Guddi Devi vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

The Restoration Application (MCC) No. 1640 of 2018 as preferred by the petitioner for seeking recall of the order dated 17.11.2018, dismissing the writ petition in default is allowed. The grounds shown for absence have been satisfactorily explained and consequently the writ petition is restored to its original number.

After restoring the writ petition to its original number, the writ petition is being proceeded to be heard on merit with the consent of the parties. The petitioner in the present writ petition who claimed herself to be the Up-Pradhan of the Village Panchayat Sabha, Markham Grant, Tehsil Doiwali, District Dehradun has instituted the writ petition on the ground that the land lying in Khata No.117, which is recorded as Banjar land in the revenue record as Shreni 5(3) bearing Khasra No. 2798 having an area of 0.837 hectare is being sought to be encroached upon by respondent Nos. 1, 2 & 3, without adopting the due process of law as provided under Section 117(6) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the U.P. Z.A. & L.R. Act").

At this stage, it is relevant to make it clear that this ground of non compliance of provisions contained under Section 117(6) of the U.P. Z.A. & L.R. Act is not the ground of challenge raised by the petitioner in the writ petition has been pleaded as such in the petition, while praying for the following reliefs:-

"i) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondents not to take possess on the Gaon Sabha land Khasra no.2798, measuring 0.837 hectare of Village Panchayat Makhram Grant, Pargana Parwadoon, Tehsil Doiwala, District Dehradun and they may also be restrained that they may not change the nature of the aforesaid land.

ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent nos.1 & 2 not to change the entries of Khatauni of Gaon Sabha land khasra no.2798, measuring 0.837 hectare of Village Panchayat Markham Grant, Pargana Parwadoon, Tehsil Doiwala, District Dehradun in the name of respondent no.3.

iii) Issue any other relief, which this Hon'ble Court may deem fit and proper in the circumstances of the case be passed in favour of the petitioner.

iv) Cost of the petition be awarded in favour of the petitioner."

The case of the petitioner, which is being supported by the statement made by the counsel of the respondent No.4 who represents Gaon Sabha that this writ petition was instituted solely for the purpose to protect the land which stands vested in the Gram Sabha by virtue of issuance of notification under Section 117(1) of the U.P. Z.A. & L.R. Act,1950 as notified by the State Government.

It was contended that the District administration, as would be apparent from the order passed by the A.D.M. on 07.05.2016, has rather identified the aforesaid land for the purpose of construction of an Aabadi or residences and since a report was being solicited through his office pertaining to the status of the land which prevail at that relevant point of time, the A.D.M. is said to have written a letter to the Sub Divisional Magistrate calling up on him to submit a report alongwith a map pertaining to the status of the land in dispute as the information in that regard has been solicited by respondent No.3 vide its letter No.2504 dated 07.01.2015 for the purpose to undertake a construction of residential project . Consequent thereto, a team which was constituted by the Sub Divisional Magistrate which included the Revenue Sub-Inspector, Tehsildar, Lekhapal and Surveykshan Kanoongo who had conducted inspection on spot and had submitted a report on 21.05.2015 to the District Magistrate wherein few facts which are quite apparently stands established from the report itself that it is a land which is recorded in the revenue record as banjar land lying in category 5 (3) as per the Land Records Manual and another finding which has been recorded is that about 1000 sq.mtr. of land which is being proposed to be taken for the purpose of establishment of construction of residential site by respondent No.3 and it is being unauthorizely occupied by one Ishaq Ahmad and Jamil Ahmad who have constructed there boundary wall over the land in question. Consequent to the report submitted by the team on 21.05.2015, the matter travelled to the office of the Sub-Divisional Magistrate who too based on the report of the Committee referred above as submitted on 22.05.2015, it had reported to the District Magistrate referring therein that there happens to be an encroachment by the aforesaid two persons over the land in question and land was held to be a suitable site for residential colony as proposed by respondent No.3. Consequent to the report and the correspondence made by the Sub-Divisional Magistrate to the District Magistrate to make land available to respondent No.3.

The District Magistrate in turn thereof has written a letter/Office Memorandum dated 28.05.2015 to the Sub Divisional Magistrate, through Additional District Magistrate (Admn.) wherein for the purposes of establishment of residential purpose colony by Doon Valley Special Area Development Authority, the said land is required for an establishment of the residential purpose, later on permission be taken from the Revenue Department and because of the fact that the said land stands recorded in shreni 5(3). It was directed by the Additional District Magistrate to Sub-Divisional Magistrate to remove the unauthorized occupation of those persons who are reported to have occupied the land unauthorizedly i.e. lying in Khata No.1117, Khasara No.2798 area 0.8370 hectares. In continuation thereto in compliance of the order passed by the competent authorities proposing to take over the land for the purposes for establishment of residential colony. The Tehsildar on the basis of order passed by Sub Divisional Magistrate No.656 RC on 19.06.2015 had constituted a team for removal of unauthorized occupation of two persons were referred to in the report submitted before the District Magistrate on 22.05.2015. Ultimately, the team thus constituted by the Tehsildar then started to initiate the proceeding for evicting of the unauthorized occupants, this writ petition was preferred. The present writ petition was preferred on 23.09.2015, for the relief as mentioned above on the pretext that the petitioner since being an elected Up-Pradhan owes a responsibility to protect the unauthorized possession being taken by the respondent Nos. 1, 2 and 3 for establishment of the residential colony.

The arguments of the learned counsel for the petitioner in fact is that the report which is being submitted pertaining to the unauthorized possessions of two persons referred therein is falls in the light of averments made in para 9 of the writ petition wherein he has submitted that two persons aforesaid were occupying not Khasra No. 2798 but another Khasra No. 2376/9, which belongs to Ishaq and Shareef Ahmad. The paragraph 9 of the writ petition reads as under :-

"That the land Khasra no.2798, measuring 0.387 hectare is Gaon Sabha land and no one is in unauthorized possession of land Khasra no.2798. It is submitted that adjoining to the land khasra no.2798 there is another Khasra no.2376/9, which belongs to Shri Ishaq & Shri Shareef Ahmad and who are in possession of the aforesaid Khasra number, but the authorities have illegally claimed that the Gaon Sabha land khasra no.2798 is in possession of Shri Ishaq Ahmad & Shri Jameel Ahmad, so hey may setup a case that since the Gaon Sabha land is in possession of other persons, therefore it can be easily transfer to the respondent no.3 and to set up this case the report was submitted by the Sub-Divisional Officer and the Additional District Magistrate (Administration), Dehradun directed the Up-ziladhikari, Doiwala to remove the illegal possession of Shri Ishaq Ahmad & Shri Jameel Ahmad."

In the writ petition the arguments which has been extended by the learned counsel for the petitioner is that the action taken by the State/respondent Nos. 1 to 3 is violative of the provisions contained under Section 117(6) of the U.P. Z.A. & L.R. Act for the reason that after vesting of the land with Gaon Sabha under Section 117(1) of the U.P. Z.A. & L.R. Act, if at all it has to be divested back than there had to be a proceedings which ought to be taken by State under Section 117(6) of the U.P. Z.A. & L.R. Act of de-notifying the land from Gaon Sabha as vested under Section 117(1) of the Act.

The notices were issued and in response thereto a counter affidavit has been filed by the District Magistrate wherein the District Magistrate had in para 6 denied the contentions raised in the writ petition and had submitted in para 7 & 8 that the State owes an authority to take over the State land by powers vested in it under Act as provided under Section 117(6) of the U.P. Z.A. & L.R. Act. The stage of issuance of the notification under Section 117(6) of the U.P. Z.A. & L.R. Act had not yet reached because according to the counter affidavit till the process of survey and knowing the exact status of the Khasra No. 2798 is completed, the State can still proceed to issue a notification under Section 117(6) of the U.P. Z.A. & L.R. Act. Paragraph Nos.7 & 8 of Counter Affidavit of District Magistrate are as under :-

"7. That the contents of para 5 of the said petition are matter of record, however, it is added there that pursuant to powers conferred under section 117(6) of U.P. Zamindari Abolition and Land Reforms Act, the State govt. is authorized and competent to amend or cancel any vesting of land with the Gaon Sabha.

That the contents of para 6 of the said petition are incorrect and are denied. It is incorrect to say that Village Panchayat Markham Grant, Tehsil Doiwala, District Dehradun is the owner of the land in dispute. The facts are that the land in dispute is a govt. Land which has been vested in Gaon Sabha in view of Section 117(1) and Section 117(2) of U.P. Zamindari Abolition and Land Reforms Act, the State govt. is authorized and competent to amend or cancel any vesting of land with the Gaon Sabha. Rest of the contents of para under reply are incorrect and are denied."

So far as the writ petition is concerned and the relief claimed therein it is based on the premise that being a public spirited person and since the petitioner is holding an office of being Up-Pradhan duly supported by the respondent No.4 Pradhan they owe a duty to safeguard the property belonging to the Gram Sabha. There is nothing on record or in the pleadings to the effect that any action has been taken by the Gram Sabha which is represented through its elected Pradhan that they had ever initiated any proceedings to remove unauthorized occupants of the land i.e. Khasra No. 2798 by resorting to any proceedings under Section 122B by issuance of any notice 49Ka to the unauthorized occupants of Gaon Sabha land, which infers that the petitioner as Up-pradhan and respondent No.4 have failed to perform their duties conferred upon them under the Act, over the land which was proposed to be taken by the respondent No.3 for the purpose of establishment of residential colony and which as per the contents of the counter affidavit of the District Magistrate was to be done only after issuance of the notification under Section 117(6) the U.P. Z.A. & L.R. Act. Even much before the said action could be taken of issuance of the notification, the present writ petition has been filed by the petitioner in anticipation of an action under Section 117(6). On the scrutiny of provisions contain under Section 117(6) of the U.P. Z.A. & L.R. Act which is quoted herein under:-

"(6)The State Government may at any time,[by general or special order to be published in the manner prescribed], amend or cancel any [declaration, notification or order] made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority and resume such thing and whenever the State Government so resumes any such things, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things:

Provided that the State Government may after such resumption make a fresh declaration under sub-section (1) or sub-section (2) vesting the thing resumed in the same or any other local authority (including a Gaon Sabha), and the provisions of sub-sections (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration."

This Court after considering the rival contentions is of the view that once the land has been vested under Section 117(1) of the U.P. Z.A. & L.R. Act with the Gram Sabha, then under the theory of imminent domain, the State has a right of management of land which has been vested with the Gram Sabha and to manage the affairs of the land thus vested with the Gram Sabha under Section 117(1) of the U.P. Z.A. & L.R. Act. As far as the stipulations as contained under Section 117(6) of the U.P. Z.A. & L.R. Act is concerned it is always the prerogative of the State Government, who may by a special or a general order has a complete liberty to either amend or cancel the declaration made by the notification issued under Section 117(1) of the U.P. Z.A. & L.R. Act vesting the land with Gaon Sabha. Since the said stage was about to reach after the conclusion of the inspection conducted by the team constituted by the District Magistrate, and after evicting the unauthorized occupant just to succumb the proceedings of taking over of the land for Doon Valley Special Area Development Authority, the writ petition has been filed to install those proceedings of taking over the land for residential colony for respondent No.3.

The present writ petition has been preferred to create an impediment at the aforesaid stage. Since the possession in fact has not yet being taken and if at all the petitioner was a public spirited person holding an office of Up-Pradhan there is nothing on record to show that any effort was ever made by the Gram Panchayat by adopting the procedure provided under Gram Sabha Manual for taking an action against the unauthorized occupants for protecting Gaon Sabha land from being unauthorizedly occupied by persons who have been identified in the report submitted by the team constituted by the Sub Divisional Magistrate.

In that view of the matter that since the State under the theory of imminent domain as got a right to de-notify the property under Section 117(6) of the U.P. Z.A. & L.R. Act, any act of holding or conducting of an inspection for removal of an unauthorized occupant by the State cannot be said to be contrary to the mandate of the Act itself and even if it is presumed that an action of removing of the encroachment was taken, then, if at all in contravention to the provisions of the Act, it would always be the unauthorized occupants who will have recourse available to them under the law and since the petitioner herself has not initiated any proceedings under Section 122(B) of the U.P. Z.A. & L.R. Act. This Court holds that this writ petition is premature and its pendency ought not to have created any restriction for the State for issuing the notification under Section 117 (6) of the U.P. Z.A. & L.R. Act, this writ petition is, accordingly, dismissed.

However, there would be no order as to cost.