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Himachal Pradesh High Court · body

2015 DIGILAW 1625 (HP)

Budhi Singh v. State of H. P.

2015-11-03

RAJIV SHARMA

body2015
JUDGMENT : RAJIV SHARMA, J. 1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kangra at Dharamshala, H.P. dated 1.3.2001, passed in Civil Appeal No. 126-P/III-99. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff) has filed a suit for declaration and injunction against the respondent-defendant (hereinafter referred to as the defendant) stating therein that he is owner-in-possession of a parcel of land measuring 0- 01-08 hectares and the super structure standing thereon, which is part of the land comprised in Khata No. 217 min, Khatauni No. 599 min, Kh. Nos. 1733/1724 and 1722/1495, situated in Mohal Rodi, Mauza Khalet, Tehsil Palampur, Distt. Kangra, H.P., as entered in the jamabandi for the year 1989-90 (hereinafter referred to as the suit land). The land was allotted to him on 13.6.1981. The same was cancelled on 26.5.1993. He was serving in the Indian Army. He has retired in the year 1977. He was houseless. He constructed one room in the year 1979. The construction was done on the assurance given to him by the functionaries of the State. The allotted Khasra number was given to him on 13.6.1981. He deposited the requisite nazrana of Rs. 11.04. He added more rooms in the year 1991. The villagers lodged complaint against him. It is, in these circumstances, order dated 26.5.1993 was passed. The suit land did not form part of the reserve pool. The defendant was estopped from cancelling the allotment. 3. The suit was contested by the defendant. According to the averments made in the written statement, it came to the knowledge of the public of the area that the land has been allotted to the appellant illegally. The enquiry was got conducted by Tehsildar, Palampur. He was found to be resident of Sutrehar, Mauja Kothi Jhikli in Kangra Tehsil and his father was alive. His father owned land measuring 1-27-57 hectares. In these circumstances, the allotment of land to him was cancelled vide order dated 26.5.1993. 4. The replication was filed by the plaintiff. The learned Sr. Sub Judge, Kangra at Dharamshala, H.P. framed the issues on 21.3.1995. The suit was decreed vide judgment dated 29.4.1999. The respondent, feeling aggrieved, preferred an appeal against the judgment and decree dated 29.4.1999. In these circumstances, the allotment of land to him was cancelled vide order dated 26.5.1993. 4. The replication was filed by the plaintiff. The learned Sr. Sub Judge, Kangra at Dharamshala, H.P. framed the issues on 21.3.1995. The suit was decreed vide judgment dated 29.4.1999. The respondent, feeling aggrieved, preferred an appeal against the judgment and decree dated 29.4.1999. The learned District Judge, Kangra at Dharamshala, allowed the same on 1.3.2001. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial questions of law on 21.6.2001: “1. Whether District Judge below erred in appreciating the provisions of Section 8, 8-A of the Act, Clause 2 (bb), 4,5,6,7,8,9,11 and 13 of the Scheme, thereby vitiating the impugned judgment and decree? 2. Whether orders having been passed without there being any authority in ADM, Kangra dated 25.6.1993 are liable to be ignored being totally void abinitio? 3. Whether interpretation regarding the limitation with respect to the Nautor Rules as imparted by learned District Judge has vitiated the findings given in the case in hand?” 6. Mr. Ajay Sharma, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the provisions of the Scheme have been misconstrued by the learned District Judge. The order passed by the Addl. District Magistrate is without jurisdiction. He then contended that the land could not be cancelled since the land has been allotted on 13.6.1981. On the other hand, Mr. Parmod Thakur, Addl. Advocate General for the State has supported the judgment of the first appellate Court. 7. Since all the substantial questions of law are inter-connected, hence are taken up together for discussion to avoid repetition of evidence. 8. I have heard learned counsel for both the sides and have also gone through the judgments and records of the case carefully. 9. PW-1 Ram Saran Dass has testified that the plaintiff constructed a room after retirement from Army. Thereafter, the land was allotted to him. No objection was raised by anyone. PW-2 Mohan Singh has also corroborated the statement of PW-1 Ram Saran Dass. PW-3 Vijay Kumar has proved the certified copy of voter list Ext. PW-3/A. The name of the plaintiff was entered in the voter list of Palampur and plaintiff is resident of Tehsil Palampur. 10. Plaintiff has appeared as PW-4. He deposed that he retired from Army in the year 1977. PW-3 Vijay Kumar has proved the certified copy of voter list Ext. PW-3/A. The name of the plaintiff was entered in the voter list of Palampur and plaintiff is resident of Tehsil Palampur. 10. Plaintiff has appeared as PW-4. He deposed that he retired from Army in the year 1977. He constructed one room over the part of the suit land in the year 1979. He started living there. He applied for allotment and the department assured him of the allotment and also permitted him to make construction. The land was allotted to him on 13.6.1981 vide Ext. PW-4/A. The copy of challan is Ext. PW-4/B. Demarcation was also carried out. The villagers thereafter complained the A.D.M. for cancellation. The land was cancelled. No forest land was involved. He was resident of Village Sutrehar, Tehsil Kangra. He admitted that his father owned land there. He also admitted that he did not disclose that he was resident of Sutrehar and his father was owning land. The enquiry was held by Tehsildar and SDM came to the spot. The notice was issued to him and the allotment was cancelled. 11. PW-5 Bangali Ram, Secretary of Gram Panchayat has proved the copy of Pariwar register vide Ext. PW-5/A. The plaintiff was shown as resident of Thakurdwara. The copy of Missal Hakiat Ext. P-1 is for the year 1989-90. The land was entered in the ownership of the State of H.P. and in possession of the Forest Department subject to the rights of Bartandars. Ext. P-2 is the copy of order of the A.D.M dated 26.5.1993, which was challenged by the plaintiff. Ext. P-3 is the copy of Missal Hakiat Bandobast Jadid whereby the land was entered in the name of the Forest Department. 12. The defendant has tendered in evidence documents Ext. D-1 to D-6. Ext. D- 1 is the report of the Patwari submitted to the A.D.M. Ext. D-2 is the report of the Tehsildar. Ext. D-3 is the copy of order of A.D.M. Ext. D-4 is the copy of jamabandi for the year 1987- 88 of Tehsil Kangra. 13. The land was allotted to the plaintiff on 13.6.1981 vide Ext. PW-4/A. The same was cancelled on 26.5.1993. The plaintiff's father was alive at the time of allotment. He did not belong to the Mohal where the land was allotted to him. D-4 is the copy of jamabandi for the year 1987- 88 of Tehsil Kangra. 13. The land was allotted to the plaintiff on 13.6.1981 vide Ext. PW-4/A. The same was cancelled on 26.5.1993. The plaintiff's father was alive at the time of allotment. He did not belong to the Mohal where the land was allotted to him. PW-1 Ram Saran Dass has himself admitted that the spot was visited by the Tehsildar and SDM. The report was submitted to the A.D.M. He has also issued notice before the cancellation of the land. 14. According to the revenue record, the State was the owner of the land and it was in the possession of the Forest Department. The Forest Conservation Act has come into force in the year 1980. Thereafter, the land could not be allotted to the plaintiff for nonforest purposes. Moreover, the land was in reserve pool. His father owned land measuring 1-27-57 hectares. The complaint was lodged. Thereafter, the Addl. District Magistrate, on the report of the Tehsildar cancelled the allotment. The proceedings were commenced on 2.1.1993 and culminated in the order dated 26.5.1993. The necessary orders have been passed by the Addl. District Magistrate on 26.5.1993 within three years from the date the fraud was detected. He was competent to take suo motu action within three years from the date of knowledge of the fraud. The ratio of the decision in the case of Mangheru Vs. State of H.P. & ors., reported in I.L.R. 1981 H.P. 283, has rightly been applied by the learned District Judge, Kangra. The learned first appellate Court has correctly appreciated the various provisions of the Scheme in vogue. The Addl. District Magistrate had the necessary jurisdiction to go into the entire gamut. The substantial questions of law are answered accordingly. 15. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application (s), if any.