IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 244 of 2001. Reserved on: 02.01.2008. Decided on: 25.02.2008. Sunil Kumar. … … Petitioner. Versus State of Himachal Pradesh & Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 yes For the Petitioner: Mr. Bipin Negi, Advocate. For Respondents No.1 & 2: Ms. Meenakshi Sharma, Deputy Advocate General. For Respondent No.3: Mr. K.D. Sood, Advocate. Rajiv Sharma, Judge: The brief facts necessary for the adjudication of this petition are that the allotable pool for Mohal Giora, Mauza Chhatroli, Tehsil Nurpur, District Kangra was finalized on 23.9.1975. The Tehsil Revenue Officer prepared the list of eligible persons for Mohal Giora on 10.10.1975. The name of the petitioner figures at Sr. No.30 of the list. The land proposed to be allotted to the petitioner was 1-15 kanals in Khasra No.264/4. It appears from the record that the list was also approved by the Collector, Nurpur. The land was allotted to the petitioner on 11.2.1980 when the petitioner attained the age of majority. The mutation after the payment of Whether reporters of local papers may be allowed to see the judgment? yes - 2 - Government dues was attested in favour of the petitioner on 7.5.1980. Respondent No.3, Shri Narinder Kumar made a complaint to the Revenue Minister against the allotment of land made in favour of the petitioner. The copy of the complaint was also endorsed to the Divisional Commissioner, Kangra Division. The copy of the complaint which was endorsed to the Divisional Commissioner, Kangra Division was forwarded to the District Magistrate for inquiry on 11.2.1999. The matter was enquired by the Sub-Divisional Officer (Civil), Nurpur. The Sub-Divisional Officer (Civil), Nurpur concluded that the land had wrongly been allotted to the petitioner. The respondent No.3 thereafter filed the petition before the Additional District Magistrate, Kangra, District Kangra exercising the powers of the Commissioner under the Himachal Pradesh Village Common Lands Vesting and Utilization Rules, 1975 and the Scheme framed thereunder on 18.4.2000. The Additional District Magistrate, Kangra canceled the order of allotment dated 11.2.1980 with a further direction that the petitioner be dispossessed of the land in his possession and the possession be handed over to the State of Himachal Pradesh through the Tehsildar concerned. The present petition has been filed to assail the order dated 17.1.2001 passed by the Additional District Magistrate, Kangra District. Mr. Bipin Negi strenuously argued that the order dated 17.1.2001 is not sustainable in the eyes of law. The learned Deputy Advocate General appearing on behalf of respondents No.1 and 2 and Mr. K.D. Sood appearing on behalf of respondent No.3 have supported the order dated 17.1.2001. The respondents No.1 and 2 were directed to produce the entire record on 5.10.2007. The record called for was perused by the Court carefully to ascertain the manner in which the application of the petitioner - 3 - for the allotment of the land has been processed and completed by the authorities concerned. It will be pertinent to take note of a few provisions of the Himachal Pradesh Village Common Lands Vested and Utilization Act, 1974 and the Rules framed thereunder as well as the Scheme. The Legislative Assembly of the State of Himachal Pradesh has enacted the Act called the Himachal Pradesh Village Common Lands Vested and Utilization Act, 1974 (hereinafter referred to as the Act) to provide for Vesting and Utilization of Village Common Lands in the State of Himachal Pradesh. Section 2 of the Act defines the expression (a) Collector, (b) Common purposes, (c) “Landless person”, (dd) Other eligible person. Section 8 lays down the procedure for utilization of the land vested in the State Government. Un-amended Section 8 of the Act reads thus:- “8. Utilization of land vested in the State Government. – (1) All lands vested in the State Government under this Act shall be utilized for the following purposes:- (a) an area not less than fifty per cent of the total area vested in the State Government under section 3 of this Act for grazing and other common purposes of the inhabitants of an estate; and (b) the remaining land for allotment to a landless person or a person whose holding is less than one acre to make his holding one acre under a scheme to be framed by the State Government by notification in the Official Gazette. The allottee shall pay an amount at the rate of forty-eight times the land revenue and rates and cesses chargeable on - 4 - land allotted to him under the said scheme, either in lump sum or in six monthly instalments not exceeding four. (2) The land reserved under clause (a) of sub-section (1) of this section shall be demarcated by such Revenue Officer and in such manner as may be prescribed. (3) Any scheme framed by the State Government under clause (b) of sub-section (1) of this section may provide for the terms and conditions on which the land is to be allotted. (4) The State Government may, by notification in the Official Gazette, add to amend, vary or revoke any scheme made under this section.” An amendment was carried out by the Himachal Pradesh Village Common Lands Vested and Utilization Act, 1974 (Amendment Act 1987) whereby the following proviso was added to clause (c) of Section 2 in the principal Act: “Provided that a person whose father is alive or whose annual income from all sources exceeds Rs.3000/- shall not be deemed to be a landless person; and” after the existing clause 2(d) clause (dd) was added in the principal Act which reads thus:- “Other eligible person means a person; (i) who, holding land for agricultural purposes less than an acre whether as an owner or a tenant, earns his livelihood principally by manual labour on land and intends to take the profession of agriculture and is capable of cultivating the land personally; (ii) whose father is not alive; and - 5 - (iii) whose annual income from all sources does not exceed Rs.3000/-; and shall not include a person who holds a share or a portion of an estate jointly owned or cultivated by two or more persons.” Similarly, for clause (b) of sub-section (1) of Section 8, the following clause (b) was substituted in the following manner:- “(b) The remaining land- (i) for allotment to a landless person or any other eligible person; or (ii) for allotment of site to a handicapped or houseless person for the construction of a house; under a scheme to be framed by the State Government by notification in the Official Gazette and the allottee shall pay an amount at the rate of forty-eight times of the land revenue and rates and cesses chargeable on the land allotted to him under the said scheme, either in lump sum or in six monthly instalments not exceeding four.” These amendments are deemed to have come into force with effect from the date of commencement of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, i.e. 29.8.1974. It appears that the State Government had issued certain executive instructions in October, 1975 prescribing that a person having his father alive and having income exceeding Rs.3,000/- per annum from all sources shall not be a “landless person” for the purpose of allotment of land. Since the State Government was finding it difficult to implement the Act on the strength of the executive instructions, it decided to amend the definition of the expression “landless person”. The statement of objects and reasons for carrying out the amendments as noted above reads thus:- - 6 - “In 1975, a massive programme of allotment of land was launched by the Government under the 20-Point Programme enunciated by the Prime Minister. Under this programme, all the landless agricultural labourers who had no land or had land less than an acre, were to be allotted land upto an acre. The latter category was called “other eligible persons”. Among the sources from which land was and is being allotted to both the categories, is the village common land vested in the Government under the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974. The definition of the expression “landless persons” as given in that Act at present, was supplemented by instructions issued in October, 1975 laying down that a person having his father alive and income exceeding Rs.3,000/- per annum from all sources shall not be a landless person for the purposes of allotment of land. The allotment of land has been made in the light of these guidelines and allotments found to have been made in violation of these administrative instructions had been cancelled by the competent authority. This arrangement has, however, not found favour with the Civil Courts which have held that the definition of expression “landless person” as given in the Act does not embody the conditions prescribed under the administrative instructions. It has, therefore, become necessary to amend the above definition and make consequential provisions to cancel the allotment of lands obtained by certain unscrupulous persons by concealing facts at the relevant time. Besides, the State Government has also decided that a handicapped person having 50% or more disability should be granted house-site for construction of his house. Then there may be other purposes also for which land is often required. At present there is no enabling provision in the Act on this score. Section 8 has, therefore, to be amended suitably. - 7 - This Bill seeks to achieve the aforesaid objectives.” The State has also framed the Rules called the “Himachal Pradesh Village Common Lands Vesting and Utilization Rules, 1975”. Rule 2 is a dictionary clause and defines the expression, ‘allotable pool’ and, ‘eligible person’. Rule 3 lays down the procedure for taking possession of the land and Rule 4 prescribes that after the possession of shamlat land has been taken under Rule 3, the Collector shall ask the Tehsil Revenue Officer to mutate the land in favour of the State Government. Rule 6 lays down in detail the procedure of demarcation of land under Section 8. Rule 8 provides for entry of demarcation order in Tehsil Register and land records. A scheme has also been framed by the State called the “Himachal Pradesh Village Common Lands Vesting and Utilization Scheme, 1975. Para 3 of the Scheme lays down the procedure to be observed by the Tehsil Revenue Officer. Para 5 prescribes the procedure for allotment of land from the allotable pool. Para 7 provides that each allottee shall be given a certificate in Form-II by the Collector. Para 8 provides that after making the allotment, the Collector shall also pass an order for delivery of possession of the land to the allottee. The conditions of allotment are enumerated in para 9 of the Scheme. Sub-para (4) of para 13 being relevant for the adjudication of this petition is reproduced as under:- “(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 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 - 8 - grant of land and make such other orders in connection therewith as he deems necessary in the circumstances of the case.” It is not disputed in the present case by the parties that the allotable pool was finalized on 23.9.1975. The demarcation was carried out and the statements were recorded on 23.9.1975. The list of eligible persons was finalized on 10.10.1975. The name of the petitioner figures at Sr. No.30 of the list drawn on 10.10.1975. However, the allotment order was passed in favour of the petitioner only on 11.2.1980. The petitioner was allotted land measuring 1-15 kanals under Khasra No.264/4. The mutation was attested in favour of the petitioner on 7.5.1980. On the basis of the complaint made by respondent No.3, the matter was enquired by the Sub Divisional Officer (Civil), Nurpur, who found conclusively that the allotment made in favour of the petitioner was bad in law. A regular petition was filed by respondent No.3 on 18.4.2000 before the Additional District Magistrate, Kangra exercising the powers of Commissioner under the Himachal Pradesh Village Common Lands Vesting and Utilisation Scheme, 1975. The petitioner was about 14 years of age at the time of the preparation of the list of eligible person on 10.10.1975. This list was duly approved by the Collector, Nurpur. The file thereafter was consigned to records. However, the patta was executed in favour of the petitioner on 11.2.1980 after withdrawing the file from the records. The competent authority while executing the patta in favour of the petitioner on 11.2.80 was required to assign reasons on the file why the file has been withdrawn from the records and patta was executed in favour of the petitioner on 11.2.1980 though the list of eligible persons was approved by the Collector in the year 1975. The only apparent reason for doing so - 9 - was to ensure that the petitioner attains the full age to enable him to execute the patta in the year 1980. Mr. Bipin Negi had strenuously argued that his client was fully eligible to get the land allotted and the same could not be cancelled by the Additional District Magistrate on 17.1.2001 since the proviso has been added to clause (c) of Section 2 of the principal Act in the year 1987 and clause (dd) explaining the expression “other eligible person” has been added in the year 1987 and the same has to be given prospective effect. It is clear from the record that the petitioner’s father was alive at the time of preparing the list on 10.10.1975 of eligible persons and also at the time when the allotment was made on 11.2.1980. The amendments have been carried out in the year 1987 and as noted above, the same has come into force with effect from the date of the commencement of the Act, i.e. 1974. The ground has also been taken that the petitioner has been adopted by his aunt, but no adoption deed was ever placed on record. The Additional District Magistrate, Kangra has come to the just conclusion that the aunt her-self was residing with petitioner’s father. The petitioner’s father owned a property and the petitioner could not be treated as “landless person” under the Act to be eligible for the allotment of the land. The other glaring fact which has been brought to the notice of the Court by the learned Deputy Advocate General is that the land which was allotted to the petitioner was already in possession of his father by way of encroachment. It appears that the entire exercise has been undertaken by the petitioner’s father to get the encroachment regularized by including the name of the petitioner in the list of eligible persons in the year 1975 and thereafter to get the same allotted to him by way of certificate dated 11.2.1980. There is no explanation why the file was withdrawn after being consigned to the records in the year 1980. The entire process was completed in the year 1975 so far as the finalization of - 10 - allotable pool, demarcation etc. is concerned. The petitioner at the time of insertion of his name in the list was about 14 years old and was not eligible as per the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 and the Rules framed thereunder. The whole-some principle for allotting the land under the Scheme is to allot land to the landless/eligible persons and not to the persons like the petitioner who was only 14 years at the time of inclusion of his name in the list of eligible persons in the year 1975. The illegality which has been committed in the year 1975 by including the name of the petitioner in the list will not be treated to be regularized by the issuance of certificate dated 11.2.1980. The allotment made in favour of the petitioner in the manner discussed hereinabove is contrary to the Scheme of the Act and the same is not approved by this Court. The land in question was to be utilized only for the purpose of agriculture, but it is evident from the order of the Additional Magistrate that on a portion of land there is a rice-sheller, flour mill, Court- yard and a shop and even a PWD road. It appears that the land was not even intended to be used for agricultural purposes. The contention of Mr. B.C. Negi that the Additional District Magistrate could not re-open the matter after 20 years is also mis- conceived and the same is rejected. It is apparent from the record that the allotment was got made in favour of the petitioner by not disclosing the true facts, namely, that the petitioner was a minor at the time of inclusion of his name in the list of eligible persons in the year 1975 and was also not a landless/eligible person as per the Act. These facts were only brought to the notice of the authorities by respondent No.3 in the year 1999 on the basis of which the inquiry was conducted by the Sub- Divisional Officer (Civil) and formal petition was filed on 18.4.2000 by respondent No.3. In these circumstances it is held that the petition was filed by the respondent No.3 within a reasonable time and the order - 11 - passed by the Additional District Magistrate even though after 20 years of the allotment is legal and valid. In view of the above discussion, there is no merit in the writ petition and the same is dismissed with no order as to costs. February 25, 2008. (Rajiv Sharma) (sck). Judge