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2020 DIGILAW 170 (UTT)

PUSHPA DEVI v. COMMISSIONER GARHWAL MANDAL

2020-03-03

R.C.KHULBE, RAMESH RANGANATHAN

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JUDGMENT Ramesh Ranganathan, C.J. (Oral) Heard Mr. Pankaj Purohit, learned counsel for the appellant and Mr. B.P.S. Mer, learned Brief Holder appearing for the State of Uttarakhand and, with their consent, the Special Appeal is disposed of at the stage of admission. 2. The appellant herein filed Writ Petition (M/S) No.3602 of 2019 questioning the order of the District Magistrate, Chamoli dated 02.01.2019 and the order of the Commissioner, Garhwal Mandal dated 19.10.2019. On the Writ Petition being dismissed by the order under appeal, she has invoked the appellate jurisdiction of this Court. 3. Facts, to the limited extent necessary, are that the appellant-writ petitioner belongs to the Scheduled Castes, and her income falls well below the poverty line. The father-in-law of the appellant-writ petitioner had occupied Government land of an extent of 0.010 hec. On the demise of the appellant-writ petitioner's father-in-law, and since the subject land was under the occupation of the appellant-writ petitioner's husband, eviction proceedings were initiated against him under the Public Premises (Eviction of Unauthorized Occupants) Act. The Sub-Divisional Magistrate, by order dated 24.09.2015, directed eviction of the appellant-writ petitioner's husband. Aggrieved thereby, the appellant-writ petitioner's husband preferred an appeal to the District Judge who, by order dated 31.10.2017, dismissed the appeal. The appellant-writ petitioner's husband, thereafter, filed Writ Petition (M/S) No.3230 of 2017 and this Court, in its order dated 20.12.2017, observed that the orders impugned in the Writ Petition had held the status of the petitioner to be an unauthorized occupant of public land, which was also admitted by the writ petitioner; he had filed a representation claiming regularization of his possession under Government Orders without disturbing the findings recorded by the lower courts under the Public Premises Act; and there were Government Orders under which a person, belonging to an oppressed class, is required to be given the benefit of regularization of possession. The District Magistrate, Chamoli was directed to consider his representation in the light of the prevalent Government Orders, and take a decision thereupon. In the light of the orders passed by this Court, in Writ Petition (M/S) No.3230 of 2017 dated 20.12.2017, the appellant-writ petitioner's husband submitted a representation to the District Magistrate, Chamoli who, by his order dated 02.01.2019, rejected the same holding that the land, in the occupation of the appellant-writ petitioner's husband, was classified as ‘forest', and could not be alienated. 4. 4. The appellant-writ petitioner's husband then moved an application before the Commissioner, Garhwal Mandal who, by his order dated 19.10.2019, concurred with the order of the District Magistrate that the land in the possession of the appellant-writ petitioner's husband could not be regularized in his favour since the said land was ‘forest land'. The District Magistrate was, however, directed to examine the feasibility of allotting the appellant-writ petitioner (whose husband had died in the interregnum), a similar extent of land in any other part of the village for residential purposes. Aggrieved thereby, the appellant-writ petitioner invoked the writ jurisdiction of this Court and, on the Writ Petition being dismissed, she has now invoked the appellate jurisdiction of this Court. 5. While it is no doubt true that the proceedings, under the Public Premises Act, have attained finality, a learned Single Judge of this Court had, by order in Writ Petition (M/S) No.3230 of 2017 dated 20.12.2017, permitted the appellant-writ petitioner's husband to submit a representation to the District Magistrate, Chamoli claiming the benefit of Government Orders which provide for regularization of land in the possession of members belonging to the oppressed classes, and who are victims of natural calamities. The District Magistrate, Chamoli was justified in passing the order dated 02.01.2019, refusing to regularize the plot in the petitioner's possession, on the ground that the said plot of land was earmarked as ‘forest', and could not, therefore, be regularized in favour of private individuals. The Commissioner, Garhwal Mandal has taken a sympathetic view in directing the appellant-writ petitioner to approach the District Magistrate, Chamoli seeking allotment of any other residential plot within and nearby the village, but outside forest boundaries. 6. The appellant-writ petitioner, in our view, ought to have approached the District Magistrate, Chamoli pursuant to the order passed by the Commissioner, Garhwal Mandal on 19.10.2019. She had, instead, invoked the writ jurisdiction of this Court. While the learned Single Judge cannot be said to have erred in dismissing the Writ Petition as the appellant-writ petitioner's earlier demand to stall eviction proceedings was not successful, the Commissioner, Garhwal Mandal has, in our view rightly, taken a compassionate view since the appellant-writ petitioner is a widow belonging to the Scheduled Castes, her income falls below the poverty line, and she is a landless poor. 7. 7. We consider it appropriate, in such circumstances, to modify the order under appeal and, instead, permit the appellant-writ petitioner to submit a representation to the District Magistrate, Chamoli relying on the observations made by the Commissioner, Garhwal Mandal in his order dated 19.10.2019, and seek allotment of a residential plot, within the limits of the village or in nearby areas, which is not classified as ‘forest'. In case any such representation is made by the appellant-writ petitioner, the District Magistrate, Chamoli shall, after causing an inquiry whether any such plot is available within the village limits and nearby areas, consider the appellant-writ petitioner's request for grant of a residential plot in accordance with the Government Orders issued from time to time, and in accordance with law, with utmost expedition and, in any event, within two months from the date of receipt of the appellant-writ petitioner's representation. 8. The Special Appeal is disposed of accordingly. No costs.