IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Writ Petition No.240 of 2002. Judgment Reserved on:26.08.2008. Date of decision: 04.11.2008. Dr.Karan J.Kumar …Petitioner Versus State of H.P. & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioner: Mr.Paresh Sharma, Advocate. For Respondents 1 to 3: Ms.Ruma Kaushik, Additional Advocate General. For Respondent No.4: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. Dev Darshan Sud,J. This writ petition has been preferred by the petitioner against the order passed by the Financial Commissioner, Annexure-PK, dated 7th June, 2001, rejecting the revision preferred by the petitioner herein under Section 30 of the H.P. Nautor Rules, 1968, against the order passed by the Commissioner dated 23.11.1995 cancelling the grant in favour of the petitioner of land measuring 2 Bighas 6 Biswas. 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 The dates of the orders as noted above are misleading as the genesis of the entire case goes back to the year 1967. The Collector, Solan, District Solan, vide order dated 3.4.1967 sanctioned nautor land in favour of the petitioner herein of land measuring 2 Bighas and 6 Biswas, comprised in Khasra No.75 in village Mando Matkando, for the purposes of installation of Petrol Pump. Pursuant to the order, Patta executed between the petitioner and the Union of India through the Collector, Mahasu, District Kasumpti. The petitioner pleads that after execution of the Patta, the possession of the land was delivered to him and recorded in mutation No.487. He spent about Rs.20,000 for leveling the ground etc. and removing stones etc. making it suitable for the purposes of installation of a Petrol Pump. The Indian Oil Corporation applied to the Collector, Mahasu for issuance of `No Objection Certificate’ required for its installation and while considering this application, the Collector reviewed his order dated 3.4.1967 and referred the case to the Commissioner, Himachal Pradesh seeking permission to review the order granting land to the petitioner, which permission was granted. On 17th April, 1968, the Collector set aside the grant of nautor land. The petitioner thereafter preferred an appeal before the Commissioner on 24th May, 1968 (Annexure-PB). During the course of hearing of this appeal, the Commissioner 3 observed that without going into the merits of the appeal counsel for the appellant (petitioner herein) urged that the petitioner herein had filed an application that after the grant having been made in favour of the petitioner herein, he had invested more than Rs.10,000/- for improving and leveling the land and had acquired a small piece of land adjoining this land, for setting up a Restaurant etc. Under these circumstances, a prayer was made that without going into the other grounds raised etc., the land may be sold to the petitioner at the market rate. The order specifically records the consent of both the State as also the petitioner herein: “The representative of the PWD as well as his counsel have no objection to the acceptance of this offer and the disputed place of land being sold on market price to the appellant for the purposes set out by him in his application.” The appeal was dismissed, but the Commissioner ordered that the land be sold to the petitioner at the market rate. The operative part of the order reads:- “Under the circumstances, the appeal before me rejected, as it has not been pressed. But I see no objection to the sale of the land of Shri Karan J.Kumar, on market price, as applied for by him, subject to the condition that in the 4 event of the sale of the land to him, he will set up a petrol pump alongwith a first rate restaurant within one year from the date of sanction in his favour. Further action in the matter may be taken accordingly” Aggrieved by this order, the Deputy Commissioner filed a revision petition before the Financial Commissioner, Himachal Pradesh, which was registered as Revenue Revision No.69-68, titled: Union of India vs. J.Karan Kumar, the revision was accepted and the direction for sale was set aside. The petitioner herein, preferred CWP No.149 of 1968 in the High Court of Delhi, (Himachal Bench). This writ petition was disposed of on 16th December, 1970 (Annexure-PE) with the following directions:- “It is agreed between the parties that the entire dispute may once again go back to the Commissioner (Revenue), Himachal Pradesh, who may re-hear the parties on all aspects and record the appropriate decision. That being the agreement this writ petition is allowed quashing the order of the Financial Commissioner mentioned above and directing that the parties may appear before the Commissioner (Revenue), Himachal Pradesh, on the 31st of December, 1970, who will fix a date for hearing and disposal of the dispute 5 in accordance with law. There will be no order as to costs.” Here starts tale of woe of the petitioner. Nothing seems to have happened for 24 long years between 16th December, 1970 till notice Annexure-PF was issued by the Deputy Commissioner, Solan, on 4th March, 1994, calling upon the petitioner to show cause as to why he had not utilized the land for the purpose for which it had been granted to him by the Deputy Commissioner, Mahasu and the allotment cancelled. The notice is reproduced verbatim as it forms the basis for what follows subsequently:- “WHEREAS Shri Karan J Kumar s/o Sh.Amar Nath r/o village Mando Matkando was granted Nautor land comprised in Khasra No.75, measuring 2-6 bighas situated in village Mando Matkando Tehsil Solan (Now Tehsil Kasauli) by the Deputy Commissioner, Mahasu Distt. Kasumpti vide his order dated 3.4.1967. The mutation No.482 village Mando Matkando was attested by the Assistant Collector, IInd Grade Solan on 6.9.1967. The land was granted to you for the installation of a Petrol Pump. AND WHEREAS it has been brought to my notice that you have not utilized the land for the purpose for which it was granted to you by the Deputy Commissioner, Mahasu Distt. As per conditions of allotment you were required to utilize the said land 6 within a period of two years only for the purpose for which it was granted but you have failed to fulfill the conditions of allotment. It has been reported that now a hotel has been constructed on this land, in violation of the conditions of allotment. Therefore the allotment made by the Deputy Commissioner; Mahasu is liable to cancelled. NOW THEREFORE, I Shrikant Baldi, IAS, Deputy Commissioner, Solan District Solan H.P. successor to Deputy Commissioner erstwhile Mahasu District Kasumpti H.P. do hereby call upon to show cause as to why that the land comprised in Kh.No.75 measuring 2-6 bighas situated in village Mando Matkando Hadbast number 107 Tehsil Solan (Now Tehsil Kasauli by the Deputy Commissioner Mahasu District vide his order dated 3.4.1967 on case file No.36/66 may not be cancelled as you are not complying with the conditions of allotment. Your reply to this show cause should reach this court within 15 days from the issue of this notice. You are further directed to appear in this court in person on 23.3.1994 at Solan. Given under my signature and seal of the court today the 4th day of March, 1994.” The petitioner replied vide Annexure-PG that though the land had been allotted for installing a 7 petrol pump and restaurant, the Authorities did not issue a “No Objection Certificate” which was mandatorily required by the Indian Oil Corporation before installation. Without such certificate it was not possible to install/establish the petrol pump. The fault, if any, according to the petitioner herein, was that of the State and could not be attributed to the petitioner. He also stated that the land was allotted both for running a petrol pump and a restaurant for which purpose, Commissioner of Tourism, Himachal Pradesh, had recommended the case of the petitioner. The recommendations dated 15th December, 1988, were placed on the record with the reply. The petitioner specifically set up a case that on the basis of these recommendations, the Himachal Pradesh Financial Corporation sanctioned a loan to the petitioner and the necessary clearance from the Executive Engineer was issued for operating this restaurant/tourist facility. No order was passed by the Deputy Commissioner on the show cause notice Annexure-PF to which the petitioner had submitted his reply. The case of the petitioner was thereafter taken up by the Commissioner, Shimla Division as Nautor Appeal No.147 of 1994. The order incorporates that CWP No.149 of 1968 was filed before the Hon’ble High Court of Delhi, Circuit Bench at Shimla, it reads:- “In C.W.P. No.149 of 1968 the Hon’ble High Court of Delhi, Himachal Bench, 8 Shimla had directed vide orders dated 16.12.1970, the Commissioner (Revenue), Himachal Pradesh to re-hear the parties on all aspects and record appropriate decision. The Hon’ble High Court order of J.P.s. Safeer is as under:- “This petition is directed against an order passed by the Financial Commissioner Himachal Pradesh, on the 19th of August, 1968. After hearing the counsel for the parties I am of the view that it would be inappropriate to make any observation regarding the merits of the dispute. Mr.C.L. Kapila has referred to the Himachal Pradesh Nautor Rules, 1965. There is no provision in them authorizing the Deputy Commissioner to make any order to the effect that his superior, the Commissioner, has erroneously decided the matter and that the Financial Commissioner may go into the same. There is no sanction conferring legality on the order passed by the Deputy Commissioner, Mahasu District, on the 4th of July, 1968. That order being illegal and without jurisdiction, the order of the Financial Commissioner passed 9 in consequence thereof deserves to be struck down. It is agreed between the parties that the entire dispute may once again go back to the Commissioner (Revenue) Himachal Pradesh, who may re- hear the parties on all aspects and record the appropriate decision. That being the agreement this writ petition is allowed quashing the order of the Financial Commissioner mentioned above and directing that the parties may appear before the Commissioner (Revenue) Himachal Pradesh, on the 31st of December, 1970, who will fix a date for hearing and disposed of the dispute in accordance with law. There will be no order as to costs.” Thereafter it continues that an application was moved by the petitioner for fixing of the hearing of the case on 25.8.1971:- “2. In this regard an application was moved by Karan J.Kumar for fixing of hearing on 25.8.1971 whereupon it was directed that the case filed be put up. Available papers indicate that the original nautor file was not located and unfortunately the case was never 10 put up to the Commissioner (Revenue), Himachal Pradesh in terms of the above mentioned High Court order. Subsequently, the available papers show that the case was never pursued either by the State or by Karan J. Kumar in this Court”. The order continues:- “In 1994 the Deputy Commissioner, Solan on the basis of a report of Sub Divisional Officer, Solan, initiated action for cancellation of allotment of nautor land granted to Karan J.Kumar as the conditions of allotment had not been met. The Deputy Commissioner, Solan issued a notice dated 4.3.1994 to Karan J.Kumar in which it was stated that the land comprised in Khasra No.75, measuring 2-6 bighas situated in Village Mando Matkando, Tehsil Solan (Now Tehsil Kasauli) had been sanctioned on 3.4.1967 in favour of Karan J.Kumar for the purposes of installing a petrol pump. The land was also mutated vide mutation No.482 by the Assistant Collector II Grade, Solan on 6.9.1967. As no petrol station had been set up within a period of two years as stipulated and instead a hotel/restaurant had been constructed, therefore, Karan J.Kumar was directed to show cause why the order dated 3.4.1967 on case file No.36/66 be not cancelled for violating the conditions of allotment.” 11 “3. Against the order of the Financial Commissioner, Himachal Pradesh, Karan J. Kumar filed a Writ Petition in the Hon’ble High Court and orders were passed dated 16.12.1970 directing the Commissioner (Revenue), Himachal Pradesh to rehear the parties. Regrettably, the papers were never put up to the Commissioner (Revenue), Himachal Pradesh and to-date the original nautor file which was sent to D.C. Mahasu vide Financial Commissioner, Himachal Pradesh Endst.No.533-68/COC, Dated 28th August, 1968 has not been located. IN this regard orders have been passed for further Administrative action. 4. The record of the case was subsequently re-constructed and arguments of the parties were heard.” The order then proceeds that the matter was considered in detail. One of the grounds urged by the petitioner herein was that he had raised a loan from the Himachal Pradesh Financial Corporation and had suffered action for default in repayment as the land had not been allotted to the petitioner as promised. The petition was dismissed by the Commissioner on the ground that according to Rule 7 of the H.P. Nautor Rules, 1965, the petitioner herein is a resident of Chandigarh and was therefore, not eligible. He then proceeds to hold that the petitioner herein had concealed material facts and was therefore not entitled 12 to any relief. Against this order the petitioner preferred a revision under Section 30 of H.P. Nautor Land Rule, 1968 before the Financial Commissioner (Appeals), with detailed grounds set out therein, alongwith written arguments (Annexures-PI and PJ). The Financial Commissioner, after noticing the facts, holds in the order (Annexure-PK) that it was the primary duty of the petitioner to pursue his case before the Deputy Commissioner, Shimla as he had suffered an adverse order on the question of eligibility. The submission of the petitioner was that Rule 7 of the Nautor Rules, 1968 cannot be made applicable to him as this grant was under the Rules of 1954. This contention was rejected and the revision was dismissed on 7.6.2001 (Annexure- PK). Learned counsel appearing for the petitioner has urged on a number of grounds before me challeinging the legality of the notice issued by the Deputy Commissioner and the order passed by the Financial Commissioner. Learned counsel appearing for respondent No.4 who claims to have got this land on lease from the State of Himachal Pradesh has also intervened in the matter urging that no relief can be granted to the petitioner herein as the rights of the respondents have crystallized by virtue of the grant having been made in his favour. I have heard learned counsel for the parties and have gone through the record of the case. 13 To say the least that the case has not been dealt with in accordance with law in its true perspective would be an under statement. How this litigation has been kept alive for a period of more than 38 years despite an order having been passed by this Court still remains unclear. I have extracted some portions from the orders passed by the Commissioner to show that after the remand of the case by a consent order it was the primary duty of the respondents to have taken up the case as they are the custodians of the record and more especially when the petitioner had moved an application on 25.8.1971, as noticed by the Commissioner, praying for hearing of the appeal. However, during this intervening period nothing stopped the State from making a grant in favour of respondent No.4 by way of a lease. The callous manner in which the order of this Court has been disregarded, the record allowed to be destroyed and the case proceeded with on some purported reconstruction of the record cannot but be deprecated. Administrative adjudication pursuant to statutory powers vested in an authority, cannot grant a right to such an authority to ride roughshod over the rights of an individual. I cannot help expressing my consternation in the manner in which the orders passed by this Court in the writ petition (Annexure-PE) have been ignored and the record allowed to be destroyed. The petitioner is being blamed for this lapse when it was the primary duty of 14 the statutory adjudicating body which is the statutory custodian of the records. The petitioner cannot be blamed, but it is the callous attitude of the respondents resulting in the present imbroglio. The order passed by this Court in writ proceedings has been flouted with impunity and the order rendered incapable of implementation by creating third party rights. The entire effort of the respondents is to apportion the blame on the petitioner which the facts on record do not permit. If the notice for cancellation of the lease on the grounds as stated in Annexure-PG was issued by the Deputy Commissioner, Solan, surely he was required to consider the reply filed by the petitioner. There is no record to show that the Deputy Commissioner had applied his mind to the facts of the case and the reply as filed. However, it is the order of the Commissioner Annexure-PH which incorporates the fact regarding the show cause for cancellation and combines it together with the consideration of the case by them as ordered by this Court in CWP No.149 of 1968. The petitioner filed a revision petition before the Financial Commissioner (Appeals), Himachal Pradesh, against the order of the Commissioner raising a number of grounds regarding the legality of the order passed by the Commissioner. The petitioner specifically sets out a ground that he kept on visiting the office of the Commissioner repeatedly but he was never told about the fate of his case. In the 15 meanwhile, according to the petitioner, although the Indian Oil Corporation had been waiting for more than five years for a No Objection Certificate to be granted by the respondent-State, no action was taken and the Indian Oil Corporation decided to install the petrol pump at a different site. The Financial Commissioner by the impugned order, has dismissed the revision filed by the petitioner herein. He also holds that it was primarily for the petitioner to pursue his case before the Commissioner as he has suffered an adverse order passed by Deputy Commissioner, Mahasu, who cancelled his nautor grant. This finding of the Financial Commissioner is against the law and facts on record. It was not the fault of the petitioner who had requested for a hearing as far back as in 1971 as noticed by the Commissioner, but for reasons best known to the revenue authorities, neither the case was put up nor the file was traceable. The manner in which the revision has been dealt with leaves much to be desired. The order cannot be considered as a speaking order nor can it be said that the contentions raised by the petitioner herein before the Deputy Commissioner, Commissioner and the Financial Commissioner have been dealt with. The order passed shows a pre-determination of mind possibly for the reasons that during this period a lease has been granted in favour of respondent No.4 who has intervened in the matter. When a request was made by the petitioner for outright sale of the 16 land which request was accepted by the Commissioner in the previous proceedings, the State resisted the plea on the ground of legality urging that there was no such power vested in the Commissioner to have issued such directions. If that be so, then why was the land leased to respondent No.4? Nobody has applied his mind to the facts of the case. Why would the offer of lease be not made to the petitioner herein? These important questions required determination. Respondent No.4 had even filed a suit in this Court seeking a decree for declaration that his rights in the land may not be interfered with by the petitioner. This suit was later-on withdrawn. I have stopped short of pronouncing on the rights of the parties as I find that there has been a total non- application of mind both by the Commissioner as also the Financial Commissioner. The proceedings further show that the statutory authorities have acted with a predetermined mind to hold the petitioner guilty of gross delay and to protect the action taken by the State during the intervening period of 38 years, whereas it was the duty of the State to have obeyed the command of this Court issued as back as 1968. The Deputy Commissioner had issued a show cause notice Annexure-PD calling upon the petitioner to explain as to why the land has not been utilized for the purpose for which it was allotted. The petitioner had filed a detailed reply. Without due consideration the reply, 17 the order of this Court passed in 1968 was made the basis for the proceedings before the Commissioner who also purportedly considered the reply submitted by the petitioner herein to the show cause notice issued by the Deputy Commissioner. There is total non- application of mind both by the Commissioner and the Financial Commissioner in passing the orders, Annexures PH and PK, which are the subject matter of the challenge before this Court. What is regrettable is that even the original record has been lost. In the facts and circumstances of the case, the order passed by the Financial Commissioner, Annexure-PK, is quashed and set aside. A direction is issued that the matter shall be considered afresh by him. He shall give his findings on each and every contentions urged and raised by the petitioner herein and the observations made in this judgment. I find from the order of the Commissioner that some orders have been issued on the administrative side to ascertain as to how the original nautor file came to be lost and why the proceedings could not be taken up. Such an inquiry shall also be completed within a period of four months from the date of this order and the report placed on the record of this case. This writ petition is accordingly allowed. There shall be no order as to costs. Parties to appear before the Financial Commissioner on 15th December, 2008 who shall 18 dispose of the revision within a period of six months from the date the parties first appear before him. November 4, 2008. (Dev Darshan Sud) (aks) Judge.