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2016 DIGILAW 359 (UTT)

Rajendra Prasad v. Executive Engineer

2016-07-19

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. Appellant is the writ petitioner. Petitioner had land, which is displaced in connection with the construction of the Tehri Dam. On 26.03.2004, he was allotted a residential plot no. 3, measuring 200 square meters. Physical possession was handed over on 13.12.2004 and he is in possession thereof. Next, he relies on Government Order dated 28.03.2003. The translated version of the same, which is handed over by the learned counsel for the appellant, reads as follows: “Number 62/Nau-1-Si/ti Ba pa/2003 From O.P. Arya Principal Secretary, Uttaranchal Government To Director Rehabilitation Tehri Dam Project New Tehri District Magistrate Tehri/Dehradun/Haridwar Sinchai Vibhag Dated Dehradun March, 28, 2003 Sub:- In respect of Grant of Bhumidhari rights to Tehri Dam Oustees. Sir, On the above subject as per the GO of Government of Uttar Pradesh no. 540-sakh/79/23-Si-3-18s/78(85) dated 4.4.1979 provision was made to give government land to tehri dam Oustees for rehabilitation on 99 yr lease. Accordingly Tehri outstees have been allotted at different places, is on a lease of 99 yrs. After consideration on this superceding the above GO Governor is pleased to grant bhumidhari rights to Tehri Dam Oustees on the allotted government land (excluding forest land). Accordingly tehri oustees who have been allotted land on lease be given bhumidhari rights and in revenue records in place of Lease bhumidhari be recorded. Please amend the revenue records land necessary action be intimated to the government at the earliest. Bhavdiya O.P. Arya Principal Secretary” 2. Petitioner made an application for giving bhumidhari rights and he made a representation Annexure No. 4. On the complaint that his case was not being considered, he approached the Writ Court seeking the following prayer: “I. A writ, order or direction in the nature of mandamus commanding respondent no. 1 & 2 to grant bhumidhari rights to petitioner forthwith.” 3. The learned Single Judge dismissed the writ petition, noting that since residential plot was allotted to the petitioner as per paper no. 14 of the paper book, therefore, residential plot cannot be directed to be treated as bhumidhari property. Though it is stated in the judgment of the learned Single Judge that perusal of certificate would reveal that no agricultural plot is allotted to the petitioner and a residential plot is allotted, the learned counsel for the appellant very fairly would submit that the appellant was, in fact, allotted an agricultural land also. 4. Though it is stated in the judgment of the learned Single Judge that perusal of certificate would reveal that no agricultural plot is allotted to the petitioner and a residential plot is allotted, the learned counsel for the appellant very fairly would submit that the appellant was, in fact, allotted an agricultural land also. 4. When the matter came in appeal, we thought that we should be assisted by Amicus Curiae. Accordingly, we appointed Mr. Sharad Sharma, learned Senior Counsel. 5. We heard Mr. Pradeep Kumar Chauhan, learned counsel for the appellant, Mr. Sharad Sharma, learned Amicus Curiae and also Mr. N.S. Pundir, Brief Holder for the State of Uttarakhand. 6. Though, by order dated 09.10.2014, direction was given to file counter affidavit, it is true that no counter affidavit was filed in the matter. 7. Apparently, the basis of the writ petition is the right, which the appellant perceives in him on the basis of the Government Order, which we have extracted hereinbefore. The learned Amicus Curiae would, in fact, point out that on a proper construction of the said order, appellant may not be in a position to advance his case. According to him, the order only provides that those Tehri Dam oustees, who were allotted Government land, excluding Forest land, on the basis of the order dated 04.04.1979, will be given bhumidhari rights and in revenue records, in place of lease, bhumidhari rights be recorded. In fact, learned Amicus Curiae would also submit that the matter is governed by the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. In fact, he made reference to Section 144. 8. Learned counsel for the appellant, on the other hand, would, in fact, point out that it is in respect of land covered by Section 143 that Section 144 would apply. On a construction of the Government Order relied on by the appellant dated 28.03.2003, it appears to refer to those oustees, who had been given land earlier. The appellant was given land on 13.12.2004 that is after the Government Order dated 28.03.2003. Therefore, the appellant does not appear to come within the scope of the said order. Appellant is seeking benefit of Government Order. The appellant was given land on 13.12.2004 that is after the Government Order dated 28.03.2003. Therefore, the appellant does not appear to come within the scope of the said order. Appellant is seeking benefit of Government Order. Even proceeding on the basis that this Government Order is capable of giving right of a sort the appellant is seeking, namely, converting 99 years lease, which the appellant has been given in respect of the residential plot, into bhumidari with right to transfer within the meaning of Section 129 of the Act, on the terms of the order, the appellant would not come within the scope of the order. Appellant has a case that similarly situated persons have been given the bhumidari rights. If at all any right can flow to the appellant, it must flow from the terms of the order. In such circumstances, there is no merit in the appeal and it is liable to be dismissed. 9. There is reference to another order, which is mentioned by the learned Amicus Curiae, of the year 2011, which supersedes the order dated 28.03.2003. In fact, learned Amicus Curiae would point out that it doesn’t exactly supersede; but, it only lifts an embargo on selling of the land after ten years. That is not the subject matter of the writ petition and we do not wish to pronounce anything on the same. 10. The Appeal will stand dismissed. No order as to costs.