Back
2022 Supreme(HP) 178
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Mohammad Rafiq, Sandeep Sharma, JJ.
Sh. Lachman Son Of Sh. Poshu Ram - Appellant
Vs.
State Of Himachal Pradesh Through The Secretary (Revenue), H.P. Government, Shimla - Respondent
First Appeal From Order No. 101 Of 2011
Decided On : 12-05-2022
Advocate Appeared:
For the Appellant :Mr. G.D. Verma, Senior Advocate With Mr. B.C. Verma, Advocate
For the Respondent:Ms. Ritta Goswami, Additional Advocate General
Point of Law : It is a settled principle of law that exclusion of jurisdiction of the Civil Court is not to be readily inferred and such exclusion is either be “explicitly expressed or clearly implied”.
Headnote:
Constitution of India 1950 – Article 162 – Civil procedure code,1908 – Section 9 – Section 34 – H.P. Ceiling on Land Holdings Act, 1972 – Limitation Act,1963 – H.P. Village Common Lands Vesting and Utilization Act, 1974 – Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 – Himachal Pradesh Nautor Land Rules, 1968 – Sections. 28, 29 and 30 – Revision – Review – Restriction on transfer – Mutation – Resumption of land – Delimitation of land – Sanctioning Authority – Survey of culturable land – Application of Scheme – Whether jurisdiction of Civil Courts can be held to be barred in matters arising out of ‘Nautor Scheme’ 1975 which admittedly is a non-statutory scheme - It is a settled principle of law that exclusion of jurisdiction of the Civil Court is not to be readily inferred and such exclusion is either be “explicitly expressed or clearly implied”(Para 23).
Finding of the court: There is no provision contained under Scheme/Rules, which expressly or impliedly bars jurisdiction of civil courts – Court hold that jurisdiction of civil courts cannot be said to be barred in matters arising out of Nautor Scheme, 1975, which is admittedly a non-statutory Scheme and this Scheme cannot be equated with other two schemes i.e. Himachal Pradesh Utilisation of Surplus Area Scheme, 1975 and Himachal Pradesh Village Common Land Vesting and Utilisation Scheme, 1975, because both have sanction of law/Act passed by State Legislature – Court purposely restrain ourselves from dealing with aforesaid argument of, learned Senior Counsel in these proceedings because, any finding by this court on the question supra, may have a bearing upon merits of FAO itself filed by appellant before learned Single Judge, which is yet to be decided on its own merit.
Results: Ordered Accordingly.
ORDER :
While finding it difficult to concur and agree with the ratio laid down by learned Single Judge of this Court in Duglu Ram and others versus State of H.P. and others, 1998 (2) Shim. L.C. 98, whereby it came to be held that civil court has no jurisdiction in matters arising out of ‘Nautor Scheme’ 1975 which admittedly is a non-statutory scheme, learned Single Judge of this Court vide order dated 11.9.2018 passed in instant appeal i.e. FAO No. 101 of 2011 referred following question of law for adjudication by larger bench:
“whether the jurisdiction of the Civil Courts can be held to be barred in matters arising out of ‘Nautor Scheme’ 1975 which admittedly is a non-statutory scheme?”
2. Before answering the reference, this court, with a view to have a bird’s eye view of the matter, finds it necessary to take note of certain facts, which may be relevant for the adjudication/determination of the question referred to it
3. Late Dina Nath was granted Nautor land under the Himachal Pradesh Grant of Nautor Land to Landless Persons and Other Eligible Persons Scheme, 1975 (hereinafter, ‘Scheme’) in the year 1980. Factum with regard to afore grant stands duly recorded in the record of rights. Since above named Dina Nath died and as such, on 31.12.1984, land in question came to be mutated in favour of his legal representatives. As per para-11 of the Scheme, grantee Dina Nath or his legal heirs could not transfer the land received by them under Nautor Rules within a period of twenty years of date of grant, failing which the State Government was empowered to resume the same. Similarly, aforesaid provision in the Scheme further provides that in case the grantee or his legal heirs fail to break up the land within two years of taking possession, grant shall be liable to be resumed. Allegedly, in the case at hand, neither late Dina Nath nor his legal heirs were able to break the land within a period of two years from the date of grant and they sold the land to Lachhman, appellant-plaintiff in the case at hand, on 29.8.2005.
4. Having found violation of provisions contained under Clause 11 of the Scheme, a revision petition under Clause 9A of the Scheme came to be instituted before the Deputy Commissioner, who after having issued notice to the parties, got an enquiry conducted from Sub Divisional Officer(Civil) and Divisional Forest Officer. In the enquiry, it transpired that the grantee, late Dina Nath failed to break up the land within a period of two years from the date of taking possession of the grant and as such, learned Deputy Commissioner passed the following order on 14.5.2007:
“while the grantee was covered under clause 2(b) for grant of land from the various reports discussed above and statements of local residents/complaints, the land was never put to use by the grantee for the purpose for which it had been granted i.e. agriculture. Even, the Girdawari pertaining to the years 1986 and 1987 also indicates that Nautor land was never put to use for the purpose for which it was sanctioned. It is apparent that the grantee have violated the conditions of the grant and hence the original grant vide File No. 80, dated 1.11.1980 stands rescinded. The land under dispute shall now stands reverted back to the Revenue Department, Government of Himachal Pradesh.”
5. Being aggrieved and dissatisfied with the aforesaid order of resumption of land passed by learned Deputy Commissioner, Lachman filed Civil Suit No. 2 of 2008 in the court of learned Civil Judge (Senior Division). However, learned Civil Judge (Senior Division), Karsog, vide judgment dated 14.1.2011, dismissed the suit on the ground of jurisdiction. While returning aforesaid finding, learned Civil Judge placed reliance upon judgment passed by learned Single Judge of this Court in Duglu Ram (supra), wherein it was held that the civil court has no jurisdiction to entertain the suit, until and unless, it is shown that the impugned order is without jurisdiction or sufficient cause is shown t
