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2019 DIGILAW 268 (UTT)

Lekhraj v. State of Uttarakhand

2019-04-02

N.S.DHANIK, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. 1. The application to condone the delay of 103 days in preferring the appeal is not opposed and the delay is, therefore, condoned. Delay Condonation Application stands disposed of. 2. This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No.3181 of 2015 dated 12.11.2018. 3. The appellants’ herein had filed the said Writ Petition seeking a writ of mandamus commanding the respondents not to dispossess the petitioners from the land mentioned in the Khatauni; a writ of mandamus commanding respondent nos.1 and 2 to consider the petitioners’ case for grant of freehold rights, over the land in dispute, in their favour in view of the government notification dated 27.01.2014; and a direction to respondent nos.1 and 2 to grant freehold rights to the petitioners over the land in dispute, after taking usual charges. 4. The case of the appellant-writ petitioners’, in short, is that they have been in possession of the subject land which were recorded as Shreni 9 tenure holder ever since 1375 fasli, corresponding to the year 1968; the subject land was recorded in the name of Hari Krishan Lal and others; pursuant to an order passed by the Assistant Records Officer, Dehradun on 07.06.2000, their names were deleted from Shreni 9, and they were given liberty to file a Suit before the competent court seeking declaration of bhoomidhari rights on the basis of their long standing possession; the names of the original owners were restored; the appellant-writ petitioners had, thereafter, instituted a Suit before the Assistant Collector Ist Class, Rishikesh, Dehradun district in Suit No.16 of 2007 (re-numbered as 20 of 2013-14); and this Suit was transferred to the court of the Assistant Collector Ist Class, Doiwala, Dehradun district, before whom the Suit is still pending as on date. 5. After the order was passed by the Assistant Records Officer on 07.06.2000, the owners of the land appear to have declared the subject land as their surplus land, pursuant to which the land stood vested in the State of Uttarakhand. An agreement of lease was executed by the State of Uttarakhand on 10.03.2002 in favour of the third respondent with the condition that the subject land should be utilized within three years, otherwise it would be deemed to have been cancelled suo motu. An agreement of lease was executed by the State of Uttarakhand on 10.03.2002 in favour of the third respondent with the condition that the subject land should be utilized within three years, otherwise it would be deemed to have been cancelled suo motu. The case of the appellants-writ petitioners, before the learned Single Judge, was that, consequent on the failure of the third respondent to utilize the land, the lease granted in their favour by the State Government, stood cancelled; and since the appellants-writ petitioners were in long standing possession of the subject land, they were entitled to be granted freehold rights in terms of the government notification dated 27.01.2014. 6. The notification, which the appellants rely upon, is the amendment made to the Uttaranchal (The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950) (hereinafter referred to as the “1950 Act”), which was notified on 27.01.2014. By the said amendment clause (‘e’) was inserted after clause (‘d’) of Section 130 of the 1950 Act and the said clause (e) reads as under:- “e. To the As per prescribe procedure by the Government such land of category 4 within the area of the State of Uttarakhand, where the persons were occupied as unauthorized from the date of 30.06.1983 or before the date and presently are occupied in that land also as per procedure prescribed by the Government.” 7. Clause A-124 of the Land Records Manual relates to ‘arrangement of holdings’. Category 4, thereunder, relates to “land held as occupiers without title when there is no one already recorded in column 4 of the khasra”. Category 9, on the other hand, relates to “occupiers to land without the consent of persons entered in column 4 of the khasra”. 7. As is evident from the order of the Assistant Records Officer dated 07.06.2000, the appellant-writ petitioners’ father’s name was included in Category 9, before its deletion by the order dated 07.06.2000. Section 130 (e), as inserted by an amendment to the 1950 Act by notification dated 27.01.2014, relates only to Category (4) and not to Category (9). The appellants-writ petitioners’ are, therefore, not entitled to claim that they should be treated as Category 4 and be granted freehold rights of the subject land on the basis of their long standing possession. 8. The appellants-writ petitioners’ are, therefore, not entitled to claim that they should be treated as Category 4 and be granted freehold rights of the subject land on the basis of their long standing possession. 8. With regards the petitioners’ claim for injunction, and for the respondents to be restrained from evicting them from the land, in view of their long standing possession, it has not been disputed before us that a similar relief of injunction can be sought by them in the Suit filed by them bearing Suit No.16 of 2007 (re-numbered as Suit No. 20 of 2013-14). Mr. Tapan Singh, learned counsel for the appellants-writ petitioners, would, however, submit that the only recourse to the Government to evict the appellants-writ petitioners is by filing a Suit under Section 209 of the 1950 Act. 9. Disputed questions of fact such as whether the appellants-writ petitioners were in possession even after the order of the Assistant Records Officer dated 07.06.2000, are matters which this Court would not examine in writ proceedings. Even if the State Government is held to have the power to evict the appellants-writ petitioners by filing a Suit under Section 209 of the 1950 Act, it has not been disputed before us that the appellants-writ petitioners can also seek an injunction in the Suit filed by them. i.e. Suit No. 20 of 2013-14. 10. The learned Single Judge has, in the order under appeal, left it open to the appellants-writ petitioners to take recourse to the proceedings before the Assistant Collector in the suit filed by them under Section 229-B of the 1950 Act, and has held that a mandamus, as sought for, could not be granted. 11. Interference, in an intra-court appeal, would be justified only if the order under appeal suffers from a patent illegality. We find no such infirmity in the order under appeal. The appeal fails and is, accordingly, dismissed. No costs.