Decided On: 02.03.202 vs State Of H.P. And Others
2021 Latest Caselaw 1504 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No. 1228 of 2019

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                                                             Reserved on: 25.02.2021





                                                              Decided on: 02.03.2021
                 Jawala Prasad                                          ...Petitioner.





                                               Versus
                 State of H.P. and others                                    ...Respondents.

___________________________________________________________________

Coram:

Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting? 1 No.

For the Petitioner: Mr. K.D. Sood, Senior Advocate, with Mr. Het Ram Thakur, Advocate.

For the Respondents: Mr. Ashok Sharma, Advocate General, with

Mr. Vinod Thakur, Mr. Vikas Rathore, Mr. Shiv Pal Manhans, Addl. A.Gs., Mr. Bhupinder Thakur and Mr. Yudhbir Singh Thakur, Dy. A.Gs.

_________________________________________________________ Justice Tarlok Singh Chauhan, Judge.

This case has a chequered history.

2. The petitioner applied for grant of nautor

land bearing Khasra No. 361/346/319/1 and

336/129/1, area measuring 0­93­24 hectares, situated

in Up­Mohal Regsanthang, Tehsil Sangla, District

Kinnaur, H.P. under the Himchal Pradesh Nautor Land

Rules, 1968 (for short 'Rules'). The application was

Whether reporters of the local papers may be allowed to see the judgment? yes

rejected by the Sub Divisional Officer (Civil), Kalpa vide

order dated 16.07.2016 passed in Case No. 7/2014

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observing that condition No.4, i.e. the area is situated

at a minimum distance of one kilometer (ground

distance) from Perennial/Natural Water Source.

3. The petitioner assailed this order by filing an

appeal before the Deputy Commissioner, Kinnaur, who

dismissed the same vide order dated 20.04.2017. This

led to the filing of CWP No. 2092 of 2017 by the

petitioner and after making detailed observations, this

Court remanded the matter back to the Deputy

Commissioner, Kinnaur for a decision afresh vide order

dated 15.12.2017.

4. In compliance to the said order, the Deputy

Commissioner, Kinnaur, instead of deciding the case,

remanded it to the Sub Divisional Officer (Civil), Kalpa

vide order dated 05.03.2018. This constrained the

petitioner to again approach this Court by filing CWP

No. 1324 of 2018 and the same was allowed vide order

dated 14.06.2018 by directing the Deputy

Commissioner, Kinnaur to decide the case as

expeditiously as possible and preferably on or before

30th September, 2018.

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5. In compliance to the aforesaid order, the

Deputy Commissioner, Kinnaur rejected the claim of

the petitioner vide order dated 24.09.2018, which

constrained the petitioner to again approach this Court

by filing CWP No. 2924 of 2018 and this Court vide

order dated 11.12.2018 directed the petitioner to assail

the order of the Deputy Commissioner by filing an

appeal under Rule 28 of the Rules before the

Commissioner.

6. The petitioner thereafter filed Review

Petition No. 95 of 2018, which was allowed vide order

dated 01.01.2019 and the earlier order dated

11.12.2018 was modified to the extent that instead of

appeal under Rule 28 of the Rules, the same was

treated as Revision Petition under Rule 30 of the

aforesaid Rules.

7. The Revision Petition so filed by the

petitioner was dismissed vide order dated 06.04.2019

by according the following reasons:

"10. I have considered the arguments behalf of both the parties and have gone through the

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record of the Courts below. The main ground of

the petitioner is that being serving personnel, he is entitled for grant of nautor land under rule 7(d)

of the Rules and the criteria regarding income limit of Rs.2000/­ is not applicable in his case. From the bare perusal of the impugned order

dated 24.09.2018, passed by the Deputy Commissioner, Kinnaur in case No. 3/2018, it is clear that the Deputy Commissioner has rejected

the application of the petitioner on more than one

grounds. Besides the ground of income limit, it has been found that as per instruction issued by the Government vide letter No. Rev.B.A.(4)­

4/2001­Vol­III, dated 10.08.2006, nautor can only be granted in favour of a person who falls under the landless category. The present

petitioner does not fall under landless category

as he will inherit 0­25­44 hectares of land from his ancestor. The Deputy Commissioner, Kinnaur

has further observed that suitable chunk of government land is not available in the concerned revenue village as per requirement of the notification dated 27.5.2017, issued by the Forest Department. The record further shows that the Deputy Commissioner has rejected the application of the present petitioner, after seeking detailed reports from the revenue field agencies. From above discussions, it is clear that the

Deputy Commissioner, Kinnaur has rejected the application of the petitioner on more than one

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grounds, but the present petitioner is trying to

justify his claim by rebutting only one of such grounds."

This constrained the petitioner to file the instant petition.

8. It is averred by the petitioner that the

authority below while adjudicating and deciding the

claim of the petitioner has completely ignored the

relevant observations made by this Court while

adjudicating CWP No. 2092 of 2017, which had

attained finality as the same were never assailed by the

respondents.

9. The respondents have contested the petition

by filing reply wherein they have sought to justify their

action in line with the observations made in para­10 of

the impugned order, Annexure P­25 (supra).

10. The petitioner has filed rejoinder alongwith

which he has appended various documents including

the information sought by Sh. Jagat Singh Negi, MLA,

Kinnaur in the Vidhan Sabha through Starred question

No. 1357 and the reply thereto, which goes to show that

several persons who were never landless and whose

income were Rs.10,000/­ was granted nautor in

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Kinnaur. It is also mentioned that in case of Sh. Karjan

Dandup, the nautor was granted by ADM, Pooh on

23.08.2018 despite the fact that he had owning the

land measuring 01­06­49 hectares which is more than

12 bighas and his income was over Rs.10,000/­ per

annum. r

11. The petitioner thereafter filed a

supplementary affidavit placing on record additional

documents/information, which he received after filing

of the writ petition. This information was received by

the petitioner under Right to Information Act through

the Additional District Magistrate, Pooh vide

communication dated 22.08.2019 wherein information

regarding 26 cases, who were allowed nautor in the

year 2017­2018 and were landless have been supplied

vide Annexure P­30. Further the information supplied

by the Sub Divisional Officer (Civil), through

communication dated 22.08.2019 is also sought to be

placed wherein instances of two persons namely,

Chandu Lal and Jhar Chhering who have been granted

nautor by an order dated 24.10.2018 (Annexure P­31).

According to the petitioner, both these persons had

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considerable land at the time of grant of nautor. The

petitioner has also obtained information under Right to

Information Act from the SDM, Nichhar, which has

been received through communication dated

04.09.2019 wherein instances of 23 persons, who have

been granted nautor in the year 2016­2017 have been

furnished (Annexure P­32). On the strength of these

documents, it is averred by the petitioner that the

stand of respondents No.1 to 4 in the reply­affidavit is

false and has simply been made with a view to harass

the petitioner and deny him the benefit of the judgment

rendered in his favour.

12. The respondents have filed counter affidavit

wherein they have admitted that 26 numbers of cases

of nautor were sanctioned by the Additional District

Magistrate, Pooh in the year 2017 and one case was

sanctioned in the year 2018. Out of these, Pattas have

been issued in 2017 in two cases and rest of the cases,

Pattas have not been issued and the same have been

put on hold. It is averred that these cases have been

sanctioned in violation of the directions issued vide

letter dated 10.08.2006, 17.08.2016 and instructions

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issued by the Additional Chief Secretary (Forest) to the

Govt. of H.P. vide letter No.FFE­B­F(4)1/2015 dated

02.12.2016 and subsequent letter No. FFE­B­

F(4)1/2015 dated 27th May, 2017. It has also been

admitted that nautor cases of Chandu Lal and Jhar

Chhering have been sanctioned by the Sub Divisional

Officer (Civil), Kalpa in pursuance to the orders of this

Court dated 01.11.2017 and Pattas in these cases have

been granted in the year 2017.

13. Further, it is admitted that after issuance of

notification by the F.C.­cum­Secretary (Revenue) to the

Govt. of H.P. vide letter No. Rev.B.A(4)­4/2001­Vol­III

dated 10.08.2006, 52 numbers of cases of nautor have

been sanctioned in the District by the concerned ADM/

SDOs (C). Out of these, Pattas have been issued in 21

numbers of cases, sanction order of which belong to

Leo Village in Pooh Sub Division. In these 16 cases, the

land have been allotted for construction of houses to

those persons whose houses were washed away/

damaged in the Parchhu flood. Three Pattas were

issued in Kalpa Sub Division in pursuance to the

orders of this Court, whereas two numbers Pattas

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issued in Pooh Sub Division, are in violation of the

instructions of the Government. As such, 31 cases

which were sanctioned after issuance of instructions

dated 10.08.2006 have been put on hold. Similar

averments have been made in the reply to the rejoinder

to the main petition.

14. We have heard learned counsel for the

parties and have gone through the material placed on

record.

15. At the outset, it needs to be observed that

while adjudicating CWP No. 2092 of 2017, the Court

had made certain pertinent observations in paragraphs

5 to 12, which read as under:

5. At the outset, we may notice that indubitably the case of the petitioner has been rejected by the Deputy Commissioner only on the basis of the instructions issued by the Government on 20.4.2017 (supra) and the justification as has now been put­forth by the respondents with regard to land applied for not forming a part of the allotable pool, is clearly an after thought.

6. There is no gainsaying that every decision of an administrative or executive nature must be

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a composite and self­sustaining one, in that it

should contain all the reasons which prevailed on the official taking the decision to arrive at his

conclusion. It is beyond cavil that an Authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned

action.

7. If precedent is required for this proposition it can be found in the celebrated decision of the

Hon'ble Supreme Court in case titled Mohinder

Singh Gill Vs. The Chief Election Commissioner, New Delhi (1978) 1 SCC 405, of which the following paragraph deserves

extraction:­

"8. The second equally relevant matter is

that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned

and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may,

by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1952) 1 SCR 135: Public orders publicly made, in exercise of statutory authority cannot be construed in the light of Explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively

with reference to the language used in the order itself."

8. Apart from the above, we really wonder

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how the respondents could have feigned ignorance regarding the special category to which the petitioner belongs, particularly when they

have not disputed that he is serving as Sepoy in Dogra Scouts which is an armed force. If only the respondents had cared to read the Nautor Rules,

then such defence probably would not have been raised by them because Rule 7 of the Himachal Pradesh Nautor Land Rules, 1968 clearly

provides for preference of various categories which include service personnel in the armed forces and Ex­Servicemen as would be evident

from a bare perusal of Rule 7 itself, which is extracted below:

"7.Eligibility for nautor land. - Save for the

widow and the children of a member of an armed force or semi armed force, who has laid

down his life for the country (whose widow and children were eligible for grant anywhere within the Tehsil subject to the conditions mentioned in the wajib­ul­Arj in respect of the areas where

the land applied for is situated) no one who is not the resident in the estate in which the land applied for is situated, shall be eligible for the grant. Every resident of the estate in which the land applied for lies will be eligible in the following orders of preference:­

(a) Such persons who have less than ten bighas of land under self cultivation on 1.1.1974, whether as owners, or as tenants, or as lessees, either individually or collectively, or have an income of less than Rs. 2.000 per annum from all sources including lands. Provided that in this

category a dependent of one who has laid down his life for the defence of the country will get preference over his counterparts.

(b) Scheduled Castes and Scheduled

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Tribes applicants; and

(c) The deponents of those who have laid down their lives for the defence of the country service, for the defence of the country will

mean service in a uniformed force as well as in the capacity of civilian, so long as the death occurs on a front be it military or civil.

(d) Services personnel in the armed forces and Ex­Servicemen.

(e) Panchayats.

(f) Others.

Provided that a bonafide landless resident of Spiti shall be eligible for the grant of land in Nautor r within the Spiti Sub­Division."

9. It does not require solomon's wisdom to visualize why such special categories have been carved out in the Rule. Joining the defence service

is not only for personal gain but the person would also strive hard and risk his life to secure

the borders of the country and therefore provision of such incentives like the above is necessary at

the same time it is also in the public interest. Even during the so­called "peace time", armed

forces are faced with war like situations. They have faced with difficult situations of proxy war and have also to deal with problems of insurgency and terrorism. These armed personnel are risking their lives while dealing with the aforesaid difficult situations and, in fact, the casualties and fatalities of the soldiers are on the rise.

10. Here it shall be apposite to refer to the observations of the Hon'ble Supreme Court in

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case titled Union of India and another vs. C.S.

Sidhu (2010) 4 SCC 563, wherein dealing with a armed personnel, who had been treated

shabbily by the Government, it was observed as under:

"9.....The Army Personnel are bravely defending the country even at the cost of their

lives and we feel that they should be treated in a better and more humane manner by the governmental authorities, particularly, in respect of their emoluments, pension and other benefits."

11. Now, as far as the applicability of the instructions issued by the Government on 20.4.2017, we are clearly of the view that the

same would not apply to the case of the petitioner because admittedly he is serving as armed personnel and even though he is a Government

employee, but nonetheless he belongs to a

preferential category and has therefore a preferential right of allotment. The instructions

would not apply to his case as he enjoys a special status and has a preference in eligibility as per Rule 7 framed by the Government itself. His case cannot be clubbed with other Government employees, who are not serving Army personnels so as to deny him the benefit of Nautor, if otherwise found eligible. On the same analogy, even the criteria of income would not apply to the case of the petitioner since he is

serving as armed personnel and obviously the rule making authority was aware that such

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persons would be drawing salary.

12. That apart, even if it is assumed though not conceded that the notification of the Government

dated 20.4.2017 was applicable to the case of the petitioner, even then, his claim for grant of Nautor could not have been rejected by dismissing the appeal. The only course open to the Deputy

Commissioner was to adjourn the appeal sine die till the time the Hon'ble Supreme Court did not ultimately decide the SLP pending before it, but in no event could

the appeal be dismissed."

16. Admittedly these observations have attained

finality. Once that be so, then it is established beyond

doubt that the stand of the respondents in rejecting the

claim of the petitioner on the basis of the instructions

of the Government dated 20.4.2017 is clearly an after

thought. The petitioner belongs to special category as

he was serving as Sepoy in Dogra Scouts and is thus

entitled to the grant of nautor in accordance with Rule

7 of the Rules.

17. The instructions dated 20.4.2017 are

otherwise not applicable to the case of the petitioner

because admittedly he is serving as armed personnel

and even though he is a Government employee, but

nonetheless he belongs to a preferential category having

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a preferential right of allotment which could not have

been taken away by the aforesaid instructions.

18. Now adverting to the grounds, it would be

noticed that the major grounds on which the

application of the petitioner has been rejected are:

(i) That his income is above prescribed limit of Rs.2000/­per annum;

(ii) That as per instruction dated 10.08.2006 nautor can only be granted in favour of a person who falls under the

landless category, whereas the petitioner does not fall under landless

category;

(iii) That suitable chunk of government land

is not available in the concerned revenue village as per requirement of the

notification dated 27.5.2017 issued by the Forest Department.

19. Noticeably, all these grounds have directly

or indirectly been negated by this Court while

adjudicating CWP No. 2092 of 2017. This Court had

clearly held that criteria regarding income limit was not

applicable to the case of a person serving in the Armed

force. A person serving in Armed force could apply and

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was eligible for grant of nautor even if he does not

directly fall under the landless category.

20. As regards the claim of the respondents that

now suitable chunk of government land is not available

in the concerned revenue village, the same is clearly an

after thought because no material whatsoever has been

placed on record by the respondents to substantiate

their plea.

21. Moreover, the claim of the petitioner, who

belongs to specialized category cannot be clubbed with

other applicants, who do not belong to any of the

special category(ies), which had been recommended by

the authority and had to be granted nautor on priority

basis.

22. Above all, the officers of the respondents

could not have sat over the findings already recorded

by this Court while adjudicating CWP No. 2092 of

2017. If at all, the respondents were aggrieved by the

said judgment or any observations made therein, then

the only recourse open to them was to have assailed

the same before the Hon'ble Supreme Court, but under

no circumstance could the adjudicatory authority sit

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over the orders of this Court.

23. It is the plain and unqualified obligation of

every authority/person against or in respect of whom

the order is made by a court of competent jurisdiction

to implement and not to sit over the same. The

uncompromising nature of this obligation is shown by

the fact that it extends even to cases where the

person/authority affected by an order believes it to be

irregular or even void. Lord Cottenman, L.C. said in

Chuck v. Cremer 47 English Reports, page 820 as

under:

"A party, who knows of an order, whether null

or valid, regular or irregular, cannot be permitted to disobey it..... It would be most dangerous to

hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid­whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the Court

that it might be discharged. As long as it existed it must not be disobeyed."

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24. Lastly, and more importantly, we are

constrained to observe that the respondents have left

no stone unturned by making all endeavour to defeat

the legitimate claim of the petitioner by changing their

stand time and again which practice needless to say

deserves to be deprecated.

25. to In view of the aforesaid discussion, we find

merit in this petition and the same is accordingly

allowed. The impugned order(s) dated 16.07.2006

(Annexure P­2), 24.09.2018 (Annexure P­20) and

06.04.2019 (Annexure P­25) are quashed. We direct

the respondents to grant Patta in accordance with

Rules in favour of the petitioner.

26. The writ petition is disposed of in the

aforesaid terms, so also the pending application(s), if

any. The parties are left to bear their own costs.

(Tarlok Singh Chauhan) Judge

(Jyotsna Rewal Dua) 2 nd March, 2021. Judge (GR)