IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1179/2006 Reserved on.2.11.2006 Decided on.7.11.2007 Amar Singh. …Petitioner. Versus State of H.P. and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the petitioner : Mr. R.K. Sharma, Advocate. For the respondents Mr. M.S. Chandel, Advocate General with Mr. M.A. Khan and Ms. Meenakashi Sharma, Deputy Advocate Generals for respondents No.1 & 2. Mr. Manoj Thakur, Advocate for respondent No.3. Rajiv Sharma, J. The brief facts necessary for the adjudication of the present petition are that the petitioner was granted land measuring 6 kanals 6 marlas comprising khasra No. 209/2 and Khasra No.210/5 situated in Tikka and Mauza Dhasoli, Tehsil Jawali, District Kangra, H.P. in the month of May, 1976 under the Himachal Pradesh Village Common Land (Vesting & Utilization) Scheme, 1975 (hereinafter referred to as the scheme for brevity sake). Respondent No.3 filed petition against the allotment made in favour of the petitioner on 23.11.1998. The Collector (Additional District Magistrate), Kangra at Dharamshala on 9.4.2001 cancelled the Patta made in favour of the petitioner. The copy of the order was sent to the Collector, Sub-Division, Jawali with the direction to inspect the revenue 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 record of landed property of Amar Singh in Mohal Dhasoli Jhikli and Chamoli existing at the time of allotment. The Collector, Sub Division, Jawali directed that khasra No.774/1, 810, 812 and 813 plots-4 measuring 0-14-75 HMs situated in Tikka Dhasoli Jhikli Mauza Dhasoli, Tehsil Jawali be allotted to the petitioner and the remaining khasra No.744/2, 775, 808 and 811 plots 4 measuring 0-09-90 HMs situated in Tikka Dhasoli, Tehsil Jawali was directed to be vested with the Government vide order dated 14.2.2006. Mr. R.K. Sharma, Advocate had strenuously argued that the petitioner has been allotted land measuring 6 kanals 6 marlas vide Annexure P-1 and the same could not be cancelled on the basis of the objections lodged by respondent No.3 after a period of 23 years. He had also argued that the earlier order passed by the Collector whereby the land measuring 6 kanals 6 marlas has been allotted to his client could be revised only within a reasonable period which according to him is three years. He had further contended that Collector( Additional District Magistrate), Kangra at Dharamshala and Collector, Sub Division, Jawali have wrongly relied upon the reports of Tehsildar dated 29.8.1999 and 29.6.2000 while reducing the area of the petitioner. He had also contended that respondents No.1 and 2 have wrongly considered the land which his client inherited from his mother on the basis of mutation dated 30.7.1978. The learned Advocate General and Mr. Manoj Thakur, Advocate appearing on behalf of respondent No.3 have supported the orders dated 9.4.2001 and 14.2.2006. The learned Advocate General had strenuously argued that since the petitioner had concealed the material facts at the time of allotment of land, order on revision can be passed even after a period of 23 years. 3 Mr. Manoj Thakur, Advocate had additionally argued that the petitioner has started encroaching upon his land being the neighbourer in the year 1998. I have heard the learned counsel for the parties and perused the record. It will be apt to take into consideration the salient provisions of the Himachal Pradesh Village Common Land (Vesting & Utilization) Scheme, 1975 under which the land has been allotted to the petitioner in the year 1976 before considering the rival submissions made by the learned Advocates. Para 4 of the scheme deals with enquiry, preparation of statement of land available for allotment by the Tehsil Revenue Officer. The procedure for allotment of land from the allotable pool has been laid down in para 5. Para 7 provides that a certificate in form ‘II’ shall be given by the Collector. Para 8 provides that after making the allotment, the Collector shall also pass an order for delivery of possession of land to the allottee. Para 9 lays down that allotment will be subject to the following terms and conditions reproduced below: i.The allottee shall be liable to pay all government dues, including land revenue rates and cesses from the date he takes possession of the land; ii. the allottee shall be liable to pay for the land an amount as prescribed in clause (b) of sub-section (1) of section 8 of the Act; iii. the allottee shall become full owner of the land allotted to him when all payments due in respect of such land have been made either in lump sum or on payment of first installment of such dues, as the case may be; iv. the allottee shall not transfer his rights in the land allotted to him to any person within a period of 20 years from the date of taking over the possession after allotment, and in the event of violation of the provisions, the land granted to him 4 shall be liable to be resumed by the State Govt. and no further allotment of land shall be made to him thereafter; Provided that the allottee may transfer the land by way of mortgage without possession in favour of a primary Agricultural Cooperative credit society, a Bank as defined in the Himachal Pradesh Agricultural credit operations and Miscellaneous provisions (Banks) Act, 1972 (Act No.7 of 1973) for the purpose of raising loans for development of such land, purchase of bullocks seed and fertilizer, etc. for bringing the land under cultivation. v. The allotment shall be liable to resumption if the land is not cultivated personally within a year of taking over of the possession by the allottee; vi. the land allotted under the scheme shall not be subject to fragmentation by way of partition, transfer or by any other mean; and vii. the Revenue Officer shall record the conditions laid down in sub-paras (d), (e) and (f) above in the mutation orders to be passed by him. His order shall further be recorded in the remarks column of the Jamabandi in which the mutation pertaining to the land is incorporated. Para 11 provides that if an allottee makes any default in the payment of the amount due from any or infringes any of the conditions, he shall render himself liable for cancellation of the allotment. Para 13 provides that any person aggrieved by an order of Collector or any other authority competent to make such order, may within thirty days from the date of such order or such longer period as the Commissioner may allow for reasons to be recorded in writing prefer an appeal in writing to the Commissioner. Para 13 of the Scheme in its entirety reads thus: “13 (1) Any person, aggrieved by an order of Collector or any other authority competent to make such order, may within thirty days from the date of such order or such longer period as the Commissioner may allow for reasons to be recorded in writing prefer an appeal in writing to the Commissioner. 5 Explanation- In computing the period of thirty days, the time taken in obtaining the copy of the order appealed against shall be excluded. (2) On such appeal being preferred, the Commissioner may order stay of further proceedings in the matter pending decision on the appeal. (3) The Commissioner shall decide the appeal after giving the parties an opportunity of being heard and if necessary, after sending further record of the case from the Collector and after making such inquiry as he thinks fit either personally or through the Collector. (4) If at any time, it comes to the notice of the Commissioner either through an application made by any person or otherwise, that the allotment of any land under this Scheme was made to a person who was not entitled or eligible for such allotment or the allotment was wrong on any other grounds, he may call for the record of the case and after making such enquiries as he thinks proper either in person or through a Revenue Officer subordinate to him and after giving an opportunity to the parties concerned, he may cancel the grant of land and make such other orders in connection therewith as he deems necessary in the circumstances of the case.” It is in this background that the case of the petitioner is required to be looked into. The petitioner has been allotted land in the year 1975. He had paid the Nazrana and the mutation was also entered in his name. The possession was also delivered to him. The land allotted to the petitioner in the year 1975 for the first time was objected to by respondent No.3 on 23.11.1998. The Collector (Additional District Magistrate), Kangra at Dharamshala cancelled the allotment made in favour of the petitioner on 9.4.2001. It appears that the Collector (Additional District Magistrate) had called for the report from the Tehsildar, which was submitted by him on 28.9.1989. Similarly, the Naib Tehsildar, Nurpur had submitted the report dated 29.6.2000. The petitioner had inherited the land from his 6 mother along with his brothers vide mutation No. 294 dated 30.7.1978. The Collector, Sub Division, Jawali had also called for the report from the Tehsil Revenue Officer, Jawali which was furnished by him on 16.6.2005. The land has been allotted to the petitioner in the year 1976. It is evident from para 9 of the Scheme that the allottee shall become full owner of land allotted to him when all payments due in respect of such land have been made either in lump sum or on payment of first installment of such dues, as the case may be. The petitioner had already paid all the dues. He was also put in possession of the land, meaning thereby he had become absolute owner of the land allotted to him in the year 1976. It is further evident from sub-para (d) of para 9 that the allottee cannot transfer the land within a period of 20 years from the date of taking over the possession after the allotment. This also buttresses the submission of Mr. R.K. Sharma, Advocate that the petitioner could dispose of the land allotted to him in the year 1976 as well. The objections have been lodged by respondent No.3 on 23rd November, 1998 though the land in question has been allotted to the petitioner in the year 1976. The Court now has to consider the true import of sub-para (4) of para 13 of the scheme more particularly expression ‘at any time’ mentioned therein. In the present case the land stood allotted to the petitioner in the year 1976, but the same has been cancelled by the Collector (Additional District Magistrate), Kangra at Dharamshala on 9.4.2001. The Collector, Sub Division, Jawali has taken another five years to pass the appropriate order on 14.2.2006. The effective orders for reducing the land of the petitioner have been passed on 14.2.2006 i.e. after a period of 30 years. The Hon’ble Supreme Court in State of Punjab and others versus Bhatinda District Cooperative Milk P. Union Limited, 2007 (12) Scale 7 135 has held that the revisional jurisdiction should ordinarily be exercised within a period of three years having regard to the purport in terms of the Act and in any event, the same should not exceed the period of five years while interpreting section 21 of the Punjab General Sales Tax Act, 1948. Their Lordships have held as under: “A bare reading of section 21 of the Act would reveal that although no period of limitation has been prescribed therefore, the same would not mean that the suo moto power can be exercised at any time. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in sub-section (6) of section 11 of the Act is five years.” The upshot of the above discussion is that: (i) the power under sub para (4) of para 13 of the Scheme can be exercised only within reasonable period i.e. three years. In the present case, this power has been exercised after a period of twenty seven years i.e. 9.4.2001; (ii) the petitioner had become the absolute owner of the land as per sub para (c) of para 9 of the Scheme; and 8 (iii) the petitioner had made the land cultivable by planting mangos trees immediately after the possession was handed over to him. Consequently the writ petition is allowed. Annexure P-3 and P-4 dated 9.4.2001 and 14.2.2006 respectively are quashed and set aside. The earlier allotment made in favour of the petitioner in the month of May, 1976 is restored. There shall be no order as to costs. ( Rajiv Sharma), Judge November 7, 2007. *Awasthi*