IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 2/1999 alongwith RSA No. 3 of 1999 Reserved on:1.9.2010 Decided on: 15.9. 2010 ________________________________________________ 1. RSA No. 2/1999 Lekh Ram and others. …Appellants. Versus State of H.P. and others. … Respondents. 2. RSA No. 3/1999 Lekh Ram and others. …Appellants. Versus State of H.P. and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes (in both the appeals) For the appellants : Mr. Ashwani K. Sharma, Advocate. For the Respondents :Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General for respondents No. 1 and 2. None for respondents No. 3 and 4. ________________________________________________________ Justice Rajiv Sharma, Judge . Since common questions of law and facts are involved in both these Regular Second Appeals, the same were heard together and are being disposed of by a common judgment. 2. Both these Regular Second Appeals have been directed against the judgment and decree dated 12.11.1998 1 Whether reporters of the local papers may be allowed to see the judgment? . Yes passed by the learned District Judge, Bilaspur in Civil Appeal No.54 of 1990 and 64 of 1990. 3. Material facts necessary for the adjudication of these Regular Second Appeals are that the predecessor-in- interest of the appellants-plaintiffs, namely, Sh. Durga filed a suit in the court of Sub Judge 1st Class, Ghumarwin on 20.2.1988 for declaration to the effect that he was owner in possession of the suit land comprised in Khasra No. 1546/848 measuring 1-3 bighas situated in village Kot, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur and the orders passed by the Deputy Commissioner and Financial Commissioner were without jurisdiction and also prayed for permanent prohibitory injunction restraining the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) from interfering in his possession. He has alleged that the suit land was granted to him as Nautor by the Sub Divisional Officer (Civil), Ghumarwin vide order dated 8.9.1972. He has alleged that defendants Jagdish Chand and Sita Ram had filed a revision petition before the Deputy Commissioner, Bilaspur against the grant of Nautor and the Deputy Commissioner reviewed the order of the Sub Divisional Officer (Civil) and cancelled the Nautor. The plaintiff preferred an appeal before the Divisional Commissioner. He reversed the order of the Deputy Commissioner and confirmed the order of the Sub Divisional Officer (Civil) dated 8.9.1972. Defendant No.2, Jagdish Chand filed an appeal before the Financial Commissioner. The Financial Commissioner partly cancelled the allotment on 4.6.1982. The plaintiff filed a review petition before the Financial Commissioner. The same was dismissed by him on 15.1.1988. The suit was contested by the defendants by filing separate written statements. The defendant-State has denied the contents of plaint except that Nautor was granted in favour of the plaintiff. However, the same was cancelled by the Financial Commissioner. According to the reply filed by the State, Financial Commissioner was competent to modify and cancel the grant of Nautor. It is further alleged that the Patta was issued and the plaintiff was bound by the terms and conditions of the Patta. He has constructed a small cowshed over the suit land adjoining to the school with malafide intention. The State has supported the orders passed by the Financial Commissioner. Defendant No.3 has filed separate written statement. He has alleged that the plaintiff had obtained the grant of Nautor by concealing the material facts and the possession was never delivered to him. Defendant No.4 Sita Ram has also filed separate written statement. On merits, he has denied the contents of plaint and has stated that the plaintiff was not in possession of the suit property as the same was being utilized by the villagers and the Middle School, Kot. It was further stated in the written statement that the Nautor was cancelled by the Deputy Commissioner after visiting the spot on 27.3.1980 and the order was valid. The land was required for play ground of the school and there was no other suitable land available. The plaintiff has filed the replications to the written statements filed by the defendants. The trial court framed issues on 19.12.1989. The trial court decreed the suit preferred by the predecessor-in-interest of the plaintiffs-appellants (hereinafter referred to as the plaintiffs for convenience sake) on 29.5.1990 and declared that the order of the Deputy Commissioner and Financial Commissioner dated 4.6.1982 and 15.1.1988, respectively were wrong and illegal. The plaintiff was declared owner in possession over the suit land and the defendants were restrained permanently from interfering with the possession of the plaintiff. Defendants, i.e. Sita Ram and State, preferred separate appeals bearing Civil Appeal No. 54 of 1990 and 64 of 1990 against the judgment and decree dated 12.11.1998 of the learned trial court on 13.7.1990 and 3.11.1990, respectively. Learned District Judge allowed both the appeals and the judgment and decree of the learned trial court dated 29.5.1990 was set aside. Hence, the present Regular Second Appeals by the plaintiff. 4. It will be apt at this stage to take note that Durga, original plaintiff, died during the pendency of these appeals and his legal representatives were brought on record vide order dated 6.7.2004. These Regular Second Appeals were admitted on the same substantial questions of law, which read thus: 1. “Whether the learned Deputy Commissioner is legally competent and entitled to review the order regarding grant of Nautor passed by SDO (C)-cum-Revenue Assistant, under the provisions of H.P. Nautor Land Rules, 1968? 2. 2. Whether the learned Deputy Commissioner is competent to exercise revisional jurisdiction under the provisions of H.P. Nautor Land Rules, 1968 against the order of grant of land in Nautor passed by SDO (C)-cum-Revenue Assistant?” 5. Mr. Ashwani Sharma has strenuously argued that the Deputy Commissioner was not competent to review the order of grant of Nautor passed by the Sub Divisional Officer (Civil)- cum-Revenue Assistant under the Himachal Pradesh Nautor Rules, 1968. 6. Mr. P.M. Negi, learned Deputy Advocate General has supported the judgments and decrees passed by the learned first appellate court. 7. Plaintiff-Durga died during the pendency of the appeal and his legal representatives have been brought on record vide order 6.7.2004. 8. I have heard the learned counsel for the parties and perused the record carefully. 9. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 10. Plaintiff has been granted nautor land comprised in Khasra No. 1546/848 measuring 1-3 bighas by the Sub Divisional Officer (Civil), Ghumarwin on 8.9.1972. He was put in possession of the same after executing the Patta. However, Jagdish Chand and Sita Ram assailed the allotment made in favour of the plaintiff before the Deputy Commissioner, Bilaspur. The Deputy Commissioner, Bilaspur vide order dated 27.3.1980 Ex.P-3 cancelled the allotment made in favour of the plaintiff. Plaintiff Durga (since deceased) preferred an appeal before the Divisional Commissioner. The Divisional Commissioner vide order dated 15.10.1981 accepted the appeal and set aside the order of the Deputy Commissioner dated 27.3.1980. Sh. Sita Ram filed a revision petition under section 30 of the Himachal Pradesh Nautor Land Rules, 1968 against the order dated 15.10.1981. The learned Financial Commissioner ordered that an area equivalent to volley ball field adjacent to land of Sant Ram will be excluded from the land of the plaintiff and in view of this, the revision was partly allowed to that extent on 4.6.1982. Plaintiff preferred a review petition against the order dated 4.6.1982 before the learned Financial Commissioner. Since the review petition was filed after a gap of 4-5 years, the same being barred by limitation, was rejected by the Financial Commissioner on 15.1.1988. 11. Now, in order to appreciate the submission made by Mr. Ashwani Sharma, it will be appropriate to refer to salient features of the Himachal Pradesh Nautor Rules, 1968. The eligibility for Nautor land is provided under rule 7 and procedure for filing application for Nautor land is provided under rule 13. The procedure for dealing with the application for grant of Nautor land is provided under rule 14. Rule 16 empowers the Sub Divisional Officer (Civil) of the Sub Division to grant nautor land upto the maximum limits prescribed in rule 6. The procedure after sanction of nautor land is provided under rule 18. The grantee is bound by the conditions of the Patta as per rule 19. It will be apt at this stage to reproduce rule 28, which reads thus: “28. An appeal from the order of the S.D.O. (C) under rule 16 shall lie to the Deputy Commissioner within 60 days from the date of the order. A further appeal from the appellate order of the Deputy Commissioner shall lie to the Commissioner within 60 days from the date of the order. In the case of original grant made by the Deputy Commissioner, an appeal from his order shall lie to the Commissioner within 60 days from the date of order and a second appeal to the Financial Commissioner within 90 days from the date of order. Provided that no second appeal shall lie when the original order is confirmed on first appeal.” 12. A bare perusal of rule 28 makes it abundantly clear that the appeal against the order of Sub Divisional Officer (Civil) lies to the Deputy Commissioner within 60 days from the date of order of the Sub Divisional Officer (Civil). Further appeal against the order of the Deputy Commissioner lies to the Commissioner within 60 days from the date of order. However, in case the original grant is made by the Deputy Commissioner, an appeal from his order lies to the Commissioner within 60 days from the date of order and second appeal to the Financial Commissioner within 90 days from the date of order. It is further stipulated that no appeal shall lie when the original order is confirmed on first appeal. 13. In the instant case, the land in question was allotted to the petitioner by the Sub Divisional Officer on 8.9.1972. Sh. Jagdish Chand and Sita Ram had filed petition before the Deputy Commissioner Bilaspur. In fact, even if word ‘revision’ was mentioned in the head note of the petition, however, in the substance it was an appeal against the order of the Sub Divisional Officer (Civil) and the Deputy Commissioner has accepted the same as an appeal and has passed the order on 27.3.1980. It is also mentioned in the order passed by the learned Commissioner that Jagdish Chand and Sita Ram have filed appeals before the Deputy Commissioner, Bilaspur. In fact, only an appeal could be filed against the order passed by the Sub Divisional Officer (Civil) and Jagdish Chand and Sita Ram have filed the appeals before the Deputy Commissioner. It is not the nomenclature/form, but the substance which matters. The Divisional Commissioner has set aside the orders passed by the Deputy Commissioner on 15.10.1981. The Financial Commissioner vide Ex.P-5 has partially allowed the revision while exercising the powers under rule 30 by reducing the area of land. Plaintiff has preferred a review after a period of 4 ½ years and the same has rightly been rejected vide Ex.P-6. The Financial Commissioner has modified the order on 4.6.1982. However, the same has been assailed by the plaintiff on 20.2.1988. The same was required to be filed within a period of one year as per Article 100 of the Limitation Act. It has come in the judgment of the learned District Judge, Bilaspur that he had tried to reconcile the matter amongst the parties. The learned District Judge has visited the spot after getting necessary permission from this Court. He noticed that there was one double storeyed house covered with verandah having slate roof and the plaintiff had completed the construction of one new house where the family members were residing and the construction of the other pucca house was in progress. He has further noticed that there was sufficient vacant space of Government land adjacent to the school and in front of the newly constructed house of the plaintiff. The plaintiff had consented on the spot that he will handover the vacant possession to the school. He had also given undertaking that he will remove the structure existing in front of the newly constructed house towards the school and Halqua Patwari was directed to prepare necessary tatima. After the tatima was prepared, the plaintiff refused to reconcile the matter. As per the grant made in favour of the plaintiff, the land was to be used for agriculture purposes; however, it is apparent that the predecessor-in-interest of the plaintiffs has used the land primarily for construction of houses. This was not permissible under law. As per sub-rule (c) of rule 29, the application for review of an order is required to be filed within 90 days from the passing of the order and unless the applicant satisfies the Financial Commissioner or the Commissioner or the Deputy Commissioner or the Sub Divisional Officer (Civil) as the case may be, that he had sufficient cause for not making the application within that period. In the present case the application preferred by the plaintiff for review was time barred and the delay was not explained. 14. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in both the Regular Second Appeals and the same are dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 15.9. 2010. *awasthi*