Himachal Pradesh High Court
Sh. Lachman vs State Of H.P. And Others on 12 May, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 12 DAY OF MAY 2022
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
FIRST APPEAL FROM ORDER NO. 101 OF 2011
Between:-
SH. LACHMAN
SON OF SH. POSHU RAM,
RESIDENT OF VILLAGE CHALWNI,
P.O. KARSOG, DISTRICT MANDI,
H.P.
APPELLANT/PLAINTIFF
(BY MR. G.D. VERMA, SENIOR ADVOCATE
WITH MR. B.C. VERMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH THE SECRETARY (REVENUE),
H.P. GOVERNMENT, SHIMLA-2
2. THE DISTRICT COLLECTOR,
MANDI, DISTRICT AT MANDI,
H.P.
3. THE COLLECTOR,
KARSOG, SUB DIVISION AT
KARSOG, DISTRICT MANDI, H.P.
RESPONDENTS/DEFENDANTS
4. SH. MANDI RAM,
SON OF NAJKU,
RESIDENT OF VILLAGE MATETH,
TEHSIL KARSOG, DISTT. MANDI
5. SH. DAYA CHAND
SON OF MASSADI,
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2
RESIDENT OF VILLAGE JOHRU,
P.O. KARSOG, DISTRICT MANDI,
H.P.
6. SH. NANANK CHAND
SON OF MASSADI,
RESIDENT OF VILLAGE DOGRI,
.
P.O. KARSOG, DISTRICT MANDI,
H.P.
7. SH. BHAG SINGH
SON OF SH. DHARI,
RESIDENT OF VILLAGE MATHET,
P.O. KARSOG, DISTRICT MANDI,
H.P.
8. SOM KRISHAN
SON OF MASADDI,
RESIDENT OF VILLAGE JOHRU,
P.O. KARSOG, DISTRICT MANDI,
H.P. r
9. SH. BEGI RAM (DIED)
SON OF MASSADI,
RESIDENT OF VILLAGE JOHRU,
P.O. KARSOG, DISTRICT MANDI, H.P.
THROUGH LEGAL REPRESENTATIVES:
(I) SH. DINESH KUMAR
SON OF LATE SH. BEGI RAM,
R/O VILLAGE DOGHARI-MATAL,
P.O. KARSOG, TEH. KARSOG,
DISTT. MANDI, H.P.
(II) SMT. NEELAM
D/O LATE SH. BEGI RAM AND
W/O SH. KHOOB RAM,
R/O MATAL P.O. KATOUCHI
TEH. KARSOG, DISTT. MANDI, H.P.
(III) SMT. NISHA
D/O LATE SH. BEGI RAM &
W/O SH. PREM DASS
R/O VILLAGE GARCHAR, P.O. BAKROT,
TEH. KARSOG, DISTT. MANDI, H.P.
(IV) SMT. PUNAM
D/O LATE SH. BEGI RAM AND
W/O SH. CHET RAM
R/O VILLAGE NAGALNI P.O. BAKHROT
TEH. KARSOG, DISTT. MANDI, H.P.
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3
(V) SMT. KAMLESHWARI
WIDOW OF LATE SH. BEGI RAM
R/O VILLAGE DOGHARI,
P.O. AND TEH. KARSOG,
DISTT. MANDI, H.P.
.
10. SH. NAR SINGH DASS
SON OF SH. MASSADI,
RESIDENT OF VILLAGE JOHRU,
TEHSIL KARSOG, DISTRICT MANDI,
H.P.
11. SH. LAL MAN
SON OF SH. DHAGARI
RESIDENT OF VILLAGE MATEHAT,
P.O. KARSOG, TEHSIL KARSOG,
DISTRICT MANDI, H.P.
12. SH. PAWAN KUMAR (DELETED)
SON OF DINA NATH
13. SH. MAHINDER KUMAR
SON OF DINA NATH
14. SMT. KUNTI DEVI
WIDOW OF LATE SH. DINA NATH,
RESIDENTS OF VILLAGE MATEHAT,
P.O. KARSOG, TEHSIL KARSOG,
DISTRICT MANDI, H.P.
RESPONDENTS
(MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE GENERAL
FOR R-1 TO R-3)
(NONE FOR R-4 TO 7, 9(I) TO 9(V), 10 & 11)
(R-12 DELETED)
___________________________________________________________
This appeal coming for orders this day, Hon'ble Mr. Justice Sandeep
Sharma, passed the following:
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 ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 4 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 ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 5 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 ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 6 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 that the remedy provided under the Statute could not be availed of. Learned Civil Judge held that it was not having jurisdiction to grant declaration sought by the plaintiff to the effect that he is absolute owner-in-possession of suit land and order of Deputy Commissioner dated 14.5.2007 in petition titled Mani Ram vs. Pawan Kumar etc. is without jurisdiction.
6. In the aforesaid background, appellant-plaintiff Lachman, being aggrieved and dissatisfied with dismissal of his suit, as detailed above, approached learned Single Judge of this Court by way of FAO No. 101 of 2011.
7. Learned Single Judge, while dealing with the case at hand, after having found that learned Single Judge in Duglu Ram (supra) equated/considered the non-statutory scheme of the year 1975, as if the same were a statutory scheme, formed an opinion that the view taken by learned Single Judge in Duglu Ram may not be the correct law and as such, on 21.8.2018, passed detailed order calling upon the counsel representing the parties to assist the Court on the point. After having heard parties at length, vis-à-vis proposition of law formulated by learned Single Judge passed a detailed order on 11.9.2018, whereby question for adjudication by larger bench, as detailed herein above, came to be referred.
::: Downloaded on - 12/05/2022 20:06:10 :::CIS 78. Ms. Ritta Goswami, learned Additional Advocate General, while making this court peruse the Scheme in its entirety, vehemently argued that the Scheme is framed under the Himachal Pradesh Nautor Land Rules, 1968 (hereinafter, 'Rules') and power to frame such Rules/Scheme .
has been derived by the State under Art. 162 of the Constitution of India and as such, it cannot be said that the Scheme is non-statutory. Ms. Goswami further argued that the Scheme is self-contained, wherein remedy of review, revision and appeal has been provided to the aggrieved persons for redressal of their grievance. She further submitted that the Scheme is formulated with main objective to grant land to poorest of poor person and remedy is provided so that the person should not be dragged into prolonged litigation and in case, submission made on behalf of learned counsel for the appellant that the civil court has jurisdiction in such cases, is accepted, very purpose and object of the Scheme would be defeated. While placing reliance upon a few judgments, which shall be taken note of herein after, Ms. Goswami vehemently argued that it has been repeatedly held by courts of law that Nautor Scheme/Rules prescribe a complete code of conduct and detailed procedure of enquiry at every stage and as such, it has all characteristics of a law. She further submitted that where statute gives finality to the orders of special tribunal, jurisdiction of civil court must be held to be excluded. Lastly, supporting the impugned judgment passed by civil court, Ms. Goswami placed heavy reliance upon judgment rendered by Hon'ble Apex Court in Dhulabhai v.
State of M.P. AIR 1969 SC 78, wherein it has been held that jurisdiction of civil court stands ousted where revenue court officer or authorities are ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 8 empowered under the Act to determine; to question the legality of any action taken or any matter decided by revenue courts subordinate to it.
9. While refuting aforesaid submission made by learned Additional Advocate General, Mr. G.D. Verma, learned Senior Counsel duly assisted .
by Mr. B.C. Verma, Advocate vehemently argued that a bare perusal of the Scheme suggests that it is a non-statutory Scheme and as such, it cannot be said to have all the characteristics of law, as argued by learned Additional Advocate General. Mr. Verma, learned Senior Counsel further argued that though perusal of the Scheme itself leaves no scope of doubt that the civil courts have the jurisdiction to entertain civil suit against the order passed by revenue authorities under the Scheme, if same has been passed without jurisdiction. Mr. Verma, learned Senior Counsel also placed reliance upon judgment rendered by Hon'ble Apex Court in Dhulabhai (supra) to contend that where there is no express exclusion of the jurisdiction of civil court in the Scheme or a Statute, there would be fundamental presumption under statutory interpretation that the civil courts have jurisdiction to decide all matters of civil nature. Mr. Verma, further argued that since in the case at hand, order dated 14.5.2007 passed by learned Deputy Commissioner came to be passed in exercise of revisionary power under Clause 9A of the Scheme, same rightly came to be laid challenge by way of Civil Suit in the competent court of law because, under Clause 9A of the Scheme, aforesaid authority had no occasion to order for resumption of land on the ground that grantee failed to break the land within a period of two years from the date of its allotment rather, action if any on account of aforesaid default made by the grantee ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 9 could be initiated in terms of provisions contained under Clause 11 of the Scheme, which prescribe certain prohibitions on transfer. Mr. Verma argued that the revisionary power, if any, under Clause 9A could be exercised by Commissioner itself or on the basis of application made by .
any person otherwise, that the allotment of land under the Scheme was made to a person who was not eligible/entitled for such allotment or allotment was wrong or any other ground but, definitely the order of resumption of land, on the ground that grantee failed to break the land within a period of two years from the date of its allotment, could not be passed by Deputy Commissioner while exercising power under Clause 9A of Scheme i.e. revision, as such, order passed by Deputy Commissioner being without jurisdiction rightly came to be laid challenge before civil court. Lastly Mr. Verma argued that though perusal of impugned order passed by Civil Judge clearly reveals that all contentions raised by parties to lis were dealt on merit by it, yet in the last, it proceeded to dismiss the suit on the ground of jurisdiction, which finding is totally illegal and contrary to law.
10. Before ascertaining correctness of submissions and counter-
submissions made by learned counsel for the parties vis-à-vis the reference made by learned Single Judge, this court deems it fit to take note of the Scheme, which is reproduced herein below, in its entirety:
"Government of Himachal Pradesh 'Revenue Department' No. 9-14/75-Revenue A. - The Governor, Himachal Pradesh, is pleased to make the following, special scheme for grant of Nautor land to landless persons in the State.::: Downloaded on - 12/05/2022 20:06:10 :::CIS 10
1. Short title and commencement.- (1) This scheme shall be called the Himachal Pradesh Grant of Nautor Land to Landless persons, other Eligible persons scheme, 1975.
(2) It shall come into force at once.
2. Definition.- In the scheme-
(a) Landless person means a person who holding no land for agricultural .
purposes, whether as an owner or a tenant, earns his livelihood principally on manual labour on land and intends to take the profession of agriculture and is capable of cultivating the land personally.
(b) other eligible persons' means persons who hold land less than one acre in the State of Himachal Pradesh as a landowner or a tenant and earns his livelihood principally on manual labour on land and intends to take the profession of agriculture and is capable of cultivating the land personally and includes those land-owners who were either rendered landless or whose holdings were reduced to less than one acre as a result of implementation of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. [Provided that notwithstanding any thing contained in this scheme, a person who hers completed training under the Trysem Programme and is certified as eligible by the Project Officer/A.D. Agency of the Distt. concerned for allotment of land for construction of a shop or other business premises shall also be deemed clause and land of the area sufficient for construction of a shop or other business premises, but not exceed 2 biswas as the case may be, may be granted to him by the S.P.O.(C) concerned."]
3. Application of Scheme.- The scheme shall apply to Government waste land outside the Reserved and Demarcated Protected Forest.
4. Survey of culturable land.- (1) A survey of culturable land in each estate shall be made immediately by the Tehsildar/Naib-Tehsildar concerned and plots of land in each estate which can be granted as nautor land to the landless persons, other eligible persons marked on the ground.
(2) A register of landless persons in each Patwar circle has already been maintained village-wise under the instructions issued by the State Government. These registers will be verified by the Tehsildars according to the instructions already issued by the Government in this behalf.
(3) In case of other eligible persons a register in each Patwar circle shall be maintained in form 'A' appended to this Scheme.
5. Grant of Nautor Land.- (1) Nautor Land upto I acre for the purpose of Agriculture/Horticulture shall be granted to a landless person on a simple application in the Revenue estate in which ordinarily resides or in a nearby revenue estate as far as possible in the following order: -
::: Downloaded on - 12/05/2022 20:06:10 :::CIS 11(i) in the revenue estate;
(ii) in the Patwar circle if no land is available in the Revenue estate;
(iii) in the Kanungo circle if no land is available in the Patwar circle;
(iv) in the Tehsil, if no land is available in the Kanungo circle.
[(2) The allotment of land to eligible persons under the scheme shall be made in the following order of preference.] .
(i) members of Scheduled castes/Scheduled Tribes, ex-servicemen, Freedom fighters and Ex-INA personnel,covered under the Government, of India scheme and also those freedom fighters who have been awarded commendation certificates' by the State Government;
(ii) landowners or tenants whose holdings as a result of implementation of section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 are reduced below one acre; and
(iii) to remaining eligible persons;
Provided that no land containing more than 40 trees of valuable species per acre shall be granted under this scheme, (3) If there are trees on the land granted under this scheme and the grantee is not in a position to pay the price of the trees at market rate, the trees shall be cleared by the Forest Department within a month from the date of grant of the land.
6. Delimitation of land.- The nautor land to be granted to a landless person or other eligible persons under, this scheme shall be delimited in his presence and also in the presence of the members of the Gram Panchayat as may be available at the time of delimitation.
7. Sanctioning Authority.- [The Sub-Divisional Officer (Civil) of the Sub- Division and the Tehsildar of the Tehsil in which the land is situated shall be the sanctioning authority for the purpose of this scheme. The sanction order of nautor land shall be made by the Tehsildar on the application and its operative partentered in the register to be maintained for the purpose in the Tehsil. Issue of Patta under the scheme will not be necessary.]
8. Nazarana and mode of its payment.- (1) The grant of nautor land under this scheme shall be made against payment of nazarana by: -
(a) a grantee belonging to Scheduled Tribes @ rupees five per bigha;
(b) a grantee belonging to Scheduled caste @ rupees twenty five per bigha;
(c) other grantees @ rupees fifty per bigha.
[(2) The payment of nazarana shall be in lump sum or in ten equal half yearly instalments. The possession of the land shall be given to the grantee immediately after the sanction of land. In case of payment in instalments, the first instalment can be paid within one year of the delivery of possession.] ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 12 (3) If the grantee fails to pay the total amount of nazarana within a period of five years, the same shall be recovered as arrear of land revenue.
9. There shall be no right of appeal against the grant of nautor land to a landless person or to other eligible persons under this scheme. [9A. Revision. - 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 such 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 in person or through a Revenue Officer subordinate to him and after giving an opportunity to the parties concerned, he may cancel the grant of land and make such other orders in connection therewith as he deems necessary in the circumstances of the case.]
10. Mutation.- The mutation of the land to be granted under this scheme to a landless person or to other eligible persons shall be attested immediately after the payment of nazarana by the grantee either in lump sum or on payment of 1st instalment of the nazarana as the case may be.
11. Restriction on transfer.- The grantee shall not transfer the land granted under this scheme to any person within a period of [20 years]from the date of taking over possession of the land by him. In the event of contravention of the provisions of this para the grant shall be liable to be resumed by the State Government and no further allotment of land should be made to him thereafter. [Similarly] if he fails to break up the land within a period of 2 years from the date of taking over of the possession the grant shall be liable to be resumed.
Provided that the land granted under this scheme shall not be subject to fragmentation by way of partition, transfer or by any other mean. The Revenue Officer shall record these conditions 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.
Provided the allottee may transfer the land by way of mortgage without possession in favour of Primary Agricultural Cooperative Credit Society, a Bank as defined in the H.P. 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, raising of crops,purchase of bullocks, seed and fertilizers etc. for bringing the land under cultivation.
12. No legal practitioner shall appear, plead or act on behalf of any party before any revenue officer in any case under this scheme."
::: Downloaded on - 12/05/2022 20:06:10 :::CIS 1311. Clause 9A of the Scheme provides for revision, in case of any discrepancy in allotment of Nautor land and Clause 11 prohibits transfer of land granted by way of Nautor, for a period of twenty years, but none of the clause bars jurisdiction of the Civil Courts.
.
12. Record reveals that after having received aforesaid proposition of law formulated by learned Single Judge, this court vide order dated 20.11.2018, called for original record to see from where Scheme has emanated. On 25.3.2019, learned Additional Advocate General, while placing on record communication dated 15.3.2019 received from the Additional Chief Secretary (Revenue) to the Government of Himachal Pradesh apprised this court that despite best efforts, their officers have not been able to trace out the original record pertaining to the Scheme.
Besides above, it was also claimed that record is 40 years old and efforts are being made to locate the same. However, this Court, granted further time specifically observing in the order that the Scheme is being implemented by the Courts as well as Government on the premise that it is statutory in character, as such, it is imperative to know how this Scheme originated.
13. On 11.6.2019, affidavit of Secretary (Revenue) to the Government of Himachal Pradesh came to be filed, which revealed that file bearing No. 9-14/75 (Rev.-A), wherein decision qua framing of the Scheme in the year 1977 was taken, stood consigned to record room of Himachal Pradesh Secretariat on 8.8.1981 under Category III.
14. Though, a bare perusal of the Scheme itself suggests that the same is non-statutory because, admittedly same never came to be ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 14 framed under any statute but even otherwise, factum with regard to its being non-statutory can be inferred from perusal of communication dated 21.1.1987 addressed by Secretary (Revenue) the Government of Himachal Pradesh to various revenue authorities in the State of Himachal .
Pradesh, which reads as under:
"No. Rev. 2A(3) 11/77 IMMEDIATE
Government of Himachal Pradesh
Revenue Department
From
1. The Secretary (Revenue) to the
Government of Himachal Pradesh.
To
1. The Divisional Commissioner Kangra at Dharamshala/ Mandi/Shimla.
2. The Settlement Officers Kangra at Dharamshala/Shimla-6.
3. The Director of Land Records, Himachal Pradesh, Shimla.
4. The Director Consolidation of Holdings, Himachal Pradesh, Shimla.
5. All the Deputy Commissioners in Himachal Pradesh.
6. All the Sub Divisional Officers (Civil) in Himachal Pradesh.
7. All the Tehsildars in Himachal Pradesh.
Dated Shimla-171002, the 21st January, 1987.
Subject:-Allotment of land to landless and other eligible persons-
Jurisdiction of Civil Courts to entertain suits arising therefrom. Sir, I am directed to say that at present land is being allotted to the landless or other eligible persons under the following three Schemes:-
1. The Himachal Pradesh Utilization of Surplus Area Scheme, 1975.
2. The Himachal Pradesh Village Common Land Vesting and Utilization Scheme,1975.
3. The Himachal Pradesh Grant of Land to Landless and Other Eligible Persons Scheme, 1975.
2. In this behalf, as you know, the first two Schemes are statutory schemes and have been framed under the Acts passed by the Himachal Pradesh State Legislature. However, the third, namely the Nautor Scheme is an independent one and does not derive sanction from any other law. You are also aware that these Acts contain a provision barring the jurisdiction of the Civil Courts. It is, therefore, implied that a dispute arising out of the allotment of land or cancellation thereof by the ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 15 competent authority is not subject to adjudication by the Civil Courts whose jurisdiction stands barred in the Acts. It has, however, been noted by the Government that cases are being taken to Civil Courts by the interested parties and the courts are entertaining them for decision totally disregarding the bar contained in the Acts. As you know, the very .
purpose of launching the programme of allotment of land is defeated once a case goes to the court since it takes a lot of time there and the person concerned who often not eligible for allotment of land, continues in possession of the land erroneously alloted to him.
3. It appears that the District Attorney or other Officers are not well posted of this provision do not often raise this point before the Courts at the time of admission of the suits. It should be brought home to all concerned that the civil Courts have no jurisdiction to try the cases arising out of the H.P. Ceiling on Land Holdings Act, 1972, or the H.P. Village Common Lands Vesting and Utilization Act, 1974 and those cases where the land has been allotted under the two schemes namely The Himachal Pradesh Utilization of Surplus Area Scheme and the Himachal Pradesh Village Common Land Vesting and Utilization Scheme. A copy of these schemes should be made available to all Law Officers who are concerned with the defence of the cases arising out of the above two Schemes and they should be instructed to take the plea of jurisdiction in the Courts invariably. Where however the courts still entertain the cases, an appeal should be filed in the next court against this decision until the issue has been finally settled once for all.
4. As regards the cases of allotment of land under the third scheme, namely the Himachal Pradesh Grant of Land to Landless and Other Eligible Persons Scheme, suitable arrangements are being made to strengthen the hands of the authorities concerned in this behalf also.
Please acknowledge receipt.
Yours faithfully, sd/- Secretary (Revenue) to the Government of Himachal Pradesh.
(Copy with 10 spare copies to the Superintendent Incharge, allotment of land to landless and other eligible persons in Revenue Branch-B, for record)."
::: Downloaded on - 12/05/2022 20:06:10 :::CIS 1615. Perusal of aforesaid communication clearly reveals that two schemes i.e. the Himachal Pradesh Utilization of Surplus Area Scheme, 1975 and the Himachal Pradesh Village Common Land Vesting and Utilization Scheme 1975 were framed under the Acts passed by Himachal .
Pradesh State Legislature, whereas, the Himachal Pradesh Grant of Land to Landless and Other Eligible Persons Scheme, 1975 is an independent one and does not derive sanction from any law. In the aforesaid communication, authority concerned, while directing District Attorneys and other officers to raise question of jurisdiction before civil courts in the cases arising out of aforesaid Schemes, has categorically concluded that for the management of cases of allotment of land under third Scheme, suitable arrangements are being made to strengthen the hands of the authorities concerned.
16. At this juncture, it would be apt to take note of provisions contained under Art. 162 of the Constitution of India, which reads as under:
"162. Extent of executive power of State:
Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws;
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof."::: Downloaded on - 12/05/2022 20:06:10 :::CIS 17
17. Ms. Ritta Goswami, learned Additional Advocate General, while placing reliance upon aforesaid provision of law, strenuously argued that the power to frame Rules 1968 has been derived by the State under Art.
162 of the Constitution of India and thereafter the 1975 Scheme has been .
framed under the Rules, 1968, but there is no material available on record to substantiate aforesaid claim of hers. Mere availability of executive power of State in terms of Art. 162 is not sufficient to conclude that Nautor Rules, 1968 and thereafter the Scheme thereunder came to be framed by the Executive in exercise of power under Art. 162 of the Constitution of India. Bare perusal of the Scheme nowhere reveals that same ever came to be framed by the Executive in exercise of the power under Art. 162.
Otherwise also, bare perusal of provisions contained Art. 162 though suggests that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws, provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. Once, Legislature in its wisdom under an enactment/statute proceeded to frame two statutory Schemes, as has been taken herein above, i.e. the Himachal Pradesh Utilisation of Surplus Area Scheme, 1975 and the Himachal Pradesh Village Common Land Vesting and Utilisation Scheme, 1975, as is evident from the letter extracted herein above, it cannot be accepted at this stage that the third scheme i.e. Nautor Scheme, 1975 which is subject matter of present ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 18 controversy, has all the characteristics of law and can be termed as a 'statutory scheme'.
18. Hence, in view of the aforesaid finding, we have no hesitation in concluding that the Nautor Scheme 1975 is a non-statutory Scheme and .
there is no provision, whereby jurisdiction of civil court stands excluded expressly or by necessary implication. Even if, for the sake of arguments, it is presumed that the aforesaid Scheme is statutory, even then jurisdiction of civil courts cannot be excluded, even if the same is not specifically excluded in the Scheme itself. In this regard, it is necessary to take note of Section 9 CPC which reads as under:
"9. Courts to try all civil suits unless barred The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.1
Explanation: [I] A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.2
[Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]"
19. Bare perusal of aforesaid provision clearly reveals that the courts shall have jurisdiction to try all suits of civil nature, except in those cases, where their jurisdiction is expressly or impliedly barred.
20. Reliance is placed upon decision of Hon'ble Privy Council in Secretary of State v. Mask and Company, AIR 1940 PC 105, wherein it has been categorically held that the exclusion of jurisdiction of civil court is not to be readily inferred but such exclusion either must be explicitly ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 19 expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine the cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental .
principles of judicial procedure.
21. Reference is also made to judgment of Hon'ble Apex Court in Robust Hotels (P) Ltd. v. EIH Ltd. (2017) 1 SCC 622, wherein Hon'ble Apex Court has held that the jurisdiction of the Civil Court is plenary in nature, unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits. Hon'ble Apex Court held as under: r "31. The scope and ambit of Section 34 of Sarfaesi Act, 2002 have been considered by this Court in several cases. It is sufficient to refer the judgment of this Court in Nahar Industrial Enterprises Limited Versus Hong Kong & Shanghai Banking Corporation (2009) 8 SCC 646. This Court held that the jurisdiction of the Civil Court is plenary in nature, unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits."
22. Constitution Bench of Hon'ble Apex Court in Dhulabhai v. State of M.P. AIR 1969 SC 78, specifically discussed ambit of S.9 CPC and laid down following principles:
"32. Neither of the two cases of Firm of Illuri Subayya(1) or Kamla Mills(2) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows :-
(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 20 those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil .
court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for. the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
23. If the aforesaid principles culled out by Hon'ble Apex Court are read in their entirety, it can be safely inferred that ordinarily civil court has jurisdiction to decide all matters of civil nature, save and except where its jurisdiction is expressly or impliedly barred.
24. In Unichem Laboratories v. Rani Devi (2017) 13 SCC 509, Hon'ble Apex Court reiterated that the exclusion of jurisdiction of the Civil Court is not to be readily inferred and such exclusion has either to be ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 21 explicitly expressed or clearly implied and burden to prove such exclusion lies on party, which raises such contention. Hon'ble Apex Court held as under:
"23. 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". It is a principle by no means to be whittled down and has been referred to as a "fundamental rule". As a necessary corollary of this rule, provisions excluding jurisdiction of Civil Courts are required to be construed strictly. In other words, it is trite rule of interpretation that existence of jurisdiction in Civil Courts to decide questions of civil nature is a general rule whereas the exclusion is an exception. The burden is, therefore, on the party who raises such a contention to prove such exclusion. (See Interpretation of Statutes by G.P. Singh, 12th Edition, pages 747-748). It is not so in this case.
24. It is for these reasons, we are of the view that both the Courts below were right in holding that the suit is not hit by rigors of Section 13 of the Act."
25. Hon'ble Apex Court in Dhruv Green Field v. Hukam Singh (2002) 6 SCC 416, held that the bar against jurisdiction of civil court is not to be inferred unless statute provides for alternative and efficacious remedy.
Most importantly, in the aforesaid judgment, Hon'ble Apex Court held that jurisdiction of civil court would be retained despite express or implied bar, if the order or action complained of is a nullity. Apex Court held as under:
"8. The jurisdiction of the courts to try all suits of civil nature is very expansive as is evident from the plain language of Section 9 of the Code of Civil Procedure.* This is because of the principle 'ubi' jus ibi remedium. It is only where cognizance of a specified type of suit is barred by a statute either expressly or impliedly that the jurisdiction of the civil court would be ousted to entertain such ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 22 a suit. The general principle is that a statute excluding the jurisdiction of civil courts should be construed strictly.
9. The question when and in what circumstances, can a suit of civil nature be said to be barred by a special statute, is no longer res Integra. Mis. Kamala Mills Ltd v. State of Bombay, AIR .
(1965) SC 1942, a seven-judge Bench of this Court laid down the principle thus:
"The question about the exclusion of the jurisdiction of civil courts either expressly or by necessary implication must be considered, in every case, in the light of the words used in the statutory provision on which the plea is rested, the scheme of the relevant provisions, their object and their purpose.
Whenever a plea is raised before a civil court that its jurisdiction is excluded either expressly or be necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. Where the exclusion of the civil court's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of remedies provided for by it may be relevant, it cannot, however, be decisive.
But when exclusion is pleaded as a matter of necessary implication. Such considerations would be very important, and in conceivable circumstances, might even become decisive. If a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it is pertinent to enquire whether remedies, normally associated with actions in civil courts are prescribed by the said statute or not"
That judgment was followed in Lala Ram Swarup and Ors. v. Shikar Chand and Anr., [1966] 2 SCR 553. There Gajendragadkar, CJ. speaking for a Constitution Bench of this Court formulated the following tests:
::: Downloaded on - 12/05/2022 20:06:10 :::CIS 23The two tests, which are often considered relevant in dealing with the question about the exclusion of civil courts' jurisdiction are (a) whether the special statute which excludes such jurisdiction has used clear and unambiguous wounds .
indicating that intention, and (b) does that statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions. Applying these tests the inference is inescapable that the jurisdiction of the civil courts is intended to be excluded.
The bar excluding the jurisdiction of civil courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity."
10. In the light of the above discussion, the following principles may be re- stated:
(1) If there is express provision in any Special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded.
(2) If there is no express provision in the Act but an examination of the provisions contained therein lead to a conclusion in regard to exclusion of jurisdiction of a civil court, the Court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred, If however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of civil court cannot be inferred.
(3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity."
26. Now being guided by aforesaid law laid down on the subject by Hon'ble Apex Court and provisions contained under the Scheme, we would make an attempt to evaluate the findings of learned Single Judge while passing judgment in Duglu Ram (supra), wherein, in para-9 following observations /findings have been returned:
::: Downloaded on - 12/05/2022 20:06:10 :::CIS 24"9. The matter can be examined from another angle. Although there is no such plea in the pleadings of the parties and no issue has been framed but the fact remains that admittedly the impugned order of the Collector could be challenged by way of revision under relevant rules. The same not having been done .
and the present suit having been filed. It was liable to be dismissed on that score alone. It is settled law that where a specific statute or rules provide for a remedy by way of appeal or revision, etc. then unless that remedy is exhausted, the party cannot approach the Civil court except in cases where the impugned action is without jurisdiction or sufficient cause being shown that the remedy thus provided could not be availed of. Neither of the two situations exist in the present case "
27. In the aforesaid judgment, learned Single Judge, while holding that the impugned order of collector could be laid challenge by way of revision under relevant rules, also ruled that where a specific statute or rule provides for remedy by way of appeal or revision, then unless that remedy is exhausted the party cannot approach civil court except in case, where action is without jurisdiction or sufficient cause is shown that the remedy thus provided could not be availed of.
28. Having found aforesaid finding returned by learned Single Judge in Duglu Ram (supra) to be contrary to very essence of the Scheme and law laid down by Hon'ble Apex Court with regard to exclusion of jurisdiction of civil court in terms of S. 9 CPC, learned Single Judge has made reference to this court as detailed herein above.
29. Facts as detailed in Duglu Ram (supra) reveal that in that case predecessor-in-interest of the appellants was granted land being a landless lady under the Scheme however, the grant came to be cancelled vide order dated 16.8.1982 passed by the Collector Kullu, on the ground ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 25 that the deceased grantee failed to break the land for cultivation within a period of two years of date of grant. Being aggrieved with the aforesaid order passed by the collector, legal representatives of grantee filed civil suit claiming that the order of the Collector is without jurisdiction.
.
However, suit as well as appeal filed thereafter by legal representatives of grantee were dismissed. Being aggrieved with the dismissal of appeal by first appellate court, legal representatives of grantee filed Regular Second Appeal in that case i.e. Duglu Ram (supra), wherein this court held that the order passed by the Collector could be assailed by way of revision under the relevant rules. Court further held that where statutory rules provide for remedy by way of revision or appeal, party cannot approach civil court except in case where order is without jurisdiction.
30. No doubt, the Scheme, reproduced supra, provides for remedy of revision under Clause 9A, which empowers a commissioner to take suo motu action or on an application if any made by any person that the allotment of the land under the Scheme was made to a person who was not entitled or eligible for such allotment or allotment was wrong or on any other grounds. If the commissioner is satisfied that the allotment has been made to a person, who is not eligible, he can call for the records of case and after making enquiries, can proceed to pass order, if required, for cancellation of grant of land.
31. Though perusal of the Scheme nowhere provides for further appeal /revision, but the Rules i.e. Himachal Pradesh Nautor Land Rules, 1968, definitely provide for appeal, review and revision under Ss. 28, 29 and 30, respectively, which read as under:
::: Downloaded on - 12/05/2022 20:06:10 :::CIS 26"28. An appeal from the order of the S.D O. (C) under rule 16 shall lie to the Deputy Commissioner within 60 days from the date of the order. A further appeal from the appellate order of the Deputy Commissioner shall lie to the Commissioner within 60 days from the date of the order.
.
In the case of original grant made by the Deputy Commissioner, an appeal from his order shall lie to the Commissioner within 60 days from the date of order and a second appeal to the Financial Commissioner within 90 days from the date of order; Provided that no second appeal shall lie when the original order is confirmed on first appeal.
29. Review. - The Financial Commissioner or the Commissioner or the Deputy Commissioner or the Sub-Divisional Officer (C) may either of his own motion or on application of any party interested review, and modify, reverse or confirm any order passed by himself or any of his predecessors in office, provided as follows: -
(a) when the sub-Divisional Officer (C) thinks it necessary to review any order, he shall first obtain the sanction of the Deputy Commissioner;
(b) when the Commissioner or the Deputy Commissioner think it necessary to review any order which he has not himself passed, he shall first obtain the sanction of the Financial Commissioner in the case of the Commissioner and the Commissioner in the case of the Deputy Commissioner;
(c) the application for review of an order shall not be entertained unless it is mode within 90 days from the passing of the order and unless the applicant satisfied the Financial Commissioner or the Commissioner or the Deputy Commissioner or the Sub-
Divisional Officer (Civil) as the case may be, that he had sufficient cause for not making the application within that period;
(d) an order shall not be modified or reversed in review unless reasonable notice has been given to the parties effected thereby to appear and be heard in support of the order;.
(e) an order against which an appeal has been preferred shall not be reviewed.
::: Downloaded on - 12/05/2022 20:06:10 :::CIS 2730. Revision. - (1) The Financial Commissioner may at any time call for the record of any case pending before, or disposed off by any officer subordinate to him.
(2) The Commissioner may at any time call for the record of any case pending before, or disposed off by any officer subordinate to him.
.
(3) If, in any case, in which the Commissioner has called for the record, he is of the opinion that the proceeding taken order made should be modified or reversed, be shall report the case with his opinion thereon for the orders of the Financial Commissioner. (4) The Financial Commissioner may in any case called for by himself under sub-rule (i) or reported to him under sub-rule [iii) pass such order as he thinks fit.
Provided that he shall not under this rule pass any order reversing or modifying any proceedings or orders of the subordinate Revenue Officer without giving the parties concerned an opportunity of being heard."
32. An order of grant of Patta under Nautor rules, made by Sub Divisional Officer (Civil) under rule 16 can be laid challenge before Deputy Commissioner but if the grant is made by Deputy Commissioner, appeal will lie to the Commissioner within 60 days of order and thereafter to the Financial Commissioner within 90 days from the date of order.
33. Rule 29 enables aforesaid authorities to review their own orders on their own motion or on an application of any party interested in review.
34. Rule 30 enables Financial Commissioner and Commissioner to call for records of any case pending before or disposed of by any officer subordinate to them, if they are of the opinion that the order made should be modified or reversed.
35. Rule 25 empowers Deputy Commissioner to pass order regarding resumption of grant. Deputy Commissioner on receipt of report submitted ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 28 to him under sub-rule (b) of Section 24 can order for resumption, if he is satisfied that the grant was not made in accordance with law or person to whom grant is made was not eligible under the Scheme. But such power definitely cannot be exercised under Clause 9A of the Scheme, which .
provides for revision.
36. In the case at hand, Deputy Commissioner exercising power under Clause 9A of the Scheme, proceeded to cancel the grant made in favour of late Dina Nath, whose legal representatives subsequently sold that land to the appellant herein-Lachman, on the ground that late Dina Nath or his legal representatives failed to break the land within a period of two years from the date of grant. Though, Deputy Commissioner has /had power to cancel the grant on account of aforesaid violation but not under Clause 9A of the scheme, rather such power could be exercised under Rule 25 of the Rules, provided that he was satisfied with report called in terms of sub-
rule (b) of Section 24 from the Sub Divisional Officer (Civil) that the grantee failed to put the land granted to him to use, within a period of two years from the date of such grant and no reasons have been shown for not putting such land to use. Provisions of said rule further enable Deputy Commissioner to extend the time to the grantee to put the land to use, if he is satisfied that for the reasons beyond the control of grantee, he/she was unable to put the land to use within the stipulated time.
37. Though, for the reasons stated herein above, the order passed by Deputy Commissioner exercising power under Clause 9A of the Scheme appears to be without jurisdiction but even otherwise, careful perusal of the Scheme as well as Rules nowhere suggests that there is any ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 29 provision whereby jurisdiction of civil court has been excluded expressly or impliedly. Mere provision of appeal and revision if any under the Scheme or the Rules, may not be sufficient to exclude jurisdiction of the civil courts, because in any situations, where orders passed by authorities .
under aforesaid Scheme and Rules may be without jurisdiction, in that eventuality, aggrieved party may not have any option but to approach civil court by way of a civil suit.
38. Otherwise also, as has been repeatedly held by Apex Court, exclusion of jurisdiction of civil court is not to be readily inferred unless there is an express bar on the jurisdiction of the civil courts. Apex Court in Dhulabhai (supra) has held that where statute gives finality to order of special tribunal, civil courts' jurisdiction must be held to be excluded if appropriate remedy to do what normally a civil court would do in such suit, exists. However, it does not exclude jurisdiction of civil courts, where provisions of a peculiar Act have not been complied with as per fundamental principles of judicial procedure.
39. Though, learned Additional Advocate General has placed heavy reliance upon aforesaid judgment, but there is specific reference to the statutory tribunal. Though in the case at hand, exercise of power is by the authorities appointed under law, but under a non-statutory Scheme and as such, jurisdiction of civil courts cannot be held to be excluded.
Adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment, becomes necessary and the ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 30 result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the .
tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not? Where there is no express bar but statutory provisions imply exclusion of jurisdiction, yet exclusion of jurisdiction of civil courts cannot be inferred unless statute provides an adequate and efficacious alternative remedy.
Otherwise also jurisdiction of civil courts would be retained if order or action complained of is nullity.
40. Otherwise also, it is well settled that the existence of jurisdiction of civil courts to decide civil dispute is a general rule, where there is exception, exclusion is either to be expressly expressed or clearly implied.
Aforesaid principle by no means can be allowed to be whittled down and as such, has been rightly referred to as a fundamental rule by learned Single Judge while making reference to this court.
41. Hon'ble Apex Court in Nahar Industrial Enterprises Limited v.
Hong Kong & Shanghai Banking Corpn. (2009) 8 SCC 646, while dealing with question of exclusion of jurisdiction of civil courts has categorically held that the jurisdiction of a civil court is plenary in nature.
Unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits.
42. By now it is well settled that jurisdiction of civil courts to try suits of civil nature, is very extensive. It is only when, there is any provision in the ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 31 statute, which excludes jurisdiction, that party can have exception to the rule that all suits shall be tried by civil courts, courts would lean in favour of construction which would uphold jurisdiction of civil courts. Even in case, where statute causes finality to order passed by tribunal, civil court .
has yet power to see whether tribunal has power to grant relief, which civil court would normally grant in suit filed before it. If the answer is in negative, exclusion of jurisdiction of civil courts would not be readily inferred.
43. In the case at hand, the Scheme as well as the Rules in question have no backing/sanction of law, as has been fairly admitted by the authorities in the letter reproduced herein above and as such, cannot be equated with other Schemes/Laws framed under some Act by the State Legislature. Otherwise also, in other Schemes/Rules, viz. Himachal Pradesh Utilisation of Surplus Area, 1975 and the Himachal Pradesh Village Common Land Vesting and Utilisation Scheme, 1975, there is specific bar on the jurisdiction of civil courts. However, in the case at hand, as has been discussed in detail, there is no provision contained under the Scheme/Rules, which expressly or impliedly bars the jurisdiction of civil courts.
44. Though, Mr. G.D. Verma, learned Senior Advocate vehemently argued that the order passed by Deputy Commissioner under Clause 9A of the Scheme is without jurisdiction and as such, could be laid challenge in a civil court but we purposely restrain ourselves from dealing with the aforesaid argument of Mr. Verma, learned Senior Counsel in these proceedings because, any finding by this court on the question supra, ::: Downloaded on - 12/05/2022 20:06:10 :::CIS 32 may have a bearing upon the merits of the FAO itself filed by appellant Lachman before learned Single Judge, which is yet to be decided on its own merit.
45. Consequently in view of the detailed discussion made and the law .
taken note of above, we hold that the 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. the Himachal Pradesh Utilisation of Surplus Area Scheme, 1975 and the Himachal Pradesh Village Common Land Vesting and Utilisation Scheme, 1975, because both have sanction of law/Act passed by State Legislature.
46. The reference is accordingly answered.
Registry to place the file before learned Single Judge.
(Mohammad Rafiq) Chief Justice (Sandeep Sharma) Judge May 12, 2022 (Vikrant) ::: Downloaded on - 12/05/2022 20:06:10 :::CIS