IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No.67 of 2008. Judgment reserved on: 3.9.2008 Date of decision: 10th September, 2008. Mohinder Sankhyan and others ....Appellants -Versus- State of H.P. and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting? Yes For the Appellants: Mr.Sanjeev Kuthiala, Advocate. For the respondents: Mr.R.M.Bisht, Dy.A.G. for respondents 1&2. Mr.G.D.Verma, Senior Advocate with Mr.T.S. Chauhan, Advocate for respondents 3&4. Deepak Gupta, J. This appeal is directed against the judgment of a learned Single Judge of this Court dated 14.5.2008 whereby the writ petition filed by the appellants has been rejected. This case has a long and chequered history and it would be pertinent to give some detailed facts to appreciate the controversy between the parties. Respondent No.3 Prem Lal filed an application before the Deputy Commissioner, Bilaspur some time in the year 1990. In this application he prayed that he was owner in possession of 92.44 sq.mts. of land comprised in khasra 2 Nos.1273/1, 1277/1, 1276 and 1281 situate in Up-Mohal Kosrian, Tehsil Sadar, District Bilaspur. He alleged that some persons were creating obstructions for a path to his land. According to Prem Lal he wanted to construct a house but since no path is available he prayed that he would surrender his land to the Government subject to the condition that twice the area of land be allotted to him. According to him the land which he was giving up could be used by the State to provide a proper path to all the other right holders. An inquiry was got conducted and it was found that there was no path available to the land of Prem Lal. The Field staff proposed that land measuring 204.75 sq.mts. comprised in khasra No.1327/1 in the same locality be given to Prem Lal in exchange of his land. On the basis of the report of the field staff, the Collector, Bilaspur, granted the exchange of the land in favour of Prem Lal vide his order dated 4.8.1990. Thereafter, Sh.Jamna Dass, predecessor in interest of the present appellants filed a review petition against the order dated 4.8.1990. It was alleged that Prem Lal had manipulated to get the exchange sanctioned in connivance with the revenue authorities. It was also pointed out that Sh.Prem Lal was owner of 92.44 sq.mts. of land which was 80 mts. from the National Highway and had no path leading to it. This land was without any value and without taking into consideration any relevant factors, valuable land situated at only 10 meters from the National Highway measuring 204.75 sq.mts. had been given to Prem Lal in exchange. When these facts were brought to the notice of the Deputy Commissioner he came to the conclusion that the original sanction order was illegal and recalled the earlier order dated 4.8.1990. Thereafter, Prem Lal filed an appeal before the Commissioner, Mandi. The appellate authority held that the Nautor Rules were not applicable since the petitioner was not a farmer and the land of the Government which was sought to be got in exchange was not surrounded by land of the farmers. He came to the 3 conclusion that the exchange had been initially granted in total violation of the Nautor Rules in connivance with the lower field revenue staff. The appellate authority also noted that after the exchange of the land by the Government Sh.Prem Lal who had initially sought the exchange for raising construction of a house had exchanged this land with his wife respondent No.4 Smt.Amro Devi who held land in the adjoining village. After the land which was initially owned by the Government was transferred in the name of wife Smt.Amro Devi, she got a plan approved for construction of a restaurant under the name and style ‘Amar Prem’ on khasra No.1327/1 which was originally the Government land. The appellate authority also came to the conclusion that the exchange of Government land had been banned by the Government vide letter dated 24th August, 1987 and since the ban was in force no exchange was warranted. Prem Lal and Amro Devi filed a Revision Petition before the Financial Commissioner (Appeals) being Revision No.127 of 1994. This petition was rejected by the Financial Commissioner(Appeals) who came to the conclusion that the exchange had been sanctioned at a time when it was not allowed and further that the exchange was in total violation of Rule 27-B of the H.P. Nautor Rules. He confirmed the orders of the Divisional Commissioner, Mandi. He however permitted Prem Lal and Amro Devi to make a fresh application to the Deputy Commissioner, Bilaspur, for exchange of land. Thereafter, Prem Lal and Amro Devi filed another application on 16.5.1997 praying that their land measuring 92.44 sq.mts. be exchanged with Government land measuring 204.75 sq.mts. It would be pertinent to mention that though in the previous proceedings Jamna Dass was a party, neither he nor his legal heirs were impleaded as parties in the application filed by Sh.Prem Lal on 16.5.1997. However, some persons including the present appellant No.5 Satya Devi filed objections to this application. In these objections it was pleaded that the objectors 4 had become owners in possession of the Government land by way of adverse possession. The Collector Bilaspur called for a fresh report from the SDO(civil), Sadar, Bilaspur. On the basis of the report and the other material on record the Collector came to the conclusion that no case was made out for exchange of land and rejected the petition. Prem Lal and Amro Devi filed another Revision Petition before the Financial Commissioner (Appeals) to the Government of Himachal Pradesh. Surprisingly, though appeal was maintainable from the order of the Collector to the Divisional Commission, no appeal was filed and straightway a Revision Petition was filed. This Revision Petition numbered as 266/98 was allowed by the Financial Commissioner(Appeals) on 1.10.2003 mainly on two grounds: (i) that the land which the applicants had surrendered to the Government was in possession of the right holders and had been put to public use and the land originally owned by the Government in the revenue record continued to be shown in the possession and occupation of Prem Lal and his wife and (ii) that the Deputy Commissioner, Bilaspur had initially granted exchange of land in favour of Prem Lal vide order dated 4.8.1990 on the basis of detailed inquiry made by SDO(Civil) Sadar and cancellation of such order would cause injustice to the petitioner. Neither Jamna Dass nor his heirs were party to the petition. Jamna Dass thereafter filed CWP No.8 of 2005 in this Court challenging the said order. The challenge was on various grounds. The learned Single Judge has rejected this writ petition basically on two grounds; firstly that the writ petitioners were not entitled to any benefit since they themselves had claimed a piratical right of adverse possession over the land and therefore could not abrogate to themselves the role of protectors of public property; and secondly that the Financial Commissioner rightly held that the detailed inquiry report of the Sub Divisional Collector which formed the basis of the grant dated 4.8.1990 has not been considered. According to the 5 learned Single Judge this was the basis for the exchange and its non-consideration vitiated the order of the Deputy Commissioner. On going through the entire record, we may summarize the factual position as follows: (i) That the land of the applicant Prem Lal was virtually of no value since there was no path leading to this land and it was surrounded by the land of private parties; (ii) Prem Lal approached the authorities for exchange of land. However, no provision was pointed out under which such land could be exchanged. (iii) Prem Lal in connivance with the lower revenue field staff obtained report in his favour; (iv) Without any valuation being done, 204.75 sq.mts. of Government land abutting the National Highway and having much greater value was ordered to be exchanged in favour of Prem Lal against his 92.44 sq.mts. of worthless land. This order was passed on 4th August, 1990. It is important to note that the order dated 4.8.1990 was recalled by the Deputy Commissioner himself. Appeal filed by Prem Lal and his wife was dismissed. Revision was also dismissed. The order passed by the Financial Commissioner in the earlier Revision Petition dated 28.10.1996 was not challenged by any party and attained finality. Thereafter, Prem Lal filed a fresh application. In our view both the Financial Commissioner and the learned single Judge gravely erred in coming to the conclusion that the order dated 4.8.1990 or the report on the basis of which such order had been made required to be taken into 6 consideration while deciding the fresh application of the applicants for exchange of land. As pointed out above, the Deputy Commissioner as well as the Divisional Commissioner and the Financial Commissioner in the earlier round of litigation had come to the conclusion that there was no rule under which such exchange could have been granted. Rule 27-B of the Nautor Rules was not at all applicable to this case. Rule 27-B only applies to the Government land measuring less than two bighas which is surrounded by the land of the farmers i.e. agricultural land. Even at the stage of argument, Sh.G.D.Vema, learned senior counsel appearing for Prem Lal could not point out to us any provision of law under which the exchange had been initially sanctioned. The order dated 4.8.1990 including the report on which it was based was held to be illegal in the earlier proceedings which had attained finality. Therefore, the Financial Commissioner and the learned Single Judge gravely erred in holding that this report and order should have been taken into consideration by the Collector. We are also of the considered view that Sh.Prem Lal has manipulated this exchange in total violation of the Rules. He in the second round of litigation purposely did not implead Jamna Dass or his legal heirs as parties though they had been contesting the earlier litigation with him. Valuable Government land has been grabbed by Sh.Prem Lal and his wife on the basis of such orders. We are also of the considered view that the learned Single Judge was not justified in holding that the petitioners had no right to prosecute the writ petition. Right from the year 1991 Jamna Dass had been contesting the right of Prem Lal to get the land. At no stage of the proceedings was any challenge laid to his locus standi to challenge the exchange made in favour of Prem Lal. It was on the Review Petition filed by Jamna Dass that the earlier order dated 4.8.1990 was set-aside. He was therefore not an interloper in the case. The learned Single Judge also erred in 7 holding that all the petitioners before him had claimed the piratical right of adverse possession on the government land. Only one of the petitioner Smt.Satya Devi was a signatory to the objections and other petitioners had not signed the objections. Be that as it may, once a gross illegality comes to the notice of this Court where valuable Government land is being transferred to the name of an individual without any legal sanction or authority and in total violation of the Rules it is also the duty of the Court to look into the matter. As pointed out above, Sh.G.D.Verma has failed to point out any provision of law under which such exchange could have been granted by the Government. He has only pleaded that under General Law such exchange could have been granted. If General Law was to apply, then the contract entered into by the Government should have been in accordance with Article 299 of the Constitution of India. We are also of the view that the learned Single Judge as well as the Financial Commissioner could not have ignored the findings of the Divisional Commissioner which had been upheld by the Financial Commissioner in the earlier proceedings which findings had attained finality and had not been challenged by either party. These findings were clear-cut that Prem Lal and his wife had obtained the exchange for commercial purpose after misleading the State and in connivance with the Revenue staff. In view of the above discussion we are of the considered view that the LPA has to be allowed. The same is allowed and the order of the learned Single Judge dated 14.5.2008 in CWP No.8 of 2005 as well as the order of the Financial Commissioner dated 1.10.2003 in Revision No.266 of 1998 are set-aside. The State is directed to ensure that the possession of the land measuring 204.75 sq.mts. comprised in Khasra No. 1327/1 is taken over from Sh.Prem Lal and Smt.Amro Devi within a period of two months from today. In case Sh.Prem Lal and Smt. Amro Devi do not voluntarily handover the possession of this land to the State 8 within the aforesaid period the State can in addition to taking legal process for taking possession of the land also initiate proceedings for recovering use and occupation charges of the land from Sh.Prem Lal and Amro Devi. As far as the land of Sh.Prem Lal in khasra Nos.1273/1, 1277/1, 1276 and 1281 is concerned the State shall restore the possession of the same to Sh.Prem Lal on his vacating the land in khasra No.1327/1. In case the State feels that the land of Sh.Prem Lal cannot be restored to him due to subsequent developments then the State shall within a period of 3 months from today initiate proceedings for acquisition of the said land under the provisions of the Land Acquisition Act. The L.P.A. is allowed in the aforesaid terms, with costs assessed at Rs.10,000/-. The costs be deposited by respondent No. 3 and 4 with the Advocates’ Welfare Fund (Trustee Committee) of the Bar Council of H.P. within three months from today. (Deepak Gupta), Judge September 10, 2008 ( V.K. Ahuja ) PV Judge