IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.:414/2002 Reserved on 23.5.2008 Decided on.20.6.2008 Anita Kumari. …Petitioner. Versus State of H.P. and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Sunil Mohan Goel, Advocate. For the respondents : Mr. Rajinder Dogra, Additional Advocate General. Mr. Rakesh Jaswal, Advocate for the applicant. Rajiv Sharma, J. The brief facts necessary for the disposal of the writ petition are that the petitioner owned and possessed land measuring 0-2-4 bighas comprised in Khasra No.5132 measuring 0-5-0 bighas to the extent of her share i.e. 4/99 in Phati Burwa, Kothi Manali, District Kullu at village Bhahang. The house of the petitioner was completely washed away during heavy rains in the month of September, 1995. The State Government had issued instructions on 25th September, 1995 under the subject “Damage due to cloud burst, excessive rain etc. during kharif- 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 1995”. The State vide these instructions dated 25th September, 1995 had decided that two biswas of land may be given in exchange to those persons whose residential houses have been completely damaged/washed away as a sequel to these excessive rains etc. during Kharif 1995 and could not be re-constructed on the same site. The instructions dated 25th September, 1995 were followed by another instructions dated 13.11.1995. It was decided vide this notification dated 13.11.1995 that such affected persons/families who do not have their own suitable land should be identified and treated as houseless persons. Their cases were to be considered under the terms and conditions mentioned in this letter. Before the instructions dated 25th September, 1995 and 13th November, 1995, the grant of land in exchange was to be regulated under the instructions dated 8.11.1988. The petitioner submitted an application (Annexure P-1) to the Deputy Commissioner, Kullu to grant her some piece of land to enable her to construct a house. The application was forwarded by the Deputy Commissioner to the Tehsildar, Kullu, who in turn forwarded the same to the Naib Tehsildar, Manali. The Naib Tehsildar, Manali informed the Tehsildar, Kullu that no land was available in village Bhahang which could be granted to the petitioner in exchange. The Tehsildar, Kullu also took up the matter with the President, Municipal Council, Kullu, who initially declined to grant ‘No Objection Certificate’ for the grant of land in Phati Dhalpur. Thereafter the matter was considered by the Council in its meeting held on 30.6.1999 and it was resolved to issue ‘No Objection Certificate’ to the petitioner. The case then was forwarded by the Tehsildar, Kullu to the Collector, Kullu on 10.9.1999. The necessary permission was accorded by the Deputy Commissioner, Kullu on 20.11.1999 for the grant of 0-2-0 bighas of land comprised in khasra No. 3 1942/1777/1/1 out of 0-19-0 bighas of land in khasra No. 1942/1777/1 in exchange of land measuring 0-2-0 bighas i.e. 4/99 share of 0-5-0 bighas comprised in khasra No. 5132 situated in Phati Burwa, Kothi Manali, District Kullu. The mutation was attested in favour of the petitioner bearing No. 4075 on 29.12.1999. The grant made in favour of the petitioner was cancelled along with mutation by the Collector (Deputy Commissioner), Kullu. The petitioner submitted representation to the Deputy Commissioner, Kullu. The matter was reconsidered by the Collector, and the land was re-allotted on 4.5.2001 measuring 0-2-0 bighas and the mutation was also attested in favour of the petitioner. The Collector again cancelled the grant made in favour of the petitioner on 12.7.2001 and the mutation was also cancelled. The petitioner has assailed the order dated 12.7.2001 in this petition. She has submitted in her petition that the copy of order dated 12.7.2001 was not communicated to her. Respondents No.1 and 2 have filed reply to the writ petition. It has been admitted by respondents No.1 and 2 in their reply that the petitioner owned and possessed land measuring 0-2-4 bighas comprised khasra No. 5132 measuring 0-5-0 bighas to the extent of her share being 4/9 in Phati Burwa, Kothi Manali, Tehsil Manali, District Kullu. It has also been categorically admitted in para 3 of the reply that the land of the petitioner washed away during September, 1995 due to flood in the river Beas. The stand of the respondents for cancellation of the grant in favour of the petitioner is that it was done in public interest and the authorities had received number of complaints against the allotment being made in favour of the petitioner. There is a specific averment made in the reply that the case of grant of land in exchange in favour of the petitioner was not closed by the office, but was under consideration. The petitioner has filed detailed rejoinder to 4 the reply filed by respondents No.1 and 2. It is specifically denied by the petitioner that the land allotted to the petitioner was part of park. One Mohan Potdar had moved an application bearing CMP No. 2121/2007 for impleadment. Notice was issued in CMP No. 2121/2007 pursuant to which the petitioner as well as respondents No.1 and 2 had filed detailed replies. The sum and substance of the reply filed by the petitioner and respondents No.1 and 2 is that the applicant Mohan Potdar had encroached upon the public land and he was instrumental in getting the allotment of the land in favour of the petitioner cancelled. Respondent No.2 has categorically stated in para 3 of the reply to CMP No. 2121 of 2007 that Mohan Potdar has occupied the provincial Government land in Khasra No. 1942/1777/1 measuring 0-19-0 bighas and as per the report of the Kanungo, he has constructed cemented approach road and steps on this Khasra number and the steps were being taken for his eviction from the land. This Court had also directed respondents No.1 and 2 on 2nd August, 2007 to comply with the order dated 27.4.2007. Respondents No.2 had filed compliance and has placed on record copies of letters dated 24.8.1987 and 7.8.2007 (Annexure R-1 and Annexure R-2). The petitioner filed detailed reply to this affidavit on 5.9.2007. Sh. Mohan Potdar filed rejoinder to the reply of respondent No.2 whereby he has placed on record copy of order dated 20.11.2000 passed by the Collector, Sub Division, Kullu, District Kullu. This Court on 7.3.2008 directed the respondents to file a supplementary affidavit stating therein whether the case of the petitioner could be covered under the scheme or not. The Collector has filed detailed supplementary affidavit taking a specific stand that the land under the scheme could be granted to houseless or landless persons and since the petitioner did not fall under either of these 5 categories, she could not be allotted the land. The endeavour of the Collector was also to bring into the notice of the Court that the husband of the petitioner had also purchased a house in District Kullu. He has also placed on record the copy of the representation made by the public of the area. Mr. Sunil Mohan Goel, Advocate had strenuously argued that the action of the respondents of cancelling the grant made in favour of his client on 12.7.2001 is against the law. He also submitted that the petitioner was earlier granted the land on 20th November, 1999 and thereafter on 4.5.2001. He further contended that his client was not heard at the time of cancellation order dated 12.7.2001 as well as at the time of cancellation of mutation. The learned Additional Advocate General had supported the cancellation of the land vide order dated 12.7.2001 along with Mr. Rakesh Jaswal, Advocate. I have heard the learned counsel for the parties and perused the record carefully. It is admitted case of the parties that the house of the petitioner washed away in rainy season in the month of September, 1995. The case of the petitioner for the allotment of the land was to be considered under instructions issued on 25th September, 1995 and 13th November, 1995. These instructions read thus: 25th September, 1995: “I am directed to say that this year, too, excessive rains/flash floods have caused damage to houses etc. besides other private and public properties. It has been decided by the government that 2 biswas of land may be given in exchange to those person whose residential houses have been completed damaged/washed away as 6 a sequel of these excessive rains etc. during kharif 1995 and can not be re-constructed on the same site. It is, therefore, requested that action in such cases may be taken immediately at your end under intimation to this department.” 13th November, 1995 “I am directed to invite your attention to this department letter No. Rev. D.G (6)-6/92, dated the 25the September, 1995 regarding grant of 2 biswas land in exchange to the families whose residential houses have been completely damaged/washed away as sequel to excessive rains/floods during Kharif, 1995 and cannot be re- constructed on the same sites. The matter has been reviewed and it has been decided by the Government that such affected persons/ families who do not have their own suitable land should be identified and treated as houseless persons. The land for the purpose is to be identified and 2 biswas of land is to be granted to each such affected family who have no suitable land available with them. The land is to be made available to them in accordance with the instructions laid down for allotment of land to the houseless persons under the following schemes namely:- 1. The H.P. Village Common Land (Vesting and Utilization) Scheme, 1975; 2. Utilization of Surplus Area Scheme, 1974; and 3. The H.P. Grant of Nautor Land to Landless Persons and other Eligible Persons Scheme, 1975. Such allottee shall not transfer his rights to any other person within a period of 20 years from the date of taking over of possession after allotment as provided under the above schemes. The sanctioning authorities, as provided in the schemes, shall ensure before allotment of land that: a) Allotment will not be made to those persons who had constructed their houses 7 on the encroached area of Government land and such houses have been washed away during the rains. b) Spot inspection of the land to be allotted will be made in no case the allotment shall be made within 100 meters distance from the road. c) Land to be allotted shall in no case be a prime land or situated in a market place or in a community place. d) Before the allotment is made the orders if any passed for imposing ban on constructions by the Hon’ble High Court or any other lower Courts shall also be kept in view. The ban already imposed on identification of houseless persons/family will be taken as relaxed for the purpose of such houseless persons/families who have been affected adversely as stated above. I am, therefore, to request you to take further necessary action for the identification of houseless persons/families and take immediate steps to allot land to them. The receipt of the communication may be acknowledged.” The case of the petitioner indeed has been considered under these instructions by treating her houseless person. The inquiry was got conducted by the Collector from the field agency and ultimately, ‘No Objection Certificate’ was also issued by the President of the Municipal Council, Kullu for the allotment of the land. The land was granted to the petitioner on 20.11.1999. The mutation was also attested in favour of the petitioner. The same was cancelled without hearing the petitioner. She made a representation and the land was again granted in her favour on 4.5.2001 and the mutation was also attested in her favour. The land 8 allotted to the petitioner was again cancelled on 12.7.2001 and the mutation was also cancelled. The principal stand of the State in the reply filed by it is that the allotment of the land in question has been cancelled on 12.7.2001 in public interest. The respondents have not spelt out any public interest while cancelling the allotment made in favour of the petitioner. The respondents have not placed on record order dated 12.7.2001 with reply to enable the Court to see whether the petitioner was heard before the issuance of order dated 12.7.2001. The other reason for the cancellation of the allotment of land in favour of the petitioner vide order dated 12.7.2001 is that the residents of the area have objected to the allotment of the land in favour of the petitioner. This aspect was also required to be decided by the authorities objectively and not subjectively. The petitioner has placed sufficient material on record that Mohan Potdar was instrumental in getting the allotment of the land in favour of the petitioner cancelled as he himself has encroached upon the Government land. In the latest report of the Kanungo he has been found to be the encroacher. The Deputy Commissioner in his affidavit has stated that the steps were being taken to evict Mohan Potdar from the encroached land on the basis of report dated 22.9.2007. Respondents No.1 and 2 had been directed to place on record under which scheme the case of the petitioner was considered. Surprisingly an impression has been given to the Court that the exchange has been done under the Nautor Scheme and the exchange of land has been banned under the instructions issued in the year 1988. This plea raised by respondents No.1 and 2 is contrary to instructions 25th September, 1995 and 13th November, 1995. The petitioner for all intents and purposes was to be treated as a houseless person and was entitled to the land, which was rightly allotted to her on 20.11.1999 and 4.5.2001. The affidavit filed by the Collector pursuant to 9 order dated 7.3.2008 is contrary to the scheme placed on record. He has wrongly mentioned in his affidavit that the petitioner could not be termed as houseless in view of notification dated 25th September, 1995 and 13th November, 1995. It is evident from the facts enumerated hereinabove that the petitioner had been granted the land twice i.e. on 20.11.1999 and 4.5.2001. The cancellation order was passed by the Deputy Commissioner on 12.7.2001. Mr. Sunil Mohan Goel, Advocate had strenuously argued that before the issuance of order dated 12.7.2001, no notice was issued to his client. There is substance in the submission of Mr. Sunil Mohan Goel. It was necessary for the respondents to afford reasonable opportunity of being heard to the petitioner before the issuance of cancellation order dated 12.7.2001. The order dated 12.7.2001 had civil consequences since the petitioner was being deprived of the land to which she was legally entitled. The respondents have not mentioned in the reply that at any given time the petitioner was issued any show cause before the cancellation order dated 12.7.2001. The Court is of the opinion that the notice was also required to be issued to the petitioner before the cancellation order dated 12.7.2001. The petitioner had acquired vested right on the basis of allotment letter dated 20.11.1999 pursuant to which mutation was attested and subsequent letter dated 4.5.2001 on the basis of which fresh mutation was attested in her favour. This right could not be taken away by the respondents without affording reasonable opportunity of being heard to her. It appears that the authorities had cancelled the allotment on 12.7.2001 only on the basis of some representations made by the residents of the area. I have also gone through the complaints as placed on record by respondents No.1 and 2 to see the veracity of the complainants. The representations have though 10 been signed by the complainants, but their addresses have not been given except that they are residents of Shastri Nagar and other wards of Kullu. The Administrative Authorities have to go strictly in accordance with law. The decision taken after due deliberations and on the basis of the recommendations made by the field agency cannot be modified/ cancelled on the basis of the representations made by certain interested parties living in a particular area. Since the Court has already held that the case of the petitioner was covered under the instructions issued on 25th September, 1995 and 13th November, 1995, the letter dated 7th August, 2007 is also contrary to law. The Court has also gone through Annexure R-1 dated 24th August, 1987. This is prior to the issuance of the two instructions dated 25th September, 1995 and 13th November, 1995 and could not be taken into consideration while considering the case of the petitioner. The learned Additional Advocate General has strenuously argued that since the petitioner’s husband has purchased the land and has constructed the house, the petitioner cannot be allotted land in question. The plea is to be rejected by this Court. The relief is to be granted by the Court on the basis of the situation and circumstances prevailing at the time when the writ petition was filed and when the cause of action had arisen to the petitioner. Consequently the writ petition is allowed. Letter dated 12.7.2001 along with letter dated 7.8.2007 are quashed and set aside. The effect of quashing of these letters dated 12.7.2001 and 7.8.2007 is that the earlier order dated 4.5.2001 will revive and the petitioner will be put in possession of the land. There shall be no order as to costs. 11 CMP No. 2121/2007. Though no formal order for impleadment was passed by this Court, still Mr. Rakesh Jaswal, Advocate appearing on behalf of the applicant, Mohan Potdar has been heard on the merits extensively by the Court. As such the application stands disposed of. June 20, 2008 (Rajiv Sharma ), J. *awasthi*