Sri Krishna Arya vs State Of Uttarakhand And Others

Sudhanshu Dhulia, J

A suit for declaration of bhumidhari rights was filed by none else but the State Government through Director, Secondary Education as plaintiff no. 1, District Education Officer, Nainital as plaintiff no. 2 and the Principal, Leelawati Pant Government Inter College, Bhimtal, District Nainital as plaintiff no. 3, in the year 2012 against the present petitioner for an area measuring 0.41 hectares situated at Village Sanguri, Tehsil and District Nainital. The claim of the plaintiffs was based on the fact that in the year 1951, the land which was recorded in the revenue record in the name of Revenue Department was transferred to the Education Department and thereafter was given for use of Leelawati Pant Government Inter College at Bhimtal and there has been an encroachment on the said land at the hands of the defendants.

A suit being filed by the State Government for declaration of its right on a land on the face of it is anomalous. Nevertheless the suit was decreed by the Assistant Collector, First Class vide order dated 29.02.2016.

The defendant had raised a preliminary objection in the suit itself regarding the maintainability of the suit. His objection was that a suit cannot be filed by the State Government for declaration of bhumidhari rights in its favour under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950. Not only this declaration of bhumidhari rights were given but it were given not just on the property which was measuring 0.41 hectare, but on a piece of land which would be more than two hectares (Fifty Five Nalis). In other words, what was not even prayed in the plaint.

This matter was taken up in appeal by the defendants, which was allowed by the Commissioner, Kumaon Division, Nainital vide its order dated 14.06.2016 setting aside the order dated 29.02.2016 passed by the Assistant Collector, First Class. The plaintiffs thereafter filed a second appeal before the Board of Revenue against the order dated 14.06.2016 passed by the Commissioner, Kumaon Division. The Board of Revenue vide its order dated 27.04.2018 remitted the matter back to the Assistant Collector, First Class for deciding the matter afresh on its merit. Aggrieved, the petitioner has filed the present writ petition.

There are various ground of challenge, but the principal ground of challenge is to the State filing a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 for declaration of its bhumidhari rights! In any case, the State could either be represented by the concerned Secretary, or the Collector, and not by the Departmental Head. Therefore there is an error which is absolutely fundamental and goes to the root of the matter regarding the maintainability of the suit itself.

Mr. M.C. Pandey, learned Additional Advocate General for the State has very fairly submitted before this Court that the suit was not maintainable at the hands of the State Government. Nevertheless, he has raised a serious concern about the fact that though the form chosen by the State Authorities would be misplaced, but their concern is genuine. According to the State, its property has been occupied by unauthorized occupants.

On these facts, the writ petition is allowed. The order dated 29.02.2016 passed by the Assistant Collector, First Class and the order dated 27.04.2018 passed by the Board of Revenue are hereby set aside.

All the same, since in a district, the District Collector/District Magistrate happens to be the custodian of the property of the State, he shall consider the matter in the light of the submissions of the District Government Counsel (Revenue) as well as the counsel for the present petitioner and pass appropriate orders. He shall neither be influenced by the earlier order of the revenue authorities nor by any observations of this Court, as he/she shall decide the case strictly on merit. In case the property belongs to the State, it cannot be allowed to be wasted as occupied by unauthorized persons.

The learned counsel for the petitioner, however, has here also a report of the Revenue Inspector, Bhimtal dated 26.07.2010, which is annexure 1 to the rejoinder affidavit, according to which the land has already been demarcated. The District Collector/District Magistrate while deciding the issue shall also take into consideration this report dated 26.07.2010.

Sri M.C. Pandey, learned Additional Advocate General, who represents the State here in this case undertakes to inform the concerned Collector for onward compliance. A free copy of this order be provided to the learned Additional Advocate General for the above purpose.