IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 262 of 1998. Date of decision: April 6, 2009. State of Himachal Pradesh ….. Appellant. Vs. Arjun Singh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Addl. Advocate General. For the Respondent : Mr. Diwan Singh, Advocate vice Mr. Vinay Kuthiala, Advocate. Kuldip Singh, Judge (Oral). The State of Himachal Pradesh was defendant in case No. 297-1 of 1992/88, which was decreed on 30.6.1992 in favour of respondent, who was plaintiff in that suit. The learned District Judge, Bilaspur dismissed Civil Appeal No. 85 of 1992 on 3.12.1997, hence the present second appeal by the State. 2. The facts, in brief, are that respondent filed a suit for declaration that he is owner in possession of land comprised in khata Khatauni No. 43/55, khasra No. 679/666, measuring 3 -16 bighas, village Bhagatpur, Pargana Bacchretu, Tehsil Ghumarwin, District Bilaspur vide jamabandi 1985-86. The respondent in the suit had assailed the order dated 18.2.1988 of Financial Commissioner being without jurisdiction. The case of the respondent is that he was Whether the reporters of the local papers may be allowed to see the Judgment? …2… granted nautor land vide file No. 165/1965 by Sub Divisional Officer (C), Ghumarwin after following due procedure on 20.6.1973. The respondent had deposited Nazrana and price of the trees, thereafter Patta was issued by the Collector, Bilaspur to the respondent. The possession was delivered to respondent and mutation NO. 349 was also attested in his favour. The Financial Commissioner (Revenue and Appeals) on 10.2.1988 without notice to the respondent rejected the grant made in favour of the respondent. 3. The appellant contested the suit and took preliminary objections of maintainability, locus-standi, cause of action, want of notice under Section 80 CPC and jurisdiction. On merits, it was contested that nautor of respondent was rightly cancelled. The respondent had no right over the suit land. The Financial Commissioner had the jurisdiction to cancel the grant. The appellant has taken the stand that many trees valuing to the tune of Rs.10618.28P were found on the allotted land. The possession of respondent on the allotted land after cancellation of the allotment is unlawful. The respondent filed replication and reiterated his stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP. 2. Whether the plaintiff is entitled for the relief of permanent injunction as alleged? OPP. 3. Whether the plaintiff is entitled for the relief of possession in the alternative? OPP. 4. Whether the plaintiff has no locus standi to maintain the present suit? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the plaintiff has no cause of action? OPD. …3… 7. Whether the suit is bad for want of due notice under section 80 C.P.C.? OPD. 8. Whether the civil court has no jurisdiction to hear and decide the present suit? OPD. 9. Whether the Nautor granted to the plaintiff has been cancelled in due course of law and the possession of the plaintiff over the suit land is unlawful? If so its effect? OPD. 10. Relief. Issues No. 1 and 2 were decided in favour of the respondent, issues No. 3 to 9 were answered in negative and the suit of the respondent was decreed by learned Sub Judge Ist Class, Bilaspur on 30.6.1992. The appeal filed by the appellant in the lower appellate court met the same fate, hence second appeal by the State, which has been admitted on the following substantial questions of law:- 1. Whether the grant made under H.P. Nautor Rules and subject to rule for Revision thereof. 2. Whether the words not withstanding as contained in the Rule 27-B have the power to debar even the revisional and writ powers of the higher courts as provided under law. 3. Whether the illegal order is passed by any authority in flagrant violations of Rules and if same undone by the higher authorities, whether exercising of that powers to rectify an illegal act would amount go a ultrawire act or not. 4. Whether more mis-reading of oral as well as documentary evidence on record itself account to substantial question of law. 4. I have heard Mr. A.K. Bansal, learned Additional Advocate General on behalf of the appellant and Mr. Diwan Singh, Advocate appearing on behalf of the respondent and have also gone through the record. It has been submitted on behalf of the appellant that two courts below have erred in decreeing the suit of the …4… respondent. The material on record has been misconstrued and misinterpreted, there were trees on the allotted land prior to allotment and the allotment of the suit land was made wrongly in favour of respondent under H.P. Grant of Nautor Rules, 1968 (for short, the Rules). The Financial Commissioner had rightly cancelled the allotment of suit land in favour of the respondent under Rule 30. The learned counsel for the respondent has submitted that the procedure prescribed under Rule 30 was not followed before cancellation of the allotment. The respondent was condemned unheard. The two courts below have concurrently held that no notice before cancellation of allotment was given to the respondent. The learned counsel appearing on behalf of the respondent has supported the impugned judgement. 5. The substantial questions of law on which the appeal has been admitted for hearing are not happily worded but the substance of aforesaid substantial questions of law has been taken into consideration instead of form while deciding the appeal. Substantial questions of law No. 1 and 4. 6. It is not in dispute that when the allotment was made to respondent then the rules were applicable. It has also not been denied that allotment of the suit land could have been cancelled under Rule 30. The learned Additional Advocate General has relied Ex. PD in support of his contention that the allotment of the suit land in favour of respondent was rightly cancelled. I have gone through Ex. PD. In short, as per Ex. PD the case of one Jodha Singh was under consideration before the Financial Commissioner (Revenue …5… and Appeals) and while considering that case, the Financial Commissioner had proceeded to invoke Rule 30 and cancelled the allotment of suit land, which was made in favour of respondent on 20.6.1973 by Sub Divisional Officer ( C), Ghumarwin in nautor File No. 165/1965 and revoked the grant. The relevant part of Rule 30 of the Rules, is reproduced below:- “Rule 30. Revisions. (i) The Financial Commissioner may at any time call for the record of any case pending before or disposed of by any Officer subordinate to him. (ii) -------- (iii) -------- (iv) 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 orders as he thinks fit. Provided that he shall not under this rule pass any order reversing or modifying any proceedings of orders of the subordinate Revenue Officer without giving the parties concerned an opportunity of being heard.” There is no dispute that Financial Commissioner has the power to call for the record of a pending or decided case by any officer subordinate to him. However, proviso to Rule 30 provides that he shall not under this rule pass any order reversing or modifying any proceedings of orders of the subordinate Revenue Officer without giving the parties concerned an opportunity of being heard. On behalf of the appellant nothing has been pointed out from the record that before invoking Rule 30 any notice was given by Financial Commissioner to the respondent. …6… 7. In the grounds of appeal in the lower appellate court, it has not been specifically stated that in fact notice was given to respondent by the Financial Commissioner when the proceedings under Rule 30 of the Rules were initiated against him, similarly, in the grounds of appeal in this court also, it has not been specifically stated that notice was given to respondent by Financial Commissioner before proceeding against him under Rule 30 of the Rules. In these circumstances, the order dated 10.2.1988 Ex. PD is not sustainable and no fault can be found with the impugned judgement and decree. The substantial question of law No. 1 is decided to this effect that grant under the rules is subject to revision under the rules, but while exercising the revisional power, no order shall be reversed or modified in any proceedings of orders of the subordinate revenue officer by the Financial Commissioner without giving the parties concerned an opportunity of being heard. There is no misreading of oral and documentary evidence by the two courts below nor such misreading of evidence has been pointed out specifically. Therefore, substantial questions of law No. 1 and 4 are decided in favour of the respondent. Substantial questions of law No. 2 and 3. 8. The substantial questions of law No. 2 and 3 do not emerge from the case set up by the appellant in the courts below, more particularly, when on facts it has been found that before revising order under Rule 30 to the detriment of the respondent, the Financial Commissioner did not give any notice to the respondent and therefore, erred in invoking Rule 30 for cancellation of grant of the suit …7… land, which was made to respondent under the Rules. The substantial questions of law No. 2 and 3 are therefore, disposed of accordingly. 9. No other point was urged. 10. The result of the above discussion, the appeal fails and is accordingly dismissed, no costs. April 6, 2009 ( Kuldip Singh ), (Hem) Judge.