IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 185 of 1998. Reserved on: 26.12.2008. Decided on: 06.01.2009. State of Himachal Pradesh. … … Appellant. Versus Raj Dev. … … Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General. For Respondent: Mr. G.D. Sharma, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Shimla on 15.9.1997 in C.A. No.125-S/13 of 1995. Brief facts necessary for the adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit for declaration and permanent prohibitory injunction. It has been pleaded by the plaintiff that he is permanent resident of Sub-Division, Rohru and is agriculturist by Whether reporters of local papers may be allowed to see the judgment? No. - 2 - profession. Nautor was sanctioned to him by the Sub Divisional Officer (Civil), Rohru on 17.9.1980. He deposited the Nazarana and mutation of ownership was attested in his name. However, the sanction was cancelled by the Deputy Commissioner, Shimla on 26.12.1985 and the mutation was also cancelled on 7th September, 1992. The suit was contested by the appellant/defendant (hereinafter referred to as the defendant for convenience sake). The learned Sub Judge, Rohru decreed the suit on 22.5.1995. The defendant preferred an appeal before the learned District Judge, Shimla. The appeal was dismissed by the learned District Judge, Shimla on 15.9.1997. This regular second appeal is directed against the judgment and decree of the learned District Judge, Shimla, dated 15.9.1997. The regular second appeal was admitted on 11.6.1998 on the following substantial questions of law:- 1. Whether the Civil Court has jurisdiction to decide the mater in controversy? 2. Whether the H.P. Grant of Nautor Land to Landless Persons and Other eligible Persons Scheme 1975 is independently framed and has no co-relation with H.P. Grant of Nautor Land Rules, 1968? 3. Whether the Ld. Courts below have misread the legal provisions of the above said schemes of 1975 and rules of 1968? 4. Whether the Deputy Commissioner was without jurisdiction? The learned Senior Additional Advocate General has strenuously argued that the judgments and decrees passed by both the Courts below are not sustainable in the eyes of law. His contention is that the initial - 3 - sanction made in favour of the plaintiff by the Sub Divisional Officer (Civil), Rohru was not in accordance with law. He has also argued that the Deputy Commissioner, Shimla had the jurisdiction to cancel the sanction made in favour of the plaintiff. Mr. G.D. Sharma has supported the judgments and decrees passed by both the Courts below. I have heard the learned counsel for the parties and gone through the record carefully. All the substantial questions of law being interconnected are taken up together for discussion to avoid repetition of discussion of evidence. PW-1, Raj Dev, plaintiff has deposed that he was granted land in the year 1980 under Special Nautor Scheme measuring 1-16 bighas. This land was banjar and Patwari had issued the necessary tatima on the spot and Kanungo verified the same. The officials of the forest department also visited the spot. It was only on the basis of the report furnished by revenue agencies that the S.D.M., Rohru sanctioned the nautor to him. He deposited Rs.75/- as Nazarana. He was issued patta and mutation was also attested. One Shri Khushi Ram complained against him. The Deputy Commissioner, Shimla cancelled the sanction order on 26.12.1985. His testimony was supported by PW-2 Ishwar Dass, PW-3 Prabhu Dayal and PW-4 Kanwar Singh. PW-4, Kanwar Singh is retired Kanungo. He has stated that he visited the spot on 20.1.1980 and issued tatima Ex.PW-4/A. DW-1 Mohan Singh Kanungo has deposed that the disputed land is situated in circle Bachunch. He verified the mutation of cancellation of nautor. He also deposed that the suit land comes within D.P.F. Kawali. DW-2 Rajesh Chauhan is the Nautor Clerk. - 4 - The suit land was sanctioned in favour of the plaintiff under Special Nautor Scheme, 1975 on 17.9.1980 by S.D.O.(C), Rohru. The mutation was attested and the Nazarana for the same was paid. The patta was issued in favour of the plaintiff. It will be apt at this stage to take note of Rule 9-A of Special Nautor Scheme, 1975, which reads thus:- “Revision: If at any time, it comes to the notice of the Commissioner either through an application made by any person or otherwise, that the allotment of any land under this scheme was made to a person who was not entitled or eligible for such allotment or the allotment was wrong on any other grounds he may call for the record of the case and after making such enquiries as he thinks proper in person or through a Revenue Officer subordinate to him and after giving an opportunity to the parties concerned, he may cancel the grant of land and make such other orders in connection therewith as he deems necessary to the circumstances of the case.” It is evident from the bare perusal of Rule 9-A of the Scheme that it is the Commissioner who could cancel the allotment made under the Scheme and not the Deputy Commissioner. The Deputy Commissioner, Shimla was not competent to cancel the allotment on 26.12.1985. The Himachal Pradesh Nautor Rules, 1968 and H.P. Grant of Nautor Land to Landless Persons and Other Eligible Persons Scheme, 1975 are independent of each other. Separate machinery has been provided under both the schemes. The learned trial Court and the first appellate Court have rightly applied the provisions of 1975 Rules. The order passed by the Deputy Commissioner, Shimla, dated 26.12.1985 is a nullity. He has no jurisdiction to pass the order and it was only the Commissioner who could have cancelled the allotment made in favour of the plaintiff. - 5 - Their Lordships of the Hon’ble Supreme Court in Dhruv Green Field Ltd. versus Hukum Singh and Others (2002) 6 SCC 416 have held that the jurisdiction of the Civil Court will not be barred if the order is nullity. Their Lordships have held as under:- “In the light of the above discussion, the following principles may be re-stated- (1) If there is express provision in any Special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded. (2) If there is no express provision in the Act but an examination of the provisions contained therein lead to a conclusion in regard to exclusion of jurisdiction of a civil court, the Court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of civil court cannot be inferred. (3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity. In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court coupled with the fact that the order passed by the Deputy Commissioner in this case on 26.12.1985 is a nullity, the civil Court had the jurisdiction to entertain the present suit. However, before parting with the judgment, it is made clear that the State is at liberty to - 6 - initiate fresh proceedings against the plaintiff in accordance with law to cancel the allotment. Consequently, in view of the observations made hereinabove, there is no substantial question of law involved in this regular second appeal and the same is accordingly dismissed. No order as to costs. January 06, 2009. (Rajiv Sharma) (sck). Judge.