Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 97 (HP)

Thakur Dass v. State of Himachal Pradesh

2015-02-23

RAJIV SHARMA

body2015
JUDGMENT Rajiv Sharma, J. 1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Bilaspur, H.P. dated 06.9.2014, passed in Civil Appeal No. 46/13 of 2013. 2. Key facts, necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff) has instituted suit for declaration with consequential relief of permanent prohibitory injunction and in the alternative for possession against the respondents-defendants (hereinafter referred to as the defendants). The plaintiff claimed himself to be in possession of the suit land comprised in Kh. No. 34, Khewat No. 26 min, Khatoni No. 28 min, measuring 4.4 bighas situated in village Kuljiar, Pargana Baseh, Tehsil Jhandutta, District Bilaspur, H.P., by way of regularization vide order dated 26.3.1990 (Ext. PW-1/F). The nautor land was granted to him by the Deputy Commissioner, Bilaspur. Mutation No. 230 was attested on 12.06.1990. The plaintiff deposited the price of land i.e. ‘Nazrana’ amounting to Rs. 11,400/- as forest produce. Order dated 26.3.1990, was assailed by Smt. Kaushalya Devi (now deceased), wife of defendant No. 2 Krishanu Ram, by filing objections before the Deputy Commissioner, Bilaspur. The review application was accepted by the Deputy Commissioner, Bilaspur on 14.10.1998. Out of the total land measuring 4.4 biswas, only 7 biswas of land was regularized and the remaining land was cancelled. The plaintiff filed an appeal before the Divisional Commissioner. The Divisional Commissioner, partly allowed the appeal and modified the order to the extent that 19 biswas of land was allowed in favour of the plaintiff. The plaintiff challenged the order before the Financial Commissioner. The Financial Commissioner, dismissed the same on 12.9.2006. According to the plaintiff, the respondent-State has initiated the proceedings for his dispossession. 3. The suit was contested by the defendants. According to the written statement filed, the review application was maintainable as per Rule 29 of the H.P. Grant of Nautor Rules, 1968. The suit land was forest land. 4. The replication was filed by the plaintiff. The learned Civil Judge, (Senior, Division), Ghumarwin, District Bilaspur dismissed the suit on 16.08.2013. However, he clarified that the judgment shall have no bearing upon land measuring 19 biswas allotted to the plaintiff. The appellant-plaintiff, feeling aggrieved by the judgment and decree dated 16.08.2013, filed an appeal before the learned District Judge, Bilaspur. The learned District Judge, Bilaspur, dismissed the same on 6.09.2014. However, he clarified that the judgment shall have no bearing upon land measuring 19 biswas allotted to the plaintiff. The appellant-plaintiff, feeling aggrieved by the judgment and decree dated 16.08.2013, filed an appeal before the learned District Judge, Bilaspur. The learned District Judge, Bilaspur, dismissed the same on 6.09.2014. He also ordered the State Government to take possession of the remaining land i.e. 19 biswas of land as well. Hence, this regular second appeal. 5. Mr. Rajiv Jiwan, Advocate, for the appellant has vehemently argued that the review application was not maintainable being barred by limitation. He then contended that the learned District Judge was not competent to order for taking back of 19 biswas of land in favour of respondent-State. On the other hand, Mr. R.P. Singh, Assistant Advocate General has supported the judgment of the learned first appellate Court dated 6.9.2014. 6. I have heard the learned Advocates for the parties and gone through the records of the case carefully. 7. The land which was allotted to the plaintiff measuring 4.4 biswas is a forest land. The land was allotted to the plaintiff on 26.3.1990. The mutation was attested on 12.6.1990. The regularization/allotment of land in favour of the plaintiff was assailed by the private defendant. The order was reviewed on 14.10.1998. The Deputy Commissioner, has sought the permission of the Divisional Commissioner before reviewing the order on 12.9.1995. The Deputy Commissioner has found the plaintiff to be in possession of 7 biswas of land. However, the Divisional Commissioner found the plaintiff to be in possession of 19 biswas of land. He ordered 19 biswas of land to be retained by the plaintiff. This order was upheld by the Financial Commissioner, as per order dated 12.9.2006. 8. The plaintiff has appeared as PW-1. PW-2 Baldev Singh has deposed that the plaintiff has deposited the amount. PW-3 Ram Murti deposed about the possession of the plaintiff. 9. DW-1 Krishnu Ram is the real brother of the plaintiff. DW-2 Joginder Singh is the Patwari. He deposed that the Deputy Commissioner has reviewed the order of granting land to the plaintiff. He clarified that the land allotted to the plaintiff was forest land. The nature of the land was “Charand Jangle Dehati”. The permission of the Central Government was required in order to get the land regularized. The plaintiff was also having land measuring 11.4 bighas prior to 1990. He clarified that the land allotted to the plaintiff was forest land. The nature of the land was “Charand Jangle Dehati”. The permission of the Central Government was required in order to get the land regularized. The plaintiff was also having land measuring 11.4 bighas prior to 1990. DW-3 Bishan Dass has produced the case file No. 79/90 whereby the plaintiff was allotted Kh. No. 34. According to him, the department had raised objection. The land allotted to Thakur Dass was forest land. The land could not have been allotted to him. 10. According to Rule 29 of the Himachal Pradesh Nautor Land Rules, 1968, the Deputy Commissioner, may either of his own action or on the application of any party interested review, and, on so reviewing, modify, reverse or confirm any order passed by himself or any of his predecessors-in-office. However, in case the Deputy Commissioner himself has not passed the order, he has to seek the sanction of the Divisional Commissioner. In the instant case, the Deputy Commissioner has sought the prior sanction of the Divisional Commissioner before reviewing the order. The application could be filed as per Rule 29(c) before the Financial Commissioner or the Sub- Divisional Officer (Civil), as the case may be, seeking review and in case the application is filed beyond 90 days, he can satisfy the competent authority that there was sufficient cause for not making the application within that period. In the instant case, the plaintiff has obtained the land in contravention of the mandatory provisions of the Forest Conservation Act, 1980. The aforesaid land could not be allotted/regularized in his favour, more particularly, when the forest department had also raised objection as per the statement of DW-2 Joginder Singh, Patwari and DW-3 Bishan Dass. 11. The land, as noticed, hereinabove, is a forest land. The same could not be regularized by the revenue authorities. There is a detailed procedure, the manner in which, the forest land has to be dealt with under the Forest Conservation Act, 1980. It has come in the statements of DW-2 Joginder Singh and DW-3 Bishan Dass that it was “Charand Jangle Dehati” i.e. forest land. The plaintiff was already in possession of land measuring 11.4 bighas prior to 1990. There is a detailed procedure, the manner in which, the forest land has to be dealt with under the Forest Conservation Act, 1980. It has come in the statements of DW-2 Joginder Singh and DW-3 Bishan Dass that it was “Charand Jangle Dehati” i.e. forest land. The plaintiff was already in possession of land measuring 11.4 bighas prior to 1990. In view of the specific mandatory provisions of the Forest Conservation Act, 1980, neither the Deputy Commissioner nor the Divisional Commissioner were competent to transfer/regularize the land in favour of the plaintiff. The retaining of the land by the Divisional Commissioner vide order dated 13.3.2006 was nullity in the eyes of law. The learned District Judge, has not exceeded his jurisdiction by ordering the taking back of 19 biswas of land regularized by the Divisional Commissioner vide order dated 13.3.2006. 12. The State Government has no authority to frame a policy of regularization of forest land against the very letter and spirit of the Forest Conservation Act, 1980. The framing of such like policies encourages the dishonest persons to encroach upon the government land. The framing of such like policies is against the rule of law. The State should encourage honesty and not dishonesty by framing regularization policies to protect the forest/Government land. The substantial questions of law are answered accordingly. 13. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any.