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2017 DIGILAW 496 (UTT)

Ashok Bansal v. State of Uttarakhand

2017-09-13

SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. 1. The present petitioners are the purchasers of the property, in question, from the predecessors of the petitioners, i.e. respondent Nos. 4 to 7, they have challenged the order passed by the Collector dated 22nd August, 2007, purportedly to have been passed, while exercising the powers under Section 219 of the Land Revenue Act, which was registered as Revision No. 5 of 2005-06. 2. Brief facts of the case are that the predecessors of the petitioners had moved an application in relation to khasra No. 337-Ka, having an area of 0.1820 hectares, by invoking the provisions contained under Section 33 read with Section 39 of the Act, which was registered as Case No. 9 of 2004-05. The Assistant Collector, vide its order dated 28th March, 2006, has allowed the application and thereby, it has been directed that the revenue records may be corrected and Sudhir Kumar and others to be recorded against the land, in question. In accordance with the findings recorded by the order dated 28th March, 2006, passed by the Assistant Collector, the basis of passing of the order was the joint inspection report which shows that the officers of the Forest Department, as well as revenue department have participated on the date when the inspection was conducted on 18th February, 2006, and the joint inspection report, consequent thereto, was submitted on 13th March, 2006, which has taken as to be the basis for recording the name of the predecessors of the petitioners on the ground holding thereof that the land lying in khasra No. 337 in Mauja Kolhupani, is a land which is outside the area of forest. 3. After passing of this order, the contention of the petitioner is that the respondents Nos. 4 to 7 sold the property to them by virtue of registered sale deed dated 26th May, 2006. Prior to the sale, it would not be out of context to say that the predecessors respondent Nos. 4 to 7 had filed an application under Section 143 of the Act seeking conversion of the user of the land which was registered as Case No. 30 of 2005-06 and the same was allowed and the declaration under Section 143 was made by the order dated 22nd May, 2006, this order has not been challenged as per law, and is intact till date. 4. 4. Neither the sale deed nor the order dated 28th March, 2006 or the order dated 22nd May, 2006 granting conversion was put to challenge by any person who contends himself to be aggrieved by it till ultimately a complaint was filed by one Mr. Vinod Chauhan, Secretary, Uttarakhand Congress Committee, which was addressed to the Secretary, Forest. Taking cognizance of this letter of the Congress Leader, the Secretary, Forest, vide its communication of the like date, i.e. 8th June, 2006, referred the compliant submitted by Mr. Vinod Chahuhan, Secretary, Congress Committee, had prayed for taking an appropriate action after conducting an inquiry. This letter was forwarded to the District Magistrate as well as to the Chief Conservator of Forest. Taking cognizance to this letter of dated 8th June, 2006, written by the Secretary, Forest and Environment, The Divisional Forest Officer has taken cognizance and written letter to the Collector on 14th June, 2006. Though this letter reflects as if it has been submitted in the Case No. 9 of 2004-05, which stood decided by the order dated 28th March, 2006, i.e. Case No. 9 of 2004-05 as it was registered before the Assistant Collector. On this letter, the Collector has passed an interim order, whereby, he has summoned the records of the Assistant Collector and stayed the operation of the order dated 28th March, 2006. 5. The contention of the learned counsel for the respondents is that this letter of Divisional Forest Officer would be treated as to be revision under Section 219 of the Land Revenue Act, the reason being that Land Revenue Act contemplates suo moto action and thus only a source of information is necessary, may it be by whatsoever means for the purpose of initiating the proceedings under the Act. 6. 6. Had it been confined treating the letter of the Secretary, Forest and Environment dated 8th June, 2006, as to be the source of information for taking suo moto action, this Court might have accepted the preposition, but looking to the record pertaining to the communication made thereafter on 17th June, 2006 and 27th June, 2006, it shows that it was monitored by the political dictates who were ensuring that an action on the basis of complaint dated 8th June, 2006, filed by the Secretary, Congress Party is brought to a logical end and that is why subsequently, based on the said proceedings, the letter dated 8th June, 2006 was registered as Revision No. 5 of 2005-06, on which, the impugned order has been passed on 22nd August, 2007, was passed, whereby, the order dated 28th March, 2006, was set aside. 7. After hearing the rival contentions of the parties, this Court is not in agreement with the argument extended by the learned counsel for the respondents that the communication dated 8th June, 2006, on which, the action has been taken, which was addressed by the Forest Department to the Collector and which was, based on the letter of Mr. Vinod Chahuan, Secretary, Congress Committee could be treated as to be a Revision as provided under Section 219. 8. If this modality of entertaining the revision is permitted under law, then under garb of exercising suo moto power, it would be absolute chaos in dispensation of justice and its administration and it would be giving uncontrolled hand to the Administrative Officers to act on the whims and fancies and on the dictates of the political leaders by entertaining the application randomly at any point of time, they feel and, in any manner and format. Hence, in such circumstances, it cannot be ruled out that entertainment of such type of application was not an independent judicious application of mind for exercising the suo moto action. 9. Since the inception of the proceedings of the Revision itself was not a conscious decision taken by the Collector which has been decided by the impugned order, this Court feels that such type of proceedings cannot be permitted to stand in the eyes of law and, thus, the impugned order deserves to be quashed. 10. 9. Since the inception of the proceedings of the Revision itself was not a conscious decision taken by the Collector which has been decided by the impugned order, this Court feels that such type of proceedings cannot be permitted to stand in the eyes of law and, thus, the impugned order deserves to be quashed. 10. Simultaneously, this Court cannot be oblivions of the fact that the order of the Assistant Collector dated 28th March, 2006 also do not justify the test of adjudication because once the Court was determining the right to change the revenue entries based on the sale deed made in favour of the present petitioner, it ought to have considered the rival contentions, the case presented before it, and should have recorded its findings for justifying application prior to issuing the direction to record the name of the petitioner, particularly when it was having an impact on the alleged forest land. Furthermore, it was necessary for the Court to have recorded the findings as to whether what sanctity could be attached to the report which constituted to be the basis of passing the order dated 28th March, 2006. Thus, the order dated 28th March, 2006, though, it is an order, but it is not an adjudication of application under Section 33 / 39 which was to be processed as per law, being statutory proceedings. 11. In that view of the matter, since the order happens to be without assigning any reason or application of mind, the order dated 28th March, 2006, too, cannot be sustained in the eyes of law. 12. The resultant effect of setting aside of both the orders would be that it would result into the revival of the application submitted by the predecessors of the petitioner which will now be pursued by the petitioner who has stepped into the shoes of the predecessors of the petitioners, i.e. respondent Nos. 4 to 7 and he would be pursuing the application under Section 33 / 39 under the strength of the sale deed executed in his favour. 13. 4 to 7 and he would be pursuing the application under Section 33 / 39 under the strength of the sale deed executed in his favour. 13. The Court of Assistant Collector, first will consider the propriety of the application and the case as agitated in the principal application filed by the respondent No. 4 to 7 on its own merits and then pass a reasoned order as to whether the necessary entries are required to be made in the revenue records or not. Accordingly, after passing of the order under Section 33 and 39, the parties to the present writ petition, are free to take there legal action as provided under law. 14. Accordingly, the writ petition is allowed. No order as to costs.