IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA R.S. A. No. 252 of 1999 Date of Decision : September 15, 2010 Smt. Tulsi and another Appellants. Versus Shri Bansi Ram and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Dushyant Dadwal, Advocate, for the appellants. For the respondents : Mr. B. K. Malhotra, Advocate, for respondent No. 1. Mr. Vikas Rathore, Deputy Advocate General for respondents No. 2 to 6. Sanjay Karol, J. (Oral) This is an appeal filed under Section 100 of the Code of Civil Procedure. 2. Plaintiff Sh. Chamaru Ram, predecessor in interest of the present appellants, filed a suit for declaration and injunction against defendants No. 1 to 5 being the State of Himachal Pradesh and its officials and Sh. Bansi Ram, defendant No. 6. In terms of judgment and decree dated 20.9.1993 passed by the learned Sub Judge, Ist Class, Jogindernagar, Distt. Mandi, H.P. in Civil Suit No. 193 of 1991, titled as Sh. Chamaru Ram versus State of H.P. and others, the trial Whether reports of Local Papers may be allowed to see the judgment? 2 Court set aside the order dated 9.3.1988 passed by the Divisional Commissioner, Mandi confirmed by the Financial Commissioner, Government of H.P. vide order dated 9.8.1991. Plaintiff was declared to be owner of the suit land and defendant No. 6 was restrained from interfering with the same. 3. In an appeal filed by defendant No. 6, the same stands reversed by the learned Additional District Judge, Mandi, Distt. Mandi, H.P. in terms of its judgment and decree dated 12.3.1999 passed in Civil Appeal No. 73 of 1993, titled as Bansi Ram versus Chamaru Ram through LRs and others. 4. This appeal was admitted on the following substantial questions of law:- “1. Whether the judgment passed by the learned appellate court is vitiated for ignoring the provisions of Rule 29(C) of the H.P. Nautor Rules wherein the application for review filed by respondent No. 1 was barred by limitation and no explanation for condonation of delay has been filed? 2. Whether judgment passed by the learned appellate Court can be sustained in view of Rule 29 of the H.P. Nautor Rules wherein an order of review is to be passed by the authority who made the allotment which in the present case was done by the Sub Divisional Officer (Civil) and no provision for review has been sought by him? 3. Whether the learned court below was correct in not considering the fact that two appeals and a revision preferred by respondent No. 1 were dismissed and the 3 orders having attained finality, the power of review could not be revoked? 4. Whether the learned appellate court was correct in ignoring the settled principle of law that review can be resorted only on the principles annunciated in Order 47 Rule 1 of the code of Civil Procedure and not as a re- trial of the entire matter, further, there being no fresh discovery of evidence or other matter which would grant jurisdiction to the Divisional Commissioner to review the order? 5. Whether the learned court was correct in invoking the provisions of Rule 30 of H.P. Nautor Rules when no such power of revision was available to the Divisional Commissioner and Section 29 excluded the applicability of Rule 30? 6. Whether the appellate court was correct in ignoring the fact that the appeal had abated since the plaintiff, Shri Chamaru Ram was dead on 9.7.94, his legal representatives Smt.Gita and Shabru had not been impleaded as representing his Estate?” 5. Facts necessary for adjudication of the present appeal are simple. 6. On 22.10.1973 Sh. Chamaru Ram was sanctioned Nautor land under the Himachal Pradesh Nautor Land Rules, 1968 (hereinafter referred to as the Rules) by the Sub Divisional Officer (C) Jogindernagar. 7. In the year 1975 State of Himachal Pradesh decided to allot land to landless persons under the Himachal Pradesh Nautor Land to Landless Persons and other Eligible Persons, Scheme. Part of the 4 land already sanctioned to the plaintiff, by mistake was allotted to defendant No. 6 Sh. Bansi Ram who assailed original order of grant made in favour of the plaintiff by way of an appeal. This appeal was dismissed by the competent authority. Sh. Bansi Ram instituted another appeal which also was dismissed by the competent authority vide order dated 24.1.1981. The dismissal was on the ground of limitation and also the fact that the first appeal stood dismissed. Sh. Bansi Ram did not sit quite and filed a revision petition before the Divisional Commissioner Kangra. However in terms of order dated 9.7.1985 Revision Petition No. 87/84 was also dismissed. 8. The matter however did not rest there. On 15.2.1988 Sh. Bansi Ram filed an application for review. The matter was looked into and the State filed petition on which the Divisional Commissioner Mandi passed order dated 9.3.1988. He recommended the review of the original grant made by the Sub Divisional Officer (C) in favour of the plaintiff. Challenging the same plaintiff filed a revision petition which stood dismissed in terms of order dated 9.8.1991. 9. Thus plaintiff assailed the aforesaid orders dated 9.3.1988 and 9.8.1991 in the suit which is the subject matter of the instant proceedings. 10. There is no dispute that the grant made in favour of plaintiff is governed by the Rules. Rule 6 specifically stipulates that the grant of Nautor land “shall be restricted only to the extent by which his 5 total holding falls short of 20 Bighas”. Rule 7 stipulates the land in possession of an allottee as a tenant to be included in this limit. The grant is to be made on an application which is to be filled in the prescribed format stipulated under Rule 13. If the sanction is secured by suppression of material facts in the nautor application the Government has power to resume the land allotted under the Rules. For the purpose of deciding the appeal, the other relevant provisions being Rule 29 and 30 are reproduced as under:- “29. Review. – The Financial Commissioner or the Commissioner or the Deputy Commissioner or the Sub- Divisional Office (C) may either of his own motion or on application of any party interested review, and modify, reverse or confirm any order passed by himself or any of his predecessors in office, provided as follows:- (a) when the sub-Divisional Officer (C) thinks it necessary to review any order, he shall first obtain the sanction of the Deputy Commissioner; (b) when the Commissioner or the Deputy Commissioner think it necessary to review any order which he has not himself passed, he shall first obtain the sanction of the Financial Commissioner in the case of the Commissioner and the Commissioner in the case of the Deputy Commissioner; (c) the application for review of an order shall not be entertained unless it is made within 90 days from the passing of the order and unless the applicant satisfied the Financial Commissioner or the Commissioner or the Deputy Commissioner or the Sub-Divisional Officer (Civil) as the case may be, that 6 he had sufficient cause for not making the application within that period; (d) an order shall not be modified or reversed in review unless reasonable notice has been given to the parties effected thereby to appear and be heard in support of the order; (e) an order against which an appeal has been preferred shall not be reviewed.” “30. Revision. – (1) The Financial Commissioner may at any time call for the record of any case pending before or disposed off by any officer subordinate to him. (2) The Commissioner may at any time call for the record of any case pending before or disposed off by any officer subordinate to him. (3) If, in any case, in which the Commissioner has called for the record, he is of the opinion that the proceeding taken order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Financial Commissioner. (4) The Financial Commissioner may in any case called for by himself under sub-rule(i) or reported to him under sub- rule (iii) pass such order as he thinks fit. Provided that he shall not under this rule pass any order reversing or modifying any proceedings or orders of the subordinate Revenue Office without giving the parties concerned an opportunity of being heard.” 11. It cannot be disputed that as on the date when the grant was made in favour of the plaintiff, he was already owning and possessing 6-1-12 and 0-6-0 bighas of land in revenue estate Dheludhaar. This is evident from revenue record Ext. D-3 and D-4. It also cannot be disputed that on the said date, as tenant he was possessing land measuring 12-4-3 bighas in revenue estate Groru. 7 Revenue record Ext. D-8 is to this effect. Thus as on the date when grant was made in his favour plaintiff was possessing 19-5-8 bighas of land which is little less than 20 bighas. 12. The Full Bench of this Court in Mangheru etc. versus The State of Himachal Pradesh and others etc., AIR 1982 Himachal Pradesh 1, has held that under Rules 29 and 30 authorities had sufficient power to review the orders of grant and limitation of three years for the same would commence from the date of uncovering of fraud. This position stands reiterated in Devi Singh versus State of H.P. and others, 1999(1) Shim. L.C. 365. 13. Order dated 9.3.1988 reviewing the grant made in favour of the plaintiff is Ext. P-2. From the same it is evident that on the application filed by Sh. Bansi Ram the authorities called for the reports from the field and it was discovered that plaintiff had not occupied the allotted land. He was actually in possession of 20 bighas (approx) of land. In this background the authority exercised its power under the relevant provisions of the Rules. 14. There is no doubt that for Review, Rule 29 lays down the period of limitation to be 90 days. There is also no doubt that the order against which an appeal has been preferred is not to be reviewed. But however the exercise of power in the instant case is under the revisionary powers of the Financial Commissioner/Commissioner under Rule 30. In terms of order 8 dated 9.3.1988 the Divisional Commissioner Mandi had only recommended the case to the Financial Commissioner. The ultimate exercise of the power, with which the plaintiff is aggrieved, is under Rule 30 for which no limitation is prescribed. In the instant case the facts were discovered by the State on the application for review filed by Sh. Bansi Ram and after verification of the same on the spot it was discovered that plaintiff was otherwise not entitled to the grant, apart from the fact that he had suppressed information about being in possession of certain land as a tenant. The extent and scope of power to be exercised by the competent officers under Rules 29 and 30 is separate and independent. Exercise of power under Rule 30 is not subject to the rigours of Rule 29. 15. Legal Representatives of Sh. Chamaru Ram were allowed to be brought on record by the learned lower appellate Court which order was accepted by the plaintiff. This question does not arise for consideration. 16. The ratio of law laid down in the following decisions cited by Mr. Dushyant Dadwal, learned counsel for the appellants becomes irrelevant:- Devaraju Pillai versus Sellaya Pillai, AIR 1987 SC 1160; Delhi Administration versus Gurdip Singh Uban and others, AIR 2000 SC 3737; Haridas Das versus Smt. Usha Rani Banik and others, AIR 2006 SC 1634; Rajasthan SRTC and others versus Khadarmal, (2006) 1 SCC 59; Orissa Hydro Power Corporation Ltd. versus Santwant Singh Gill (D) by LRs and others, (2006) 9 SCC 663; North 9 India Glass Industries versus Jaswant Singh and others, 2003 SC 234; Printers (Mysore) Ltd. versus M.A. Rasheed and others, (2004) 4 SCC 460; State of Rajasthan versus Chanda @ Chand Kori and others, (2007) 11 SCC 402; Ramchandra Shankar Deodhar and others versus State of Maharastra and others, AIR 1974 SC 259; K.R. Mudgal and others versus R P. Singh and others, AIR 1986 SC 2086; P. K. Ramchandran versus State of Kerala and another, (1997) 7 SCC 556; Kamlesh Babu and others versus Lajpat Rai Sharma and others, (2008) 12 SCC 577; Gannmani Anasuya and others versus Parvatini Amarendra Chowdhary and others, (2007) 10 SCC 296; Hardesh Ores (P) Ltd. versus Hede and Company, (2007) 5 SCC 614; Binod Bihari Singh versus Union of India, (1993) 1 SCC 572; Panchu Gopal Bose versus Board of Trustees for Port of Calcutta, (1993) 4 SCC 338; M/s Roshan Lal Kuthiala and another versus Raja Rana Yogendra Chandra and others, 1995 (1) Sim. L.C. 23; Secretary, Ministry of Works & Housing Govt. of India and others versus Mohinder Singh Jagdev and others, (1996) 6 SCC 229; Thayammal versus Rangaswami Reddy and others, AIR 1956 Madras 15; Ramnarain Lal and others versus Dr. Radharaman Das and others, AIR 1954 Patna 393; Kawdu versus Berar Ginning Co. Ltd. Akot and others, AIR 1929 Nagpur 185; Debi Sahai-Gulzari Mal of Delhi versus Basheshar Lal-Bansi Dhar, AIR 1928 Lahore 919; Shanker Dass Naraindass versus Sita Ram Jawala Parshad, 1956 Pepsu 83; Manindra Land and Building Corn. Ltd. versus Bhutnath 10 Banerjee and others, 1964 SC 1336; Mahesh Yadav and another versus Rajeshwar Singh and others, (2009) 2 SCC 205. 17. The substantial questions of law are answered accordingly. Consequently the present appeal without any merit is dismissed. (Sanjay Karol), Judge. September 15, 2010 (PK)