Kuldeep Singh and others vs State of Uttarakhand and others

SHARAD KUMAR SHARMA, J.

K.M. JOSEPH, C.J. (Oral)

The appellants are the writ petitioners. The prayers sought in the writ petition are as follow:

“i) Issue a writ, order or direction in the nature of mandamus directing the respondents to record the petitioners as recorded tenure holders in the

land bearing Gata No.1/2 measuring 0.088 hectares, Gata no. 2/22 measuring 7.085 hectare, Gata no. 501/13 measuring 57.351 hectare total area is

64.521 hectare i.e. 133 acres of Village Dhyanpur, Pargana Nanakmatta, Tehsil Sitarganj, District Udham Singh Nagar.

ii) Issue a writ order or direction in the nature of mandamus directing the respondent 2, 3 & 4 to decide the representation dated 01-05-2018 submitted

by the petitioners (annexure no.2 to this writ petition) in accordance with law and in accordance with the order dated 09-11-2009 passed by learned

Assistant Record Officer, Sitarganj, District Udham Singh Nagar (annexure no.1 to this writ petition).â€​

Briefly put the case of the writ petitioners is as follows:-

The predecessors, ancestors of the appellants contend that they were permanent resident of Western Punjab (presently Pakistan). They migrated to

Tehsil Sitarganj of the then Nainital District. The Government, at that relevant point of time, i.e. 1950, allotted land of the description, which is

mentioned in the writ petition, to the predecessors of the appellants under the resettlement scheme. They could not approach the respondents for entry

of their names in the revenue records as recorded tenure holders prior to 2009 due to their illiteracy and being from the other backward category, i.e.

Rai-sikkh. The ancestors of the petitioners as well as the petitioners plead that they are still in possession and cultivating the property till date.

Petitioners contend that aforesaid land was wrongly recorded under category 5 (3) (1) as a forest land. However, at the spot, no forest is existing. The

petitioners has filed Case No. 138/168/2009 under Section 54 of the Land Revenue Act, before the Assistant Record Officer, Sitarganj, District

Udham Singh Nagar, which as per findings recorded shows that it was not contested by the Forest Department and, on the basis of the report of

Tehsildar/ Survey Revenue Inspector who reported possession for long duration, the Assistant Record Officer, Sitarganj, District Udham Singh Nagar

by an order dated 09.11.2009 allowed the case of the petitioners and directed that entry in the revenue record as Shreni 5 (3) was directed to be

expunged and petitioners to be recorded as Sankramanya Bhumidhar. It was left open for each petitioner to initiate appropriate proceedings before

competent Court for settlement of Kurras and partition map. The writ petitioners approached the respondent authorities including the Revenue

Inspector for recording their name as per the order dated 09.11.2009 passed by the Assistant Record Officer, Sitarganj, but the respondents have slept

over the matter for years. The petitioners in continuation thereto represented in writing on 01.05.2018 for recording them as Sankramanya Bhumidhar,

tenure holders for the aforesaid land. It appears that it was done apparently after nine years and thereafter, they have approached the Court.

The learned Single Judge by the impugned judgment did not grant relief except by taking the view that the appellants wanted an execution of order

passed by Revenue Court under an Act and the Court under its jurisdiction could not pass such order in the writ petition, though, the appellants would

be at liberty to approach the State Government or its authorities competent for redressal of their grievances. The writ petition was dismissed.

We heard Mr. T.P.S. Takuli, learned counsel for the appellants and Mr. Vikas Pandey, learned Standing Counsel for the State of Uttarakhand /

respondents.

The matter appears to be governed by Rule 39 of U.P. Revenue Court Manual.

After hearing the learned counsel for the parties and considering Rule 39 of the U.P. Revenue Court Manual, we are of the view that the judgment

of the learned Single Judge requires to be modified and the writ petition should be partly allowed by directing that a decision be taken on the

representation filed as Annexure No. 2 by the Collector / District Magistrate, who is respondent No. 2. We would also like to make it clear that if the

respondents wish to challenge the proceedings and if it is permissible under law, the consideration of representation should be made conditional on the

same. Accordingly, the appeal is disposed of as follows :-

The judgment of the learned Single Judge is modified. We dispose of the writ petition and the appeal by directing Annexure No. 2 to be considered

by the 2nd respondent within a period of three months from the date of production of certified copy of the judgment, in accordance with law and

bearing in mind Rule 39 of the U.P. Revenue Court Manual. We make it clear that this will not stand in the way of the respondents, if so advised,

taking any steps against the order passed by the Assistant Record Officer.

However, there would be no order as to costs.