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2015 DIGILAW 375 (UTT)

SURAJ SHARMA v. STATE OF UTTARAKHAND

2015-07-29

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J (Oral) Present petition is preferred stating therein that 43 acres of land, village Raiwala, Dehradun belonging to Mr. B.B.Sharma was declared as surplus land, therefore, same should be allotted to the petitioners, under Section 27 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, who are landless labourers, residing in village Raiwala District Dehradun. 2. Section 27 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 reads as under: “Section 27 - Settlement of surplus land - (1) The State Government shall settle out of the surplus land in a village in which no land is available for community purposes or in which the land as available is less than 15 acres with the [Gram Sabha] of that village so, however, that the total land in the village available for community purposes after such settlement does not exceed 15 acres. The land so settled with the1[Gram Sabha] shall be used for planting trees, growing fodder or for such other community purposes, as may be prescribed. [(2) The State Government may either settle any surplus land in accordance with sub-section (1) or sub-section (3) or use or permit its use in accordance with Section 25 or manage or otherwise deal with it in such manner as it thinks fit.] [(3) Any remaining surplus land shall be settled by the Collector in accordance with the order of preference and subject to the limits, specified respectively in 4[sub-sections (1) and (3)] of Section 198 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. [(4) The Commissioner may of his own motion and shall, on the application of any aggrieved person enquire into such settlement and if he is satisfied that the settlement is irregular he may after notice to the person in whose favour such settlement is made to show cause- (i) cancel the settlement and the lease, if any, and thereupon, notwithstanding anything contained in any other law or in any instrument, the rights, title and interest of the person in whose favour such settlement was made or lease executed or any person claiming through him in such land shall cease, and such land shall revert to the State Government; and (ii) direct that every person holding or retaining possession thereof may be evicted, and may for that purpose use or cause to be used such force as may be necessary. (5) Every order passed by the Commissioner under sub-section (4) shall be final. (6) The Commissioner acting of his own motion under subsection (4) may issue notice, and an application under that sub-section may be made,— [(a) in the case of any settlement made or lease granted before November 10, 1980, before the expiry of a period of 8[seven years] from the said date; and (b) in the case of any settlement made or lease granted on or after the said date, before the expiry of a period of 9[five years from the date of such settlement or lease or up to November 10, 1987, whichever be later]. [(6-A) Where any surplus land has been settled by the Collector under sub-section (3), and any person other than the person in whose favour such settlement was made is in occupation of such land in contravention of the provisions of this Act, the Collector may, of his own motion and shall on the application of the person in whose favour such settlement was made, put him in possession of such land and may for that purpose use or cause to be used such force as he considers necessary. (6-B) Where any person, after being evicted under this section, reoccupies the land or any part thereof without lawful authority, he shall be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with fine which may extend to three thousand rupees : Provided that the Court convicting the accused may while passing the sentence direct that the whole or such portion of the fine that may be recovered as the Court considers proper, be paid to the person in whose favour such settlement was made as damages for use and occupation. (6-C) Where in any proceeding under sub-section (6-B), the Court at any stage after cognizance of the case has been taken is satisfied by affidavit or otherwise- (a) that the accused is in occupation of the land to which such proceeding relates, in contravention of the provisions of the Act; and (b) that the person in whose favour such settlement was made is entitled to the possession of such land; the Court may summarily evict the accused from such land pending the final determination of the case and may put the person in whose favour such settlement was made in possession of such land. (6-D) Where in any such proceeding, the accused is convicted the interim order passed under sub-section (6-C) shall be confirmed by the Court. (6-E) Where in any such proceedings the accused is acquitted or discharged and the Court is satisfied that the person so acquitted or discharged is entitled to be put back in possession over such land, the Court shall, on the application of such person direct that delivery of possession be made to him. (6-F) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under sub-section (6-B) shall be cognizable and non-bailable and may be tried summarily. (6-F) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under sub-section (6-B) shall be cognizable and non-bailable and may be tried summarily. (6-G) For the purpose of speedy trial of offences under this section, the State Government may, in consultation with the High Court, by notification/constitute, special courts consisting of an officer not below the rank of Sub-Divisional Magistrate, which shall, subject to the provisions of the Code of Criminal Procedure, 1973, exercise in relation to such offences the powers of a Judicial Magistrate of the first class.] (7) The State Government may, [by a general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all surplus land situate in a circle which could not be settled under the provisions of this Act, shall vest in the 1[Gram Sabha] concerned, and the provisions of Section 117 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, shall mutatis mutandis apply in relation to such vesting.” 3. As per sub-Section (1) of Section 27 of the Act, surplus land, first of all, has to be handed over to Gram Sabha for the public community purposes. If Gram Sabha is having land for the public community purposes measuring 15 acres, then as per sub-Section (2) of Section 27 of the Act, surplus land has to be used for public purposes as provided under Section 25 of the Act. If any land remains, after fulfilling the object of sub-Sections (1) and (2) of Section 27 of the Act, then such land may be available for allotment under Section 198 of the U.P. Z.A. & L.R Act. 4. It is nowhere stated in the writ petition that Gram Sabha of village Raiwala is having 15 acres of land for public community purposes, as required under Section 27 (1) of the Act nor it is stated that surplus land, in question, is not required for public purposes, as provided sub-Section (2) of Section 27 read with under Section 25 of the Act. It is also not mentioned in the writ petition as to whether applications were invited under Section 198 of the U.P. Z.A. & L.R. Act for allotment of land nor it is mentioned that petitioners have ever applied under Section 198 of the U.P. Z.A. & L.R. Act, therefore, in my firm opinion, petitioners have absolutely no case. 5. There is another aspect of the matter. Writ of Mandamus can be issued only to enforce legal rights already existing in favour of the petitioner or commanding the authorities to do something, which they are supposed to do under legal obligation, has held by Hon’ble Apex Court in the case of Rai Shivendra Bahadur Vs. Governing Body of the Nalanda College reported in 1962 (Supp.) (2) SCR 144, later on affirmed by the Constitutional Bench of Hon’ble Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1 . 6. Since both the petitioners failed to demonstrate their legal rights to get the land allotted, therefore, no Mandamus seems to be justified in favour of the petitioners. Consequently, writ petition fails and is hereby dismissed in limine. 7. CLMA No. 8651 of 2015 also stands disposed of accordingly.