of an application. This right could not be taken away by applying the notifications retrospectively. 6. Petitioner has acquired a right to get the land sanctioned on the basis of rule position at the time of submission of an application. This right could not be taken away by applying the notifications retrospectively. 6. Accordingly, in view of the discussion and analysis made hereinabove, the petition is allowed. Annexure P-5 dated 19.7.2013 is set aside. Orders dated 7.10.1995 passed by the Sub Divisional Officer (Civil), Sarkaghat, Annexure P-2 dated 12.7.2004 passed by Deputy Commissioner, Mandi, Annexure P-3 dated 15.2.2010 passed by Divisional Commissioner, Mandi Division, Mandi are upheld. Respondents No.1 and 2 are directed to get these orders executed within a period of eight weeks from today. However, before putting the petitioner in possession of the land sanctioned vide letter dated 7.10.1995, the Deputy Commissioner, i.e. respondent No.2 shall ascertain within a period of three weeks from today whether the petitioner has encroached upon the Government/Forest land and in case after the inquiry it is found that the petitioner has encroached upon the Government/Forest land, all necessary steps shall be taken for the eviction of the petitioner from the Government/Forest land by instituting eviction proceedings and to complete the same in a time bound manner. If the petitioner is found encroacher on the Government/Forest land, he would not be put in possession of the Nautor land till his eviction. Pending application(s), if any, also stands disposed of.