IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 720 of 2006. Judgment reserved on 26.7.2011. Date of decision: 08.08.2011 ___________________________________________________ Sh. Devi Dayal (now deceased) through his LRs Sh.Ravinder Singh Negi & others. …. Petitioners. Versus State of HP & others. ….. Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No. For the petitioners: Mr. B.C. Verma, Advocate. For the respondents: Mr. Vivek Singh Thakur, Addl. AG with Mr. Rajesh Mandhotra, Dy. AG for respondents 1 to 4. Mr. Neeraj Gupta, Advocate for respondent Nos.5 & 6. _________________________________________________ Deepak Gupta, J. 1. The petitioner-Devi Dayal (now deceased), by means of this petition challenged the order dated 10.10.1995 passed by the Additional District Magistrate- cum- Sub Divisional Officer (Civil) Pooh, District Kinnaur _______________________ Whether the Reporters of Local Papers may be allowed to see the judgment Yes. 2 granting nautor land to the private respondent-Shri Shamsher Jang (since deceased and now represented by his legal representatives). He also challenged the order of the Divisional Commissioner, Shimla and Financial Commissioner (Appeal), HP whereby the petitions filed by the petitioner for setting aside the grant of nautor land in favour of private respondent were set aside. 2. It would be pertinent to mention that the present petitioner had filed an application on 8th May, 1992 before the Settlement Collector for correction of the revenue entries regarding Khasra Nos. 626/1 and 627/1 respectively. The Settlement Collector allowed the application of the petitioner-Devi Dayal and ordered that the possession of the petitioner be recorded over the said land. Mutation in this regard was also effected on 30.6.1993. Private respondent-Shamsher Jang challenged this order before the Commissioner who dismissed the same vide order dated 30.3.1995. Thereafter the private respondent filed revision petition before the Financial Commissioner (Appeal) which was allowed on 20.10.1997 and the matter was again remanded to the Settlement Collector for fresh inquiry. 3 3. It appears that in the meanwhile, the private respondent had applied for grant of nautor of this very land and the Addl. District Magistrate, Pooh granted the same to him (Shamsher Jang) vide his order dated 10.10.1995. The petitioner challenged the aforesaid grant by filing an appeal before the Divisional Commissioner, Shimla on 19.7.2002. This appeal was dismissed as being barred by limitation. The Financial Commissioner (Appeals) also upheld this order and held that the appeal was barred by limitation. Hence, the present petition. 4. According to the petitioner, he had no occasion to know about the grant of nautor, since no notice was ever issued to the estate right-holders. According to him, he came to know about the grant of nautor in favour of Shamsher Jang much later and then he filed the appeal immediately. It is alleged that the private respondent obtained the grant of nautor by fraud and, therefore, no limitation would apply. 5. At the outset, it would be pertinent to mention that Shamsher Jang was an employee of State Government and was working as a pharmacist. He first applied for grant of nautor in the year 1974. He applied for grant of 3 bighas and 11 biswas of land. This land was 4 granted to him. He again applied for grant of nautor on 12.7.1983 wherein he prayed that 17 biswas of nautor land be granted to him for construction of cow-shed. This land was granted to him vide order dated 26.4.1985. 6. The private respondent again applied for grant of nautor for the third time in the year 1995. Report of Tehsildar was called for. The Tehsildar submitted that Shamsher Jang was not eligible for grant of land, as he was owner in possession of more than 20 bighas of cultivable land. The private respondent claimed that some land measuring 0-03-21 hectares had been eroded beyond repair and thereafter Tehsildar, Moorang was again directed to visit the spot. Then the Tehsildar reported that the claimant is entitled to grant of land. Thereafter the ‘Patta’ was granted to him and sanctioned in his favour on 10.10.1995, without even issuing notice to any of the estate right-holders. Land measuring 0-08- 94 hectares was granted in his favour. 7. It would be pertinent to mention that in the application for grant of nautor filed by Shamsher Jang, he did not mention that he had previously been granted nautor on two occasions, despite the fact that there was a specific column in the application for grant of nautor 5 land which required the applicant to give detailed particulars of the nautor land granted to him previously. Against all the sub-headings, the applicant only put a “X” (cross). As far as the column relating to income is concerned, the petitioner stated that his income from all sources was Rs. 20,000/-. As stated above, Shamsher Jang was a pharmacist and this Court had directed the State to file the salary certificate of the private respondent which shows that the total emoluments of the private respondent in 1995 when he was granted the nautor was about Rs. 6,000/- per month. The total emoluments were between Rs. 65,000/- to 75,000/- per year. Shamsher Jang in his nautor application also did not mention that the land which he had sought by way of nautor was also the subject matter of a dispute between him and Devi Dayal in settlement proceedings, despite the fact that he himself had challenged the order of the Settlement Collector passed in favour of Devi Dayal. 8. A perusal of the nautor file wherein the last grant was made in favour of Shamsher Jang clearly shows that initially the authorities had come to the conclusion that Shamsher Jang was not even found eligible for grant of nautor since his holding of cultivable 6 land was more than the prescribed limit. Thereafter, Shamsher Jang set-up a new case that some land of his had been eroded and therefore nautor be granted to him. On perusal of the file, I find that the entire proceedings were conducted at the back of the petitioner who had claimed possession of this very land before the Settlement Authorities. Rule 14 of the HP Nautor Rule clearly lays down that when an application for nautor is filed, a copy of the same should be sent to the Gram Panchayat and proclamation has to be issued, so that any person who has any objection to the grant of nautor can raise an objection within one month. In the present case, a perusal of the file shows that this procedure was not followed. Shamsher Jang at that time was working as a pharmacist. He withheld this fact. He also withheld the fact that he had been granted nautor on two occasions earlier. It would also be pertinent to mention that while calculating 20 bighas of cultivable land, the 17 biswas granted for construction of cow-shed has been excluded. This could not be done because this land had been obtained by way of nautor. 9. No person can claim nautor again and again by claiming that the land previously allotted to him was 7 not fit for horticulture. Any person who applies for grant of nautor must come with true facts. Shamsher Jang not only withheld the fact that earlier on two occasions he had been granted nautor, but also misstated facts by saying that his annual income was Rs. 20,000/- whereas even his salary was more than 65,000/- and in case his horticulture income was added, the total income would be much more. Nautor Rules are meant to grant land to deserving people and not to those who tell lies and are suitably employed. Even the holding of Shri Shamsher Jang was more than 20 bighas, but he somehow managed to convince the authorities that his land had been damaged and the cultivable land was less than 20 bighas and when calculating this, even the land previously granted as nautor was not taken into consideration. He also conveniently did not mention that the land which he had applied for by way of grant of nautor was the subject matter of dispute between him and the present petitioner in settlement proceedings. His actions smack of fraud. It is a well settled principle of law that fraud vitiates everything. When a person obtains a grant by fraudulent means, by misrepresentation of facts, by withholding material facts and by telling lies with 8 regard to his income, he cannot claim that the challenge to his grant is belated. He has no right to defeat a genuine claim on the technical ground of limitation. 10. Even otherwise, I am convinced that the petitioner had no knowledge of the grant of nautor since the record reveals that the same was obtained in a hush- hush manner without even issuing a notice to anybody. 11. In view of the aforesaid discussion, I have no hesitation in allowing the writ petition and setting aside the orders of the Divisional Commissioner and Financial Commissioner (Appeal) dated 3.6.2004 and 18.4.2006 and canceling the grant dated 10.10.1995 made in favour of Shamsher Jang. In case he had been alive, this Court would have imposed heavy costs on him. However, since he is dead and now his estate is represented by his legal representatives, they are directed to hand over the possession of the land measuring 0-08-94 hectares to the State of Himachal Pradesh on or before 30th November, 2011, failing which the State shall also be entitled to recover the use and occupation charges from them on commercial basis. No costs. (Deepak Gupta) Judge August 8, 2011(Krn Guleria) 9