Jawala Prasad vs State Of H.P. And Others

Tarlok Singh Chauhan, J

This case has a chequered history.

The petitioner applied for grant of nautor land bearing Khasra No. 361/346/319/1 and 336/129/1, area measuring 0Â93Â24 hectares, situated in

UpÂMohal Regsanthang, Tehsil Sangla, District Kinnaur, H.P. under the Himchal Pradesh Nautor Land Rules, 1968 (for short ‘Rules’). The

application was rejected by the Sub Divisional Officer (Civil), Kalpa vide order dated 16.07.2016 passed in Case No. 7/2014 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.

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.

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.

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.

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.

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 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/Â 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)Â 4/2001ÂVolÂIII, 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 0Â25Â44 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 grounds, but the present petitioner is trying to justify his claim by rebutting only one of such grounds.â€​

This constrained the petitioner to file the instant petition.

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.

The respondents have contested the petition by filing reply wherein they have sought to justify their action in line with the observations made in

paraÂ​10 of the impugned order, Annexure PÂ​25 (supra).

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/Â​ was granted nautor in 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 01Â06Â49 hectares which is more than 12 bighas

and his income was over Rs.10,000/Â​ per annum.

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 2017Â2018 and were landless have

been supplied vide Annexure PÂ30. 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 PÂ31). According to the petitioner, both these persons had 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 2016Â2017 have been furnished (Annexure PÂ32). On the strength of

these documents, it is averred by the petitioner that the stand of respondents No.1 to 4 in the replyÂaffidavit 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.

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 issued by the Additional Chief Secretary (Forest) to the Govt. of H.P.

vide letter No.FFEÂBÂF(4)1/2015 dated 02.12.2016 and subsequent letter No. FFEÂBÂ 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.

Further, it is admitted that after issuance of notification by the F.C.ÂcumÂSecretary (Revenue) to the Govt. of H.P. vide letter No.

Rev.B.A(4)Â4/2001ÂVolÂIII 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 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.

We have heard learned counsel for the parties and have gone through the material placed on record.

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:

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 putÂforth by the respondents with regard to land

applied for not forming a part of the allotable pool, is clearly an after thought.

There is no gainsaying that every decision of an administrative or executive nature must be a composite and selfÂsustaining 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.

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:Â​

“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.â€​

Apart from the above, we really wonder 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 ExÂServicemen as

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

“7.Eligibility for nautor land. â€" 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 wajibÂ‐

ulÂArj 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:Â​

(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 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 ExÂ​Servicemen.

(e) Panchayats.

(f) Others.

Provided that a bonafide landless resident of Spiti shall be eligible for the grant of land in Nautor within the Spiti SubÂ​Division.â€​

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 soÂcalled “peace timeâ€, 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.

Here it shall be apposite to refer to the observations of the Hon’ble Supreme Court in 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.â€​

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 persons would be drawing salary.

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.â€​

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.

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 a preferential right of allotment which could

not have been taken away by the aforesaid instructions.

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/Â​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.

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 was eligible for grant of nautor even if he does not directly fall under the landless category.

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.

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.

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 over the orders of this

Court.

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 validÂwhether 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.â€​

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.

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 PÂ2), 24.09.2018 (Annexure PÂ20) and 6. 04.2019 (Annexure PÂ25) are quashed. We direct the respondents to grant Patta in

accordance with Rules in favour of the petitioner.

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.