Kewal Krishna v. State of U.P.

#1. Heard Mr. Vipul Sharma, Advocate petitioner, Ms. Beena Pande, Standing Counsel for the State of Uttar Pradesh, Mr. R.C. Arya, Standing Counsel for the State of Uttarakhand and Ms. Pushpa Joshi, Senior Advocate assisted by Mr. Saurabh Adhikari, Advocate for the intervener.

#2. The Uttar Pradesh Irrigation Department through its Executive Engineer, Ruhailkhand Canal Division, Bareilly vide notice dated 14.2.2009 invited bids from eligible bidders for auction sale of certain felled trees of Eucalyptus, semal, Sheesham, Jamun, etc. (total 104 in numbers) for an auction to be held on 26.2.2009 at 11:00 A.M. at Inspection Bungalow, Satuiya, which is presently in Kichha, District Udham Singh Nagar, Uttarakhand. The petitioner was the highest bidder and gave a bid of ‘1,39,000/-. However, the petitioner was also asked by the U.P. Irrigation Department to give stamp duty on the said auction purchase which was protested by the petitioner. Meanwhile since the petitioner did not pay the 2 stamp duty in time, respondent no. 2 re-advertised the tender notice on 16.5.2009. This action of respondent no. 2 is being challenged by the petitioner in the present writ petition.

#3. This Court vide order dated 19.5.2009 passed an order for maintaining the status quo. Meanwhile, during the pendency of the present writ petition, an intervention application by one Sri Khateeb Ahmad has also been filed. This intervention application was allowed by a learned Single Judge of this Court vide order dated

7.8.2009. Pleadings have been exchanged in this case and the matter is being heard finally.

#4. Before the matter could be heard on merits, a question has cropped up before this Court which goes to the very root of the matter and which relates to the authority of the U.P. Irrigation Department to dispose of the property situated in the territory of Uttarakhand! The State of Uttarakhand was created by an Act of Parliament (i.e. U.P. Reorganisation Act, 2000) and came into existence on 9.11.2000. Part VI of the said Act pertains to the apportionment of the liability and Section 43 relates to apportionment regarding land and goods. Section 43 of the Act reads as under : (cid:147)43. Land and goods.-(1) Subject to the other provisions of this Part, all land and all stores, articles and other goods belonging to the existing State of Uttar Pradesh shall,- (a) if within the transferred territory, pass to the State of Uttaranchal; or (b) in any other case, remain the property of the State of Uttar Pradesh: Provided that where the Central Government is of opinion that any goods or class of goods should Uttar Pradesh and Uttaranchal, otherwise than distributed States 3 according to the situation of the goods, the Central Government may issue such directions as it thinks fit for a just and equitable distribution of the goods and the goods shall pass to the successor States accordingly: sub-section, Provided further that in case of any dispute relating to the distribution of any goods or class of the Central goods under Government shall endeavour to settle such dispute through mutual agreement arrived at between the successor Governments States for that purpose, failing which the Central Government may, on request by any of the the successor States, after Governments of consulting both the Governments of the successor States, issue such direction as it may deem fit for the distribution of such goods or class of goods, as the case may be, under this sub-section. (2) Stores held for specific purposes, such as use or utilisation in particular institutions, workshops or undertakings or on particular works under construction, shall pass to the successor States in whose territories such institutions, workshops, undertakings or works are located. (3) Stores relating to the Secretariat and offices of Heads of Departments having jurisdiction over the whole of the existing State of Uttar Pradesh shall be divided between the successor States in accordance with such directions as the Central Government may, after consultation with the Government of each successor States, think fit to issue for a just and equitable distribution of such stores. (4) Any other unissued stores of any class in the existing State of Uttar Pradesh shall be divided between the successor States in proportion to the total stores of that class purchased in the period of three years prior to the appointed day, for the territories of the existing State of Uttar Pradesh included respectively in each of the successor States: Provided that where such proportion cannot be ascertained in respect of any class of stores or where the value of any class of such stores does not exceed rupees ten thousand, that class of stores shall be divided between the successor States according to the population ratio. 4 (5) In this section, the expression (cid:147)land includes immovable property of every kind and any rights in or over such property, and the expression (cid:147)goods does not include coins, bank notes and currency notes.(cid:148)

#5. Admittedly the land where the inspection bungalow of U.P. Irrigation Department exists is in the territory of Uttarakhand. The trees which are on the land are also the property of the State of Uttarakhand. Therefore, this Court was at pains to understand as to under which provision of law and on what authority the U.P. Irrigation Department could auction the property which belongs to the State of Uttarakhand! As we have seen ultimately it is this auction by U.P. Irrigation Department, which is the subject matter here. When this question was put to the learned counsel representing the State of Uttar Pradesh Ms. Beena Pande, she submitted that under the U.P. Reorganisation Act, particularly under Section 79, till orders are finally passed by the Central Government, the arrangements as it was existing prior to the appointed day i.e. 9.11.2000 regarding the water resources of river (cid:147)Yamuna(cid:148) and river (cid:147)Ganga(cid:148) shall continue and since it was earlier being maintained by the State of Uttar Pradesh, the same is being maintained even today. Therefore, U.P. Irrigation Department had an authority to maintain the forest produce within the premises of the inspection bungalow which is under the management and control of U.P. Irrigation Department. The counsel states that they had also taken prior permission to the District Forest Officer of Uttarakhand for the said purposes.

#6. Be that as it may, there is no doubt in the Court(cid:146)s mind that U.P. Irrigation Department has absolutely no 5 authority to dispose of the property which belongs to Uttarakhand as under Section 43 of the U.P. Reorganisation Act all the land including forest produce is the property of the State of Uttarakhand. Therefore, in view of this Court, the very auction for which notices were issued by the U.P. Irrigation Department is without any authority of law. Therefore, the relief which the petitioner is seeking cannot be given to the petitioner and to that extent the relief is denied. However, it is directed that since the very initiation of the exercise of disposal of the forest produce by respondent no.2 is without any authority of law, he shall refund the money to the petitioner along with 6 % interest accrued on the said amount. Respondent no. 2 shall also refund any money from Khateeb Ahamad the newly impleaded respondent with the same interest within a period of 6 weeks from the date of production of a certified copy of this order.

#7. The learned Standing Counsel Sri R.C. Arya shall also communicate a copy of this order to the Principal Chief Conservator of Forest who shall immediately make arrangements to take possession of the produce which is the subject matter of the present writ petition forthwith, and dispose of the same in accordance with law.

#8. Writ petition is disposed of accordingly.

#9. Interim order dated 19.5.2009 stands vacated.

#10. No order as to costs. Avneet (Sudhanshu Dhulia, J.)

5.11.2012