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2016 DIGILAW 1662 (HP)

Balak Ram v. State of Himachal Pradesh

2016-08-10

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned judgment and decree of the learned District Judge (Forest), Shimla, Himachal Pradesh, whereby he affirmed the rendition of the learned Sub Judge 1st Class, Theog, District Shimla, whereby the suit of the plaintiffs stood dismissed. The plaintiffs standing aggrieved by the concurrently recorded renditions against them by both the learned Courts below, concert through the instant appeal to seek reversal of the concurrently recorded judgments and decrees of both the Courts below. 2. The facts necessary for rendering a decision in the instant appeal are that one Teju was owner in possession of the land comprised in Khasra No. 296/264 measuring 3-05 bighas situated in Chak Shilla Gadol Tehsil Theog, District Shimla. He represented the plaintiffs that suit land is free from all encumbrances and he wanted to exchange it with the land of the plaintiffs alongwith water mill at Chak Mahori Tehsil Theog and at that time he wanted the plaintiffs to get the water mill repaired. The plaintiffs accepted his offer and exchange took place, which later on was attested vide mutation No.156. After the said exchange the plaintiffs took possession of the suit land but one Shri Joginder Singh started interfering in the suit land and therefore plaintiffs filed a civil suit against Joginder Singh and Kesru which was decreed in favour of the plaintiffs. However, later on Joginder Singh etc. filed an application to the Sub Divisional Officer (Civil) Theog and thereafter the D.C. Shimla without affording an opportunity of being heard to the plaintiffs or the legal representatives of Teju cancelled the grant of nautor in favour of Teju and ordered for the resumption of the land. 3. The suit of the plaintiffs was resisted by defendant No. 1. The defendant No.1 in its written statement has admitted that the suit land had been granted in Nautor to Teju. It has also been admitted that Teju thereafter exchanged the suit land with the land and water mill of the plaintiffs and that in this behalf a mutation was also passed on 17.1.1980 but it has been pleaded that exchange in question and mutation passed on the basis thereof were wrong and illegal as the suit land was to remain non transferable for a period of 20 years. The contesting defendants supported the orders passed by the revenue officers on the ground that same was very much legal and binding upon the plaintiffs. 4. In the replication filed on behalf of the plaintiffs the averments as contained in the plaint were reiterated and those of the written statement contrary to the plaint were refuted. 5. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- (1) Whether order dated 17.1.1997 passed by the Deputy Commissioner, Shimla in case No. 2/96 is liable to be set-aside as alleged? OPP. (2) If Issue No. 1 is proved in affirmative, whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? (3) Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs besides the learned First Appellate Court dismissed the appeal preferred therefrom before it by the plaintiffs. 7. Now the plaintiffs/appellants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 5.6.2009, this Court admitted the appeal on the hereinafter extracted substantial questions of law:- 1. Whether the judgments of both the Courts below can be sustained which have been passed on the basis of orders of Deputy Commissioner, Shimla dated 17.1.1997 and subsequent order of Divisional Commissioner, Shimla Division dated 13.10.1997, which is without jurisdiction? Substantial question of law 8. The grant of suit land by way of Nautor by the authority concerned to the predecessor in interest of the respondent/defendant No.2 stood cancelled by defendant No.1. The cancellation by defendant No.1 of the apposite grant of the suit land by way of nautor to the predecessor-in-interest of the defendant No.2 stood anvilled upon his transgressing the mandate of the H.P. Grant of Nautor Land to Landless Persons and Other Eligible Persons Scheme, 1975, (hereinafter referred to as the Scheme) relevant Clause 11 whereof stands extracted hereinafter:- “11. Restriction on transfer- The grantee shall not transfer the land granted under this scheme to any person within a period of 20 years from the date of taking over possession of the land by him. Restriction on transfer- The grantee shall not transfer the land granted under this scheme to any person within a period of 20 years from the date of taking over possession of the land by him. In the event of contraventing of the provision of this para the grant shall be liable to be resumed by the State Government and no further allotment of land should be made to him thereafter. Similarly if he fails to break up the land within a period of two years from the date of taking over of the possession the grant shall be liable to be resumed. Provided that the land granted under this scheme shall not be subject to fragmentation by way of partition, transfer or by any other mean. The Revenue Officer shall record these conditions in the mutation orders to be passed by him. His orders shall further be recorded in the remarks column of the Jamabandi in which the mutation pertaining to the land is incorporated. Provided that the allotee may transfer the land by way of mortgage without possession in favour of Primary Agricultural Cooperative Credit Society, a Bank as defined in the H.P. Agricultural Credit Operations and Miscellaneous provisions (Banks) Act, 1972 for the purpose of raising loans for development of such land, raising of crops, purchase of bullocks, seed and fertilizers etc. for bringing the land under cultivation.” whereupon he stood interdicted to alienate it unless 20 years elapsed from the date of his taking its possession whereas before a period of 20 years elapsing since his taking its possession his alienating it by exchanging it with the lands of the plaintiffs, his hence reiteratedly infracting the mandate of the relevant statutory provisions. The learned counsel for the plaintiffs/appellants contends of with uncontrovertedly the grant of the apposite land by way of Nautor standing made by defendant No.1 qua the predecessor in interest of defendant No. 2 under the H.P. Nautor Land Rules, 1968, (hereinafter referred to as the Rules) relevant clause 12(f) whereof stands extracted hereinafter:- “(f) If, the grantee or his legal representative successor alienates the land granted in nautor within 15 years from the date of the Patta, or if the alienates, it at any time for a purpose other than the one for which the land was granted to him. In the event of other kind of alienation the power to the State Government to cancel the grant and to resume the land shall govern the alience also and” whereunder the empowerment of the grantee to alienate it stood fettered unless a period of 15 years from the date of Patta elapses renders the apposite act, of the predecessor in interest of defendant No.2 in exchanging it with the lands of the plaintiffs on the relevant statutory period since the grant standing made in the year 1978 in his favour elapsing, to not invite the invocation qua him of the relevant statutory embargo constituted therein against his therewithin alienating it. He also contends of the relevant clause 11 of the Scheme as attracted vis-a-vis the defendants whereunder an embargo stands foisted against the predecessor in interest of defendant No. 2 alienating it not before 20 years elapsing from the date of his taking possession of the land, embargo whereof stood incorporated by way of an amendment thereto, substitution whereof occurred subsequent to the apposite grant recorded by defendant No.1 vis-a-vis the predecessor in interest of defendant No. 2 renders its attraction qua the relevant grant to hold no statutory validation in law. He contends of its attraction qua the predecessor-in-interest of defendant No.2 being untenable it standing given retrospectivity. The import of sub clause (f) of clause 12 of the H.P. Nautor Land Rules, 1968 prevailing at the time contemporaneous to the grant of the suit land by way of nautor standing made by defendant No.1 to the predecessor in interest of defendant No. 2 vis-a-vis. the import of the relevant substituted embargo of 20 years foisted upon the grantee qua his therewithin standing barred to alienate it, has to be mutually subjected to an incisive scanning besides a rendition qua their respective applicability hereat for hence validating or invalidating the cancellation by defendant No.1 of the relevant grant is imperative. In the event of sub clause (f) of Clause 12 of the Rules standing concluded by this Court to enjoy predominant legal sway qua its applicability besides workability qua the embargo of 15 years constituted thereunder against the grantee therewithin alienating it would obviously save the apposite alienation made by the grantee more so when it palpably occurred on 15 years elapsing since the occurrence of the relevant grant qua him on 15.12.1978. However, the impact of the words “20 years from the date of taking over possession of the land by him” occurring in Clause 11 of the Scheme, phrase whereof stood by a notification of 11.9.1980 substituted in replacement of 15 years, is enjoined to be not belittled given its taking within its sweep the factum of the grantee peremptorily preceding thereto holding possession of the land granted to him by way of nautor by the competent authority under the thereat prevailing relevant Rules whereunder a period of 15 years stands prescribed wherewithin he stands barred to alienate it whereupon the grantee would save the relevant alienation from the vigour of the substituted prescription of a period of 20 years mandatorily elapsing from the date of his taking its possession also the anvil of evident possession of the apposite land taken by the grantee on or after 11.09.1980 would erode the effect of the relevant embargo of 15 years constituted in sub clause (f) of clause (12) of the Rules against the grantee therewithin alienating it nor hence the aforesaid clause would be workable vis-à-vis the grant hereat. In other words, the relevance of the phrase “20 years from the date of taking over possession of the land by him” incorporated by way of an amendment made in the apposite rules in the year 1980 besides in substitution to the hitherto embargo of 15 years, significantly takes away the right of the grantee to save within the ambit of the unamended/unreplaced apposite clause his act of alienating the suit land unless he, in sequel to the relevant grant standing recorded in his favour, holds possession thereof. Precisely also significantly the grantee merely, in, the garb of besides relying upon sub clause (f) of clause 12 of the Rules occurring at page 493 of the H.P. Land Code wherein a prescription occurs restricting his right to alienate it unless 15 years elapses since the date of the relevant grant standing recorded in his favour dehors his prior thereto not holding possession thereof, the grantee cannot save its alienation thereof by him even if 15 years stood elapsed since the apposite grant standing recorded in his favour imminently when the apposite substitution to the relevant statutory embargo though stood engrafted on 11.9.1980 also though it stood not accorded retrospectively yet its holding an expostulation qua the holding of possession thereat by the grantee constituting the relevant consideration for imposition upon him a fetter of 20 years against his therewithin alienating it, would hence render it to be aptly applicable vis-à-vis a grant recorded prior to 11.09.1980. 9. In aftermath the apposite grant would be amenable to rescission besides cancellation even if it stood recorded on 15.12.1978 by defendant No.1 in favour of the predecessor in interest of defendant No. 2 hence palpably preceding the engraftment of the relevant substituted embargo of 20 years made to the relevant clause on 11.09.1980, unless he held its possession prior to 11.09.1980 whereupon the period of 15 years wherebeyond he under the then prevailing apposite rules stood statutorily entitled to alienate it would hence stand attracted qua him. Contrarily if he did not thereat hold its possession also if he took its possession on or after 11.09.1980 the mandate of the substituted period of 20 years against his therewithin standing barred to alienate it would hold vigour dehors the grant standing preceedingly recorded in his favour on 15.12.1978. Contrarily if he did not thereat hold its possession also if he took its possession on or after 11.09.1980 the mandate of the substituted period of 20 years against his therewithin standing barred to alienate it would hold vigour dehors the grant standing preceedingly recorded in his favour on 15.12.1978. The substituted period of 20 years vis-a-vis the erstwhile period of 15 years wherewithin, he, under the rules prevalent at the stage contemporaneous to the apposite grant standing recorded, stood barred to alienate it, when for reasons aforesaid enjoined a preemptory statutory fiat upon the grantee to hold its possession prior to 11.09.1980 for hence his standing foisted with an indefeasible right, to, within the ambit of the duration of the prescription engrafted in the apposite rules prevalent at the time contemporaneous to the apposite grant standing recorded in his favour make its legitimate alienation also of the grantee holding its possession prior to 11.09.1980, being a sine qua non in portrayal of his acquiescing to the grant, contrarily his not holding possession of the land granted to him by nautor under the un-substituted rules would sequel an inference of his abandoning to receive the grant. 10. However, when in pursuance to the grant which occurred on 15.12.1978 the relevant mutation stood attested on 17.1.1980 hence prior to the cut off date qua the operation of the relevant substituted period occurring in clause 11, the grantee is thereupon to be held to thereat hold its possession. Consequently, when at the stage prior to the engrafting of the relevant substituted period vis-à-vis a tenure of 15 years manifested in clause 12(f) period whereof is the relevant statutory period vis-a-vis the grant of the suit land to the predecessor in interest of defendant No.2 besides for on anvil thereof construing qua its alienation by him standing validly effectuated the grantee evidently held possession of the suit land. In aftermath with evident display of his holding its possession prior to 11.09.1980 renders hence attraction qua him the relevant hitherto clause 12(f) of the apposite Rules whereunder a period 15 years stood prescribed wherewithin he was forbidden to alienate it whereas his alienating it on the period aforesaid elapsing, protects his act of alienating the suit land. 11. For the foregoing reasons, the substantial question of law is answered in favour of the plaintiffs-appellants. 11. For the foregoing reasons, the substantial question of law is answered in favour of the plaintiffs-appellants. The judgments and decrees rendered by both the Courts below are quashed and set-aside. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All the pending applications also stand disposed of. Records be sent back forthwith.