IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1062 of 2003 Decided on : November 25, 2008 Karnail Singh …Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. P.K. Sharma, Additional Advocate General, with Mr. P.M. Negi, Deputy Advocate General, for respondent No.1 to 3. Mr. Bhupinder Gupta, Senior Advocate, with Ms Charu Gupta, for respondents No.4 to 9. Per Surjit Singh, Judge( Oral ) The present writ petition, under Article 226/227 of the constitution of India, in the nature of Public Interest Litigation, has been filed by the petitioner, with the prayer that allotment of land measuring 1838 Sq.m ordered in favour of respondents No.4 to 9 by respondent No.1 and the mutation of the said land carried out by respondents No.2 and 3, in pursuance of the order of the State Government, may be set aside. 2. We may notice the relevant facts. Jagdish Ram, predecessor-in-interest, of respondents No.4 to 9, had been allotted land bearing Khasra Nos.332 and 348, measuring 2730 Sq.m in Mohal Dukki, Tehsil Amb, District Una, sometime in the Whether reporters of the local papers may be allowed to see the judgment? …2… year 1975-76, under The Himachal Pradesh Village Common Lands Vesting and Utilization Scheme, 1975. It appears that Jagdish Ram did not cultivate the said land situate in village Dukki during his life time. After his death, his successors-in- interest, respondents No.4 to 9, also did not cultivate that land. The reason, as per record, was that the land was not cultivable. In the year 1995, the State Government took a decision and conveyed the same to all the Deputy Commissioners, vide Annexure R-4, that where land allotted to landless persons was uncultivable, they could be allotted alternative sites by reviewing their cases sympathetically. It was specifically mentioned in the said letter, Annexure P-4, that District Collectors would consider such cases sympathetically and initiate the action for review of such cases. Since Jagdish Ram, the predecessor-in-interest of respondents No.4 to 9, as also these respondents had not cultivated the aforesaid land, allotted in village Dukki, and the said land was found to be unfit for cultivation, it appears that action was initiated to allot an alternative piece of land to them. A recommendation was made to the Government. The Government, vide letter dated 23rd January, 2003, Annexure P-7, communicated to the Deputy Commissioner, Una, that the Government had taken the decision that in place of land bearing Khasra Nos.332 and 348, situate in Mohal Dukki, land bearing Khasra No.4728/2965/2, measuring 2357 Sq.m, situate in Mohal Amb, be allotted to respondents No.4 to 9. Actually, the area of Khasra No.4728/ 2965/2 was 1838 Sq.m and by the time the aforesaid order, …3… dated 23rd January, 2003, was conveyed to the Deputy Commissioner, its khasra number stood changed to 2357. Mutation was accordingly entered and attested in favour of respondents No.4 to 9. 3. When the Panchayat of Amb came to know about the move/the decision of allotment of Khasra No.4728/2965/2, situate in Mohal Amb to respondents No.4 to 9, they held a meeting and passed resolution, Annexure P-1, on 15th January, 2003, authorizing the present petitioner for filing appeal in this Court for setting aside the allotment of land in Mohal Amb to respondents No.4 to 9. Also, some residents of Mohal Amb submitted a petition to the Deputy Commissioner, copy Annexure P-2. When no action was taken on the petition, present writ petition was filed. 4. We have heard the learned counsel for the parties at length and gone through the relevant record. 5. Submissions made on behalf of the petitioner are manifold. The first submission made by the learned counsel for the petitioner is that preference is required to be given to the residents of the concerned estate, in the matter of allotment of land reserved for the purpose, per Para-5 of The Himachal Pradesh Village Common Lands Vesting and Utilization Scheme, 1975. He has submitted that land was allotted initially to one Hari Ram, resident of Mohal Amb, but then the allotment was cancelled, probably for the reason that the land being Kharkhana was uncultivable. It is also his submission that many residents of Amb Mohal had applied for allotment of this …4… land in exchange of the pieces of land allotted earlier, which was uncultivable. It is also submitted by him that allotment, which had been made in favour of Jagdish Ram, the predecessor-in-interest of respondents No.4 to 9, in the year 1975-76 stood resumed by virtue of the provision of Para-9(e) of the Scheme, as the land had not been cultivated within one year of the allotment. Another submission made by him is that allotment has been made by the State Government, but under the Scheme, referred to above, it is only the Collector, who has the power to make allotment. 6. As regards the first submission, we do not find any material on record suggesting that various residents of the village had applied for allotment of the land, in question, in place of some other pieces of land, which were not fit for cultivation. Hence, the submission is rejected. 7. As regards the second submission also we find no material on record indicating that the allotment of the land, in question, in favour of Hari Ram was cancelled, on account of land having been found unfit for cultivation. There is a report of SDO (Civil), Annexure R-1, indicating that the land surrounding the land, in question, had been made cultivable by other allottees/owners and this land could also be made cultivable by putting in some extra efforts. So, this submission is also rejected. 8. Submission that the land stood resumed to the Government, on account of failure of Jagdish Ram and his successors-in-interest to cultivate it, within one year of …5… allotment, also merits rejection, for the reason that the land was required to be brought under cultivation within one year not of allotment but of taking its possession. Report, Annexure R-1, referred to hereinabove, shows that possession of the land had not been taken over by Jagdish Ram or his successors, respondents No.4 to 9. So, the provision of Para-13(e) is not attracted. Otherwise also, resumption is not automatic on the failure of the allottee to cultivate the land. The provision says that the allotment shall be liable to resumption, in case the land is not cultivated personally within one year. It does not say that in case of failure to cultivate, within one year of allotment, the land shall stand resumed automatically. A conscious decision is required to be taken by the concerned authorities for the resumption of the land, which admittedly had not been taken in this case. 9. Coming to the last submission, we find a great deal of merit in it. Para-5 of the Scheme gives the statutory power to make allotment to the Collector. Para-13(4) of the Scheme provides for preferring appeal to the Commissioner, by any person, by making application to challenge the allotment (made by the Collector). In the present case, the decision to allot the land, in question, to respondents No.4 to 9, in lieu of the land earlier allotted in village Dukki, was taken by the Government and conveyed to the Deputy Commissioner, vide letter dated 23rd January, 2003, Annexure P-7. The State is not a statutory authority to take this kind of decision, because as per the Scheme, which has been formulated under the provisions of …6… The Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, it is only the Collector, who has been given the power to make allotment. So, the allotment is ultra vires of the Scheme. Apart from this, there is another reason for holding the allotment made by the Government to be contrary to law. This decision has defeated the right of appeal available to the persons of the village, under Para-13(4) of the Scheme. Appeal, under Para-13(4), lies to the Commissioner against the decision of the Collector. Here, the decision has been taken by the Government and communicated to the Deputy Commissioner. This has deprived the estate holders of their right to appeal against the allotment. 10. In view of the abovestated position, writ petition is allowed and the decision of the Government, Annexure P-7, as also the order of mutation, by which the aforesaid decision was given effect to, i.e., Annexure P-8, are quashed. We may clarify that the allowing of the writ petition will not operate as a bar if respondents No.4 to 9 make an application to the District Collector concerned for seeking allotment of a piece of land, including the land, in question, in lieu of the allotment of land in village Dukki, made in the year 1975-76, in favour of their predecessor-in-interest Jagdish Ram. Writ petition stands disposed of accordingly. ( R.B. Misra ), J. November 25, 2008(sd) ( Surjit Singh ), J.