IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 405 of 1999 Decided on : 23.7.2010 Kodi Devi ….. Appellant. Vs. The State of Himachal Pradesh and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. K.D. Sood, Advocate. For the Respondents : Mr. P.K. Sharma, Additional A.G. for respondent No.1 Kuldip Singh, Judge (Oral). The appellant was plaintiff in civil suit No. 19-92, which was dismissed by the learned Sub Judge, Ist Class-I, Dharamshala on 11.8.1997. The matter was carried in appeal and the learned Additional District Judge (I) Kangra at Dharamshala in civil appeal No. 66-D/97 on 9.11.1999 partly allowed the appeal, suit of the appellant for declaration was dismissed but the suit for permanent injunction to restrain respondents from interfering in her possession till she was evicted in due process of law was decreed. The judgment, decree dated 11.8.1997 was accordingly modified. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2. The facts, in brief, are that appellant had filed a suit for declaration that she is owner-in-possession of land more specifically described in the plaint. The land in question was allotted to her by Collector, Kangra Sub Division on 20.3.1986 but the Additional District Magistrate, Kangra cancelled allotment on 17.2.1992. It has been alleged that the order of cancellation dated 17.2.1992 is without jurisdiction, illegal and arbitrary. The respondents threatened to interfere in the ownership and possession of the appellant and, therefore, the suit was filed. 3. The further case of the appellant is that the land in question was allotted to her on 1.2.1980 under the Himachal Pradesh Village Common Lands Vesting and Utilization Scheme, 1975(for short ‘the Scheme’). She was put in possession of the suit land on 1.2.1980. The certificate of allotment in Form No.II was given to her on 20.3.1986 by Collector, Kangra. The allotment was given effect in mutation No. 114 sanctioned on 30.8.1986. The suit land was allotted to her as she was found eligible for allotment being landless lady under the Scheme. She has improved the land after allotment by spending huge amount. She has also constructed her residential house over the suit land. Om Parkash, predecessor-in-interest of respondents 2(a) to 2(c) through Cantonment Board, Yol had served a notice upon the appellant calling upon her to demolish the structure existing over the suit land. She filed civil suit No. 341/1980 dated 30.9.1980, which was decreed by the learned Sub Judge First Class, Dharamshala on 31.7.1982. Thereafter Om Parkash submitted a complaint before the Deputy Commissioner, Kangra alleging therein that appellant was not a landless, she owned land in Mauja Kaloha, …3… Tehsil and District Kangra. The Additional District Magistrate exercising powers of Collector Kangra cancelled the allotment of the suit land on 17.2.1992 with further direction to Sub Divisional Magistrate(Civil), Dharamshala to initiate ejectment proceeding against appellant. In these circumstances, the suit was filed. 4. The respondent No.1 contested the suit by filing written statement, objection of lack of notice under Section 80 CPC, estoppel, non-joinder of Bartandars and jurisdiction of the court to entertain the suit were taken. On merits, it was admitted that suit land was allotted to appellant, but it was contended that allotment was obtained by appellant by misrepresenting the fact that she was landless. It has been alleged that appellant and her two daughters owned land in Mohal Suti, Mauza Kaloha and at the time of allotment of suit land she was in possession of said land. The cancellation order dated 17.2.1992 is legal and no fault can be found with the same. The appellant is encroacher. The predecessor-in-interest of respondents 2(a) to 2(c) also contested the suit by filing separate written statement and took more or less the similar pleas as were taken by respondent No.1. The appellant filed replication and reasserted her case. 5 On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is owner in possession of suit land by way of allotment under H.P. Village Common Lands Vesting and Utilization Scheme, 1975? OPP. 2. Whether the plaintiff was put into possession of suit land by revenue officials on 1.2.80, as alleged? OPP. …4… 3. Whether the order dated 17.2.1992 of A.D.M. Dharamshala is wrong, illegal, null and void, as alleged, OPP. 4. Whether the suit is bad for want of notice under Section 80 CPC? OPD. 5. Whether the plaintiff is estopped by her own act and conduct? OPD 6. Whether the suit is bad for non-joinder of Bartan Daran? OPD. 7. Whether the court has no jurisdiction to entertain the suit in view of Section 171 of H.P. Land Revenue Act, OPD. 8. Whether the plaintiff has no cause of action to file the suit? OPD. 9. Relief. The issues No. 1 to 4, 7 to 9 were answered in negative, issues No. 5 and 6 in affirmative and suit was dismissed by the learned sub Judge on 11.8.1997. In appeal, on 9.11.1999, the learned Additional District Judge allowed the appeal partly as noticed above. The appellant has come in appeal against judgment, decree dated 9.11.1999. The respondents have not filed any cross-objection nor they have filed any separate appeal against the impugned judgment, decree. The appeal has been admitted on following substantial questions of law: 1. Whether the allotment of land to the appellant on the basis of report PB and PC of the Patwari and Tehsildar, made by the Collector as landless person on 1.2.1980 and issuance of allotment letter by the Collector on 20.3.86 could be set aside by the A.D.M. on the plea that the land granted to her under a maintenance decree against the husband subsequently made her ineligible for the grant? …5… 2. Whether the order of A.D.M. dated 17.2.92 Ext.PA/3 cancelling allotment was illegal, without jurisdiction and against the principles of natural justice and therefore did not affect the right of the plaintiff? 3. Whether the order of the ADM canceling allotment in favour of the appellant without affording an opportunity of hearing could be sustained when the appellant had constructed a costly house and raised an orchard without protest or objections? 6. I have heard Mr. K.D. Sood, learned counsel for appellant and learned Additional Advocate General on behalf of respondent No.1. It has been submitted on behalf of appellant that the Additional Deputy Commissioner had no jurisdiction to cancel the allotment of suit land made in favour of the appellant under the Scheme. It has been submitted that order dated 17.2.1992 Ext.PA/3 is without jurisdiction and, therefore, on this ground alone the impugned judgment, decree are liable to be set aside to the extent relief has not been granted by the learned Additional District Judge. It has been submitted that the appellant is entitled to declaration of ownership and possession and injunction as prayed in the suit. The learned Additional Advocate General has contended that the appellant was not eligible for allotment of land under the Scheme. Therefore, the Additional Deputy Commissioner on 17.2.1992 has rightly cancelled the allotment of the land. He has submitted that the impugned judgment, decree are just and equitable. He has prayed for dismissal of the appeal. 7. The substantial questions of law No. 1 to 3 are inter connected, therefore, substantial questions of law No. 1 to 3 are …6… taken up collectively for determination. The core issue raised by learned counsel for the appellant is that order dated 17.2.1992 Ext.PA/3 is without jurisdiction. The allotment of land under the Scheme has not been denied by the respondents. The case of the respondents is that appellant misrepresented the facts and obtained allotment of suit land under the Scheme and when this fact came to the notice of the authorities the allotment of land in favour of the appellant was cancelled vide order dated 17.2.1992 after notice to the appellant. 8. Ext.P-C is the report dated 20.3.1980 of Patwari recommending that Patta of land comprising Khasra Nos. 45-46-41- 1085/3 may be given in favour of Kodi Devi. Ext.P-B is the recommendation dated 28.5.1980 of Tehsildar, Kangra in favour of the appellant regarding land comprised Khasra Nos. 45-46-41- 1085/3. Ext.P-6 is the certificate dated 20.3.1986 of allotment of land in favour of Kodi Devi comprised in Khasra Nos. 45-46-41-1085/3 allotted to her under the Scheme. Ext.PA/3 is the order dated 17.2.1992 of Additional Deputy Commissioner in case No. 21. In Ext.PA/3 it has been stated that Om Parkash has submitted complaint dated 20.3.1991 that Kodi Devi by swearing a false affidavit has obtained allotment of land. On the basis of complaint dated 20.3.1991 allotment of land was cancelled on 17.2.1992. 9. The conditions of allotment are provided in clause 9 of the Scheme, which are as follow: “9 Conditions of allotment- The allotment shall be subject to the following terms and conditions:- …7… (a) 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; (b) 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; (c) 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 or first installment of such dues, as the case may be, (d) 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 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 bring the land under cultivation. (e) 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; (f) the land allotted under this scheme shall not be subject to fragmentation by way of partition transfer or by any other mean’ and (g) 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 orders shall further be recorded in the remarks column of the Jamabandi in which the mutation pertaining to the land is incorporated.” …8… 10. Clause 11 of the Scheme provides cancellation of allotment in certain cases, namely, when allottee makes any default in the payment of amount due from him or infringes any of the conditions of allotment. But no cancellation of allotment will be made unless the allottee is given an opportunity of being heard. The default in payment of installment or installments due to the Government from the allottee are recoverable as arrears of land revenue. 11. Clause 13 of the Scheme provides appeal by an aggrieved person against the order of the Collector before the Commissioner within 30 days. The order dated 17.2.1992 Ext.PA/3 has been passed on the basis of complaint dated 20.3.1991 vide which allotment of land in question was cancelled by Additional Deputy Commissioner. The perusal of order 17.2.1992 Ext.PA/3 indicates that only ground on which the allotment has been cancelled is that appellant was having another piece of land at the time of allotment and, therefore, she was not entitled to land under the Scheme. There is nothing in Ext.PA/3 that appellant had not paid the dues of the Government or she has infringed any conditions of the allotment. The conditions of allotment are provided in clause 9 of the Scheme and perusal of clause 9 prima facie no where indicates that the allotment will be cancelled in case later on it is found that allotment was made in violation of Act. The State Government under clause 9(d) has power of resumption in case of violation of provisions, but allotment has been cancelled by Additional Deputy Commissioner. It has not been shown that Additional Deputy Commissioner was vested with powers of State Government for …9… purposes of clause 9(d) of the Scheme. Therefore, order of cancellation of allotment dated 17.2.1992 is not sustainable. 12. The proceedings were initiated against the appellant on the basis of complaint dated 20.3.1991 of Om Parkash and even if it is construed that such complaint can be entertained as an appeal under clause 13 of the Scheme then that was to be filed within 30 days from the date of allotment or such longer period as Commissioner may allow for reasons to be recorded in writing. 13. The certificate of allotment Ext.P-6 is dated 20.3.1986, therefore, it can be safely concluded that the land was allotted to appellant at least on 20.3.1986 if not earlier. The complaint was filed by Om Parkash on 20.3.1991 nearly about 5 years after the allotment. There is nothing on record that delay was condoned by Additional Deputy Commissioner, therefore, order dated 17.2.1992 Ext.PA/3 is without jurisdiction inasmuch as on 20.3.1991, the Additional Deputy Commissioner, Kangra without condoning the delay could not entertain the complaint even if it was to be treated as an appeal under clause 13 of the Scheme. The order dated 17.2.1992 passed by the Additional Deputy Commissioner, Kangra is without jurisdiction. 14. It has been submitted that allotment is liable to be cancelled under sub-clause(4) of clause 13 of the Scheme if it comes to the notice of Commissioner that allotment was made to a person who was not entitled or eligible for allotment. In para 1 on merits of written statement it has been pleaded by respondent No.1 that the order has been passed by Additional District Magistrate exercising the powers of Collector, Kangra for cancellation of Patta after affording due opportunity to plaintiff on 17.2.1992. It has not been shown that …10… Additional District Magistrate/Additional Deputy Commissioner, Kangra had the powers of Commissioner under clause 13 of the Scheme. Thus seen from any angle the order dated 17.2.1992 passed by Additional District Magistrate/Additional Deputy Commissioner is without jurisdiction. The two courts below have not considered the legal provisions properly even though the appellant had taken a specific plea in the written statement that the order dated 17.2.1992 is without jurisdiction. 15. It has been held above that order dated 17.2.1992 Ext.PA/3 is without jurisdiction, therefore, it is not necessary to go into the question whether any land was allotted to appellant for her maintenance under the decree and hence she was otherwise landless and eligible for allotment of land under the Scheme. The substantial questions of law 1 to 3 are accordingly decided in favour of the appellant. The impugned judgment, decree are liable to be set aside. 16. No other point was urged. 17. The result of the above discussion, the appeal is allowed and judgment, decree dated 9.11.199 passed by the learned Additional District Judge Kangra at Dharamshala in Civil appeal No.66-D/97 are modified and suit of the appellant/plaintiff for declaration of ownership with possession and permanent prohibitory injunction is decreed with no order as to costs. July 23, 2009. ( Kuldip Singh ) (VT) Judge. …11…