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2017 DIGILAW 769 (HP)

Ganga Ram v. State of H. P.

2017-07-06

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff instituted a suit against the defendants, wherein, he claimed a relief for declaration and for permanent prohibitory injunction. The suit of the plaintiff stood dismissed by the learned trial Court. In an appeal carried therefrom by the aggrieved plaintiff before the learned First Appellate Court, the latter Court dismissed the appeal, whereupon, it hence concurred with the verdict recorded by the learned trial Court. In sequel thereto, the plaintiff/appellant herein is driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that the land comprised in Khewat Khatauni No. 337 min/472, Khasra No.501, 1571, 505, measuring 1-17-18 bighas, situated at Muhal Nagchala, Illaqua Balh, Tehsil Sadar, District Mandi, H.P. was granted to the plaintiff under the H.P. Grant of Nautor Land to landless and other eligible persons Scheme 1975 (in shot “Scheme”) on 3.11.1981. The said grant was cancelled by the Deputy Commissioner, Mandi on 16.03.1993 in a review petition by the proforma defendant Hari Singh. The order of the Deputy Commissioner, Mandi is ultra vires, illegal and void on the ground that the original order was passed by the Additional Deputy Commissioner and as such, the Deputy Commissioner has no authority to pass the order of cancellation. The plaintiff had made improvements on the land by spending Rs.50,000/- and no compensation has been allowed by the Deputy Commissioner while cancelling the grant. The review petition was not within time, the father of the plaintiff has expired on 22.1.1973 and as such the question of living of the plaintiff with his father was out of question. The plaintiff has also challenged the rule 9-A of the Scheme being ultra vires. 3. The defendants contested the suit and filed written statement. Defendant No.1 has filed separate written statement, wherein, he has taken preliminary objections inter alia jurisdiction, maintainability, cause of action, verification and non service of valid notice as required under Section 80 CPC. On merits, It has been alleged that the plaintiff in fact, applied for grant of nautor land and subsequently was granted suit land. It has been admitted that the said grant was cancelled by the Deputy Commissioner vide order dated 16.3.1993. The said order is legal, valid and binding upon the parties as the plaintiff was not entitled for the grant under the scheme. It has been admitted that the said grant was cancelled by the Deputy Commissioner vide order dated 16.3.1993. The said order is legal, valid and binding upon the parties as the plaintiff was not entitled for the grant under the scheme. The defendant had denied the other averments made in the plaint. It has also been alleged that under rule 9-A of the Scheme the Deputy Commissioner is competent to review the order of grant. In fact, the plaintiff was serving as Chowkidar in Electricity department and his salary was Rs.2917/- per annum and he also inherited 0-3-10bigha land before the grant of suit land, hence, his annual income exceeded more than Rs.3,000/-. Moreover, he was not agriculturist by profession, as such, he was not entitled for the grant of Nautor land. 4. Defendants No.2 filed separate written statement, wherein, he has taken preliminary objections qua jurisdiction and maintainability. ON merits, it was alleged that the plaintiff was not eligible for the grant of nautor land and as such, the same has been rightly cancelled. It has been denied that the plaintiff has made improvement to the tune of Rs.50,000/- over the suit land which is in fact barren land and situated by the side of the river and the same is not fit for cultivation. In fact, the plaintiff alongwith his brother and mother was residing jointly and father of the plaintiff has also obtained nautor land including his mother under the said scheme. 5. The plaintiff/appellant herein filed replication to the written statement of the defendants/respondents wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the order of the Deputy Commissioner Mandi dated 16.3.1993, is void and illegal and liable to be set aside, as alleged?OPP 2. Whether the plaintiff is entitled for the relief of injunction, as prayed for?OPP. 3. Whether the Court has got jurisdiction to try the present suit?OPP. 4. Whether suit is not maintainable in the present form?OPD 5. Whether the plaintiff has made improvements in the suit land? If so, to what extent and its effect?OPD 6. Whether the suit of the plaintiff has been properly valued for the purpose of court fee and jurisdiction?OPP 7. Whether the Court has got jurisdiction to try the present suit?OPP. 4. Whether suit is not maintainable in the present form?OPD 5. Whether the plaintiff has made improvements in the suit land? If so, to what extent and its effect?OPD 6. Whether the suit of the plaintiff has been properly valued for the purpose of court fee and jurisdiction?OPP 7. Whether the suit is within limitation?OPP 8. Whether a valid notice under Section 80 CPC has been issued, if not, its effects?OPP. 9. Relief. 7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom by the plaintiff/appellant before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 8. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal before this Court wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 31.08.2005, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the First Appellate Court as well as trial Court have misread, misconstrued and misinterpreted the oral and documentary evidence of the parties, especially provisions of Rule 9- A of the Grant of Nautor Land to the Landless and Other Eligible Persons Scheme, 1975, which has resulted in grave injustice to the appellant? 2. Whether the order of the Deputy Commissioner dated 16.3.93 is without power and jurisdiction, which is nullity in the eyes of law? Substantial questions of Law No.1 and 2. 9. Under Ex.PA, the suit land was allotted upon the plaintiff “by the” Additional Deputy Commissioner, Mandi “under the” relevant provisions occurring in H.P. Grant of Nautor Land to Landless and other Eligible Persons Scheme, 1975 (in short “Scheme”). The aforesaid grant “made thereunder” of the suit land, through an order borne on Ex. PF. “stood” subsequent thereto hence cancelled, order whereof stands recorded on 16.03.1993. The impugned order, comprised in Ex. The aforesaid grant “made thereunder” of the suit land, through an order borne on Ex. PF. “stood” subsequent thereto hence cancelled, order whereof stands recorded on 16.03.1993. The impugned order, comprised in Ex. PF, ensued from the plaintiff standing disentitled under the relevant scheme “to seek” grant of the suit land, given his falling outside the ambit of “eligible persons” occurring therein, ineligibility whereof ensued from his not falling within the ambit of sub-rule 2 of Rule 2 of the Scheme, wherein, the definition “of other eligible persons” stands scripted. The provisions of sub-rule 2, Rule 2 of the Scheme reads as under:- ““other eligible person” means persons who hold land less than one acre in the State of Himachal Pradesh as a landowner or a tenant and earns his livelihood principally on manual labour on land and intends to take the profession of agriculture and is capable of cultivating the land personally and includes those landowners who were either rendered landless or whose holding were reduced to less than one acre as a result of implementation of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953.” The plaintiff's not falling within definition thereof, arose from the factum “of his” in contemporaneity with the apposite grant, “evidently” working as a Chowkidar in HPSEB besides his in contemporaneity with the making of the order of grant of the suit land upon him, owning land measuring 2-15-7 bighas. For begetting satiation “of” statutory eligibility(ies) enshrined therein, the persons claiming allotment of land under the scheme, “were enjoined to” adduce firm proof with respect “to” at the time contemporaneous to the grant of nautor land, “theirs” owning land measuring less than one acre or to the extent of land holdings comprised in the area aforesaid, theirs holding tenancy thereon, apart therefrom at the time contemporaneous to the grant of nautor land, the persons concerned standing demonstrated to be “earning livelihood by working as farm labours” also theirs intending to take profession of agriculture besides being capable of personally cultivating the land. Even though, the factum of the plaintiff at the time contemporaneous “to the” making of the grant, “evidently did” within the State of Himachal Pradesh hold as owner “land” measuring less than one acre, hence, thereupon he fell outside the domain of the opening part of the relevant exclusionary definition aforesaid of “eligible persons”, encapsulated in relevant sub-rule 2, of Rule 2 of the Scheme nor hence he was rendered ineligible for its grant nor he was disentitled “to from” the authority concerned secure “allotment” vis-a-vis him “of” lands by way of nautor. The learned counsel appearing for the appellant contends that given the appellant hence not infracting the aforesaid mandate occurring in the opening part of the relevant provisions, the further succeeding provisions thereof “purportedly contemplating” that if “in contemporaneity of the apposite grant” he evidently holds employment, he is barred to secure the relevant grant “being not” attractable vis-a-vis him, nor the relevant aforesaid subsequent thereto inclusionary eligibilizing provisions occurring therein, “not” ipso facto warranting attraction vis-a-vis him “given” a close reading of the relevant provisions, “enjoining” qua interpretation being meted thereto “alternatively”, rather than conjunctively nor any of the provisions encapsulated therein warranting theirs being read cumulatively. However, the aforesaid submission evidently falters, given an evident graphic clear existence in the relevant provisions “of” the conjunctive “AND”, conjunctivite whereof, “separates” the earlier therewith inclusionary provisions, within whose prohibitive/barring ambit “the” appellant does not fall”, “from” the immediately subsequent thereto provisions existing therein, subsequent provision whereof stand couched in the phraseology “earns his livelihood principally on manual labour on land and intends to take the profession of agriculture and is capable of cultivating the land personally”, thereupon, both the earlier besides the aforesaid provisions immediately subsequent thereto occurring therein, “obviously” warranted apposite evidence hence standing adduced in respect of “no” infraction of each thereof hence occurring. The learned counsel for the appellant contends that the phraseology “earns his livelihood “principally on manual labour on land and intends to take the profession of agriculture and is capable of cultivating the land personally” occurring in the relevant provisions, “cannot hold” any connotation that any government employment held by any aspirant “at the time” contemporaneous to the grant, per se rendering him construable “to not” fall within its domain. However, the aforesaid submission is also fit for acceptance, given the salutary purpose for making the grant under the Scheme “being” for securing vis-a-vis aspirants “of livelihood” earned from agricultural pursuits also is for ensuring continuity of performance of agricultural pursuits “by the aspirants”, “whereas” with an aspirant at the time contemporaneous to the grant, hence, holding Government employment, would render him obviously “not” construable to be hence dependent upon agricultural pursuits “for his rearing” earnings therefrom, for his sustaining himself, thereupon construing a “government employee”, who, at the time contemporaneous to the grant, hence, holds “employment”, to fall within the ambit/purview of the aforesaid statutory coinage, would frustrate the salutary purpose behind the Scheme rather would unjustly enrich unbeffiting aspirants. Consequently, despite their being no specific statutory phrase/coinage occurring in the relevant scheme, whereupon a government employee stands explicitly barred to derive the benefit of the Scheme/Rules, would not render him being hence construable to be eligible for the grant, especially when rather by purveying the aforesaid evident statutory innate nuance vis-a-vis the aforesaid coinage, a conclusion is earned that hence there being an implied statutory interdiction “under” the relevant Scheme/Rules “against” a government employee deriving the benefit of the Scheme, if, “he” at the time contemporaneous “to” the grant, evidently holds government employment. Since, the appellant did fall outside the signification of the relevant coinage occurring in the relevant rule, he attracted its ousting ill rigour “of his being not entitled to” receive the benefit of the “relevant Scheme”. Consequently, the order of cancellation of grant comprised in Ex.PF, does not gather any stain of vitiation nor does it ensue from a gross mis-appreciation by the authority concerned of the mandate encapsulated in sub-rule 2, Rule 2 of the Scheme nor adduction of affirmative evidence in respect thereto, standing mis-appreciated. 10. The learned counsel appearing for the plaintiff/appellant herein contended, that the apposite impugned order of cancellation, comprised in Ex.PF, stands stained with a gross illegality, illegality whereof imbuing it, ensues from the evident fact of the Deputy Commissioner concerned not holding any jurisdiction to rescind, cancel or review the order, comprised in Ex.PA, whereunder the grant of the suit land by way of nautor under the relevant Scheme “occurred” vis-a-vis the plaintiff nor the order, comprised in Ex. PF, whereby, the grant of suit land upon the plaintiff stood cancelled, holding any jurisdictional vigour or tenacity. PF, whereby, the grant of suit land upon the plaintiff stood cancelled, holding any jurisdictional vigour or tenacity. However, the aforesaid submission is not borne out from the provisions contained in the Scheme. Significantly, Rule 29 of the Himachal Pradesh Nautor Land Rules, 1968 with specific explicity embodies therein an empowerment upon the Deputy Commissioner “to” modify or reverse any grant of land made under the Scheme upon grantee. Since, the Financial Commissioner, Deputy Commissioner, Sub Divisional Officers concerned, comprise all the authorities contemplated therein to be holding the jurisdiction to review any order of grant made under the Scheme, whereupon, with each of the aforesaid hence holding an alike jurisdiction to modify or reverse any grant of land made upon the grantee, thereupon, the Deputy Commissioner held the jurisdiction to cancel the grant. Accordingly, both the substantial questions of law are answered in favour of the respondents and against the appellant. 11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. 12. In view of the above discussion, there is no merit in the instant appeal, which is accordingly dismissed. The impugned judgments and decrees are maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back.