Harnam Singh & Another vs State Of Uttarakhand Through District Magistrate/Collector, District Udham Singh Nagar & Others

Sudhanshu Dhulia, J

This writ petition has been filed by the petitioners seeking the following relief:-

"I. Issue a writ order or direction in the nature of mandamus directing the respondents to regularize the land of the petitioners and grant them Bhumidhari rights over the said Varg-4 over which they are in possession since 1978 and have duly deposited the requisite amount for the regularization of land as required by the respondent.

II. Issue writ order or direction in the nature of Mandamus commanding and directing the respondent no.1 to forthwith take decision on the pending application of the petitioners for regularization of their land and granting Bhumidhari rights, considering the favorable reports submitted by the concerned revenue authorities."

Petitioners are the unauthorized occupants on a Government land which is categorized as Varg-4 land as per the revenue law.

Learned counsel for the petitioners relies upon the Government Order dated 11.03.2015 wherein it has been provided that anybody who is in unauthorized possession of the land prior to 30.06.1983 and presently having possession over the land would be given "bhumidhari rights". Learned counsel for the petitioners submits that as per the aforesaid Government Order, the petitioners have also deposited certain amount with the State Government, but "bhumidhari rights" are not being given to the petitioners as yet.

A preliminary objection has been raised by the learned State Counsel that first of all from the records, it is clear that the land stood vested with the State Government vide order dated 26.11.1979 itself and the petitioners have no claim for its regularization, but in any case, because this being a revenue matter, the petitioners have a statutory remedy under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (from hereinafter referred to as the "Act") to file a suit for declaration before the revenue court.

Section 229-B of the Act reads as under:-

"229- B. Declaratory suit by person claiming to be an asami of a holding or part thereof.-(1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue the landholder for a declaration or his rights as asami in such holding or part, as the case may be.

(2) In any suit under sub-section (1) any other person claiming to hold as asami under the land-holder shall be implemented as defendant.

(3) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a bhumidhar * * * with the amendment that for the word "landholder" the word "the State Government and the Gaon Sabha are substituted therein."

This has to be seen in light of Section 331 of the Act. Section 331 of the Act reads as under:-

"331. Cognizance of suits, etc. under this Act.-

(1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application:]

[Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.]

[Explanation.-If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.]

[(1-A) Notwithstanding anything in sub-section ( i), an objection that a court mentioned in column 4 of Schedule II, or as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.]

(2) Except as hereinafter provided no appeal shall lie from an order [or decree] passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid:

[(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in column No. 4 of Schedule II to this Act in proceedings mentioned in column 3 thereof to the court or authority mentioned in column No. 5 thereof.]

(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid."

Section 331 of the Act has to be read along with Schedule II where a suit under Section 229-B of the Act has to be filed before the Assistant Collector, 1st Class. Thus there being a statutory remedy available to the petitioners, the writ petition is totally misconceived and it is hereby dismissed.

The dismissal of the present writ petition, however, will not prejudice the case of the petitioners for declaration under Section 229-B of the Act, if they ultimately file a suit for that purpose.