IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 888 of 2008. Reserved on: 18.12.2008. Decided on: 09.01.2009. Jai Chand. … … … Petitioner. Versus State of Himachal Pradesh and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner: Mr. Romesh Verma, Advocate. For Respondents No.1 to 3: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For Respondent nO.4: Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. Rajiv Sharma, Judge: Brief facts necessary for the adjudication of this petition are that the petitioner was sanctioned land measuring 2 bighas 5 biswas under the Himachal Pradesh Grant of Nautor Land to Landless Persons and other Eligible Persons Scheme, 1975 on 11.1.1980. The mutation was Whether reporters of local papers may be allowed to see the judgment? No. - 2 - attested on 9th July, 1982. As per the averments contained in the writ petition while finalising the settlement proceedings, the respondents ignored the entries made in favour of the petitioner and also ignored the entries which were made in Khatauni Bandobast Jadid for the year 1982- 83 as a result of which area of Khasra No.20 was wrongly shown in the ownership of State of H.P. and in occupation of the Estate Right Holders. He moved an application for correction of revenue entries. The District Collector, Kinnaur allowed the application on 27.12.2003. However, he also passed the orders that the Tehsildar, Kalpa should take action for resumption of land. He preferred an appeal before the Divisional Commissioner, Shimla. The appeal was accepted by the Divisional Commissioner on 16.11.2004. The respondent No.4 filed application on 29.7.2005 for resumption of the land allotted in favour of the petitioner. The application was allowed by Sub-Divisional Officer (Civil), Kalpa on 13.3.2006. It appears from the record that the petitioner had assailed this order before the Collector, Kinnaur. He sought the report from the Tehsildar, Kalpa. He submitted the report on 6.10.2006. The Deputy Commissioner, as gathered from the order passed by the Divisional Commissioner, Shimla allowed the appeal on 12.6.2006. The appeal filed before the Deputy Commissioner was assigned No.K.N.R.1-8/06 titled Jai Chand versus Shyam Chand. The respondent No.4 preferred a revision before the Divisional Commissioner, Shimla. The Divisional Commissioner, Shimla accepted the revision on 28.3.2008. Mr. Romesh Verma has strenuously argued that the order dated 28.3.2008 is not sustainable in the eyes of law. He further argued that the land has been allotted to his client on 11.1.1980 and thereafter he - 3 - has broken the same. He has relied upon the report of Tehsildar dated 10.6.2006. His further contention is that once the land has been allotted to his client under the Scheme, it cannot be resumed on the basis of application preferred by respondent No.4 on 29.7.2005. The learned Senior Additional Advocate General appearing on behalf of respondents No.1 to 3 and Mr. Rajnish K. Lal appearing on behalf of respondent No.4 have supported the order dated 28.3.2003. I have heard the learned counsel for the parties and perused the record carefully. The land was sanctioned in favour of the petitioner on 11.1.1980. Mutation was attested on 9th July, 1982. The application preferred by him for correction of revenue entries was allowed by the District Collector, Kinnaur on 27.12.2003. He had also directed for resumption of the land sanctioned in favour of the petitioner. This order was set aside by the Divisional Commissioner in appeal on 16.11.2004. Respondent No.4 has moved an application on 29th July, 2005. His application was allowed by the Sub Divisional Officer (Civil), Kalpa on 13.3.2006. The petitioner has not chosen to place this order on record of this case. He preferred an appeal against this order before the District Collector, Kinnaur. He decided the appeal in his favour on 12.6.2006. The respondent No.4 had assailed this order before the Divisional Commissioner, Shimla. The Divisional Commissioner, Shimla has allowed the revision on 28.3.2008. The first contention of Mr. Verma is that the land has been allotted in favour of the petitioner under the 1975 Scheme, however, the respondent No.4 has moved an application under Rule 12 of the 1968 - 4 - Scheme and thus the same was not maintainable. The plea raised by Mr. Verma is not sustainable. The land in question has been allotted/sanctioned in favour of the petitioner admittedly under the 1975 Scheme. Mentioning of Rule 12 in the application will not in any manner affect the jurisdiction of the Sub Divisional Officer (Civil), Kalpa. It is settled law by now that mentioning of wrong provision is of no consequence if the real power can be gathered from the Act/Rules. Consequently, it is held that mentioning of Rule 12 in the application preferred by respondent No.4 was of no consequence and the order passed by the Sub-Divisional Officer (Civil) was valid. The second contention of Mr. Verma is that his client has broken the land in question and the order passed by the Deputy Commissioner, dated 12.6.2006 based on the report of Tehsildar is valid. The land sanctioned under the 1975 Scheme was to be broken within a period of two years as per para 11 of the Scheme. It is a mandatory condition. The Deputy Commissioner while correcting the revenue entries vide order dated 27.12.2003 has also taken into consideration the report filed by the Tehsildar, Kalpa. Tehsildar, Kalpa has reported that the land was not broken at the time of his visiting the spot in the year 2003. The Tehsildar, Kalpa had reported before the Deputy Commissioner in appeal No.K.N.R.1-8/06 that apple orchard had been planted on the suit land. This report of the Tehsildar is required to be discarded. It does not mention the date when the orchard was planted on the land in question. How the Tehsildar could give a different report from the one which the Tehsildar, Kalpa had already given in the year 2003. As per the earlier report of Tehsildar, Kalpa, the land in question was barren and - 5 - uncultivated. It appears that the Deputy Commissioner has based his order on the report furnished by Tehsildar, Kalpa dated 6.10.2006, which is contrary to the earlier report furnished by Tehsildar, Kalpa in the year 2003. The finding recorded by the learned Divisional Commissioner in his order that the land has not been broken within two years is liable to be sustained. Mr. Rajnish K. Lal has also argued that the petitioner does not belong to village Telingi, thus, the petitioner could not be allotted this land in village Telingi. He has drawn the attention of the Court to the reply filed by respondent No.4 in the present petition. It is averred in para 14 of the reply that the petitioner had already been allotted land in village Kothi. This contention has not been denied by the petitioner by filing any rejoinder. It is thus held that the petitioner could not be allotted land in village Telingi since he had already been allotted land in village Kothi. The land under the 1975 Scheme is to be sanctioned in favour of poor persons. It is specifically averred in the reply filed by respondent No.4 that the petitioner was engaged as Beldar for 20 yeas in Horticulture Department. Lastly Mr. Verma has vehemently argued that the land has been sanctioned on 11.1.1980 and the same could not be cancelled after 26 years. The land allotted in favour of the petitioner has been cancelled primarily on the ground that he had not broken the land within two years as per law. This fact for the first time came to the notice of the Deputy Commissioner on the basis of report of Tehsildar, Kalpa in the year 2003. Tehsildar, Kalpa has reported that the land in question was not cultivated and was lying barren. This report was called for by the Deputy Commissioner in the proceedings filed by the petitioner for correction of - 6 - revenue entries in the year 2003. The other ground for not interfering with the order of the learned Divisional Commissioner is that the petitioner could not get the land allotted under the Scheme in two different revenue estates. If he had been allotted land in village Kothi, he had no right to get the land allotted in village Telingi. Further the land could be resumed if it was not broken within two years as prescribed under Rule 11 of the Scheme. However, it is also pertinent to mention that whatever irregularity might have occurred in the orders passed by the authorities below, the same stood cured by the order passed by the Divisional Commissioner. The Divisional Commissioner is competent authority to cancel the allotment under rule 9(A) of the H.P. Grant of Nautor Land to the Landless Persons and other Eligible Persons Scheme, 1975 if the same is found contrary to the provisions of the Scheme. In fact, the Divisional Commissioner has passed the impugned order under Rule 9(A) of the Scheme. Accordingly, there is no merit in the petition and the same is dismissed. However, there shall be no order as to costs. January 09, 2009. (Rajiv Sharma) (sck). Judge.