IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 270 of 1998. Judgment reserved on : 11.8.2009 Date of decision : 17.8.2009. Tega …Appellant. Versus Deputy Commissioner & others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. Balwant Singh, Advocate vice Mr. K.D.Sood, Advocate. For the Respondents : Mr. A.K.Bansal, Addl. A.G. for respondents No.1 to 3. Mr. Arjun Lall, Advocate for respondent No.8. Kuldip Singh, Judge This appeal is directed against the judgment, decree dated 27.5.1998 passed by District Judge, Chamba in Civil Appeal No. 40 of 1997 affirming judgment, decree dated 15.5.1997 passed by the Senior Sub Judge, Chamba in Civil Suit No. 494 of 1993. 2. The facts in brief are that the appellant had filed suit for declaration that he is owner in possession of the land comprised in Khasra No. 1247/ 1241, khata-khatauni No. 32/32 measuring 4-12 bighas situated in Mohal Arwain Tehsil Salooni, District Chamba. 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes 2 The order dated 8.12.1992 passed by the Deputy Commissioner, Chamba in file No. 11/2-VIII/91 titled Chiknu and others versus Tega is null and void. The appellant has also prayed for permanent prohibitory injunction against respondents No. 1 to 3 from taking possession and causing any interference on the suit land. 3. The case of the appellant is that he had spent more than Rs. 15,000/- for re-claiming the suit land and raising orchard. He has also constructed a building on the suit land. The mutation No.109 was attested in his name on 9.2.1983 and at that time nobody raised any objection. On 9.8.1988 Chiknu and others had filed an appeal before the Collector, Chamba for annulling the record of rights which was dismissed vide order dated 1.6.1990. Thereafter, the aforesaid persons again filed revision before the Deputy Commissioner-cum-Collector, Chamba which was dismissed on 30.1.1992. Those persons again filed an application before the respondent No.2 which was allowed on 8.12.1992. The order dated 8.12.1992 is wrong, illegal, null and void. The respondents are trying to take vacant possession of the suit land and respondent No.3 on 11.12.1992 asked the appellant to vacate the suit land. In these circumstances, the appellant has filed the suit. 4. The suit was contested by respondents No.1 to 3 who filed written statement and took preliminary objections of jurisdiction, cause of action, locus-standie, validity of notice under Section 80 C.P.C., maintainability, valuation and non-joinder of necessary parties. On merits, it has been pleaded that the suit land was granted to appellant as Nautor in the year 1982 which was cancelled by the Deputy Commissioner, Chamba on 8.12.1992. The 3 attestation of mutation No. 109 on 9.2.1983 has been admitted. It has been denied that respondent No.2 has decided the revision petition of private respondents. The grant of appellant was cancelled as he was not found eligible under the Himachal Pradesh Grant of Nautor Land to Landless and Other Eligible Persons Scheme, 1975. The appellant has concealed the fact that he was already having 6-2-0 bighas land in village Garohan Pargna Diur, Tehsil Salooni, District Chamba. The appellant obtained Nautor land fraudulently by concealing the facts. 5. The private respondents also filed separate written statement in which more or less the same pleas have been taken, which have been taken by respondents No.1 to 3. The appellant filed replication to the written statement of respondents No. 1 to 3 and denied the case of respondents No.1 to 3 while re-asserting his case pleaded in the plaint. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land ? …OPP. 2. Whether the order dated 8.12.1992 of the defendant No.1 is wrong, illegal and not binding on the plaintiff? ...OPP. 3. Whether the plaintiff is entitled to the relief of permanent injunction? ... .OPP 4. Whether the civil court has no jurisdiction to try the suit? ..OPD. 5. Whether the plaintiff had served a valid notice under Section 80 CPC on defendant No.1? ....OPP. 6. Whether the suit is not maintainable in the present form? ....OPD. 4 7. Whether the suit is correctly valued for the purpose of court fee and jurisdiction? …..OPP. 8. Whether the suit is bad for non-joinder? …OPD. 9. Relief. The trial Court decided issues No.1 to 4 , 6 to 8 in negative and issue No.5 in affirmative and dismissed the suit on 15.5.1997. In appeal, the District Judge on 27.5.1998 affirmed the judgment, decree dated 15.5.1997 of the trial Court, hence second appeal by appellant which has been admitted on the following substantial questions of law:- 1. Whether the Deputy Commissioner, Chamba had no jurisdiction to cancel the grant which had been validly made after disclosing all the facts by the appellant? 2. Whether the Deputy Commissioner was entitled to review the order and reject the grant when twice earlier the applications moved for the purpose had been rejected by the Deputy Commissioner? 3. Whether the plaintiff was eligible person for the grant of Nautor under the H.P.Grant of Nautor to landless persons and other eligible persons Schemed 1975, when it was established that the alleged gift by Zalam in favour of the appellant was neither accepted nor acted upon? 4. Whether in the facts and circumstances of the case there was any mis-representation or fraud practice by the appellant in obtaining the Nautor and the grant cancelled at this belated stage after appellant had constructed a costly house by spending his entire earnings? 5. Whether the grant could be resumed without payment of compensation by the Deputy Commissioner and his order is illegal, void and without jurisdiction in the facts and circumstances of the case? 5 7. Heard and perused the record. Mr. Balwant Singh, Advocate, learned counsel appearing on behalf of the appellant has submitted that respondent No.2 earlier dismissed the objections on 30.1.1992 vide Ex.PW-1/J but vide order dated 8.12.1992 Ex. PW-1/L allowed the objections. He has submitted that once the objections were dismissed on 30.1.1992, the respondent No.2 had no jurisdiction to allow the objections on 8.12.1992. The Deputy Commissioner, Chamba had no jurisdiction to cancel the grant. The Deputy Commissioner has erred in reviewing the order and cancelling the grant when twice earlier the applications moved for this purpose were rejected by the Deputy Commissioner. The land gifted in favour of the appellant by Zalam was neither accepted nor acted upon. The appellant neither misrepresented nor played fraud in obtaining the Nautor. The grant was cancelled at belated stage. The grant could not have been resumed without the payment of compensation. The learned counsel appearing for the respondents have supported the impugned judgment, decree. 8. The substantial questions of law No.1 to 5 can be disposed of collectively, therefore, all of them are being taken up together. It has been pleaded in the plaint that the Collector dismissed the appeal with respect to grant of land on 1.6.1990. One set of objections against grant were dismissed by the Deputy Commissioner on 30.1.1992 but the Deputy Commissioner vide order dated 8.12.1992 set-aside the grant. In this context, it is the case of the appellant that the Deputy Commissioner-cum-Collector rejected the objections with respect to grant twice, but on third 6 occasion he allowed the objections and cancelled the grant, thus according to the appellant, the cancellation of grant by the Deputy Commissioner on 8.12.1992 is wrong and illegal. The perusal of order dated 1.6.1990 Ex.PW-1/H would show that the Collector dismissed the appeal against mutation No.109 dated 9.2.1983. The scope of inquiry in the appeal was attestation of mutation which Collector upheld vide order dated 1.6.1990 Ex.PW-1/H. Therefore, appellant cannot take help from Ex.PW-1/H. 9. It appears some objections were filed against the grant which were considered by Deputy Commissioner on 30.1.1992 in file No.8/2-VIII and in absence of objectors the case was dismissed in default by the Deputy Commissioner vide order dated 30.1.1992 Ex.PW-1/J. The Deputy Commissioner did not decide anything on merits while dismissing the objections in default on 30.1.1992. The perusal of order dated 8.12.1992 Ex.PW-1/L of Deputy Commissioner indicates that some objections were filed against the grant for which file No.11/2-VIII/91 was prepared. The Deputy Commissioner vide order dated 8.12.1992 Ex.PW-1/L in file No.11/2- VIII/91 accepted the objections and cancelled the grant. At this stage, it is relevant to note that the order Ex.PW-1/J was passed in file No.8/2-VIII while order dated 8.12.1992 Ex.PW-1/L was passed in file No.11/2-VIII/91. It means the files were different and, therefore, it cannot be said that the Deputy Commissioner had no jurisdiction to pass the order dated 8.12.1992 Ex.PW-1/L once he had passed the order dated 30.1.1992 Ex.PW-1/J. The order dated 30.1.1992 Ex.PW-1/J is not on merits and, therefore, it cannot be 7 said that the Deputy Commissioner while passing the order dated 30.1.1992 upheld the validity of grant in favour of appellant. In these circumstances, the Deputy Commissioner had jurisdiction to pass the order dated 8.12.1992 Ex.PW-1/L for canceling the grant. 10. Para 9 A of the scheme authorizes the Deputy Commissioner to cancel the grant in a given situation. The Deputy Commissioner in order dated 8.12.1992 Ex.PW-1/L has recorded a specific finding that appellant was not entitled or eligible for allotment inasmuch as at the time of allotment, the appellant was not eligible person to be granted the Nautor land. The allotment was made in the presence of suppression of facts regarding the land holding of the appellant in other revenue estate. The suppression of material facts is nothing but fraud. The appellant has not denied his holding indirectly in other revenue estate when the land was allotted to him under the Scheme, but his plea is that the other land never came to him inasmuch as gift made by Zalam to him was never acted upon. The perusal of jamabandi 1982-83 Ex.DD indicates appellant is owner in possession of land measuring 6-12 bighas, out of which land measuring 6-13 bighas is under cultivation. This falsifies the stand of appellant that he was not holding any other land when gift was made to him. There is no worth-believing evidence on record to accept the contention of the appellant that at the time of grant he was not holding any other land. The two Courts below have recorded a finding of fact against the appellant and upheld the order dated 8.12.1992 Ex.PW-1/L of Deputy Commissioner cancelling the grant. 8 11. It has been submitted on behalf of the appellant that cancellation of grant is belated and much after the allotment. The cancellation is barred by delay and laches. The para 9 A of the Scheme gives jurisdiction to Deputy Commissioner to cancel the grant at any time. In any case fraud vitiates everything and the time will start running when fraud came to the notice of aggrieved party. It is not the case of the appellant that the cancellation order is belated even after fraud came to the notice of objectors. Therefore, the grievance of the appellant that belated action has been taken for cancellation of the grant has no merit. The Deputy Commissioner in the order dated 8.12.1992 has ordered return of Nazrana etc. paid by appellant. Therefore, it cannot be said that land was taken back without payment of any amount to appellant. The grant was cancelled in view of concealment of facts by appellant, therefore, the appellant was not entitled to any compensation. 12. The Courts below have properly appreciated the material on record. The learned counsel for the appellant has failed to point out any perversity in the impugned judgment, decree or misconstruction of material on record. The substantial questions of law No. 1 to 5 are decided against the appellant. 13. No other point was urged. 14 The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), August 17, 2009. Judge. (GR)