Sohan Lal & Anr. v. Harimohan & Ors.

Mr. Sharad Sharma, Senior Counsel assisted by Mr. Pradeep Chamiyal, Counsel for respondent nos. 1 to 6, Mr. M. C. Pant, Counsel for respondent no.8, Mr. Pramod Belwal, Counsel for respondent nos. 9, 10 and 12, Mr. Anil Dabral, Counsel for respondent no.13 and Mr. R. C. Arya, Standing Counsel State Uttarakhand/respondent no.14.

2. In this case, primarily the question was the identification of land of plot no. 276/49 which is situated in Rishikesh, District Dehradun. Way back in the year 1979, the petitioners had filed a suit for permanent injunction against the defendants seeking a relief of injunction with a claim that they are the owners of plot no. 276/49, as the interference made on the plot by the defendants. This suit was dismissed by the trial court. Aggrieved the petitioners filed first appeal which was also dismissed and thereafter petitioners also filed a second appeal before this Court which also stood dismissed by a learned Single Judge of this Court. Ultimately the petitioners had filed Special Leave Petition before the Hon(cid:146)ble Apex Court where Special Leave Petition was 2 dismissed as leave was not granted to the petitioners. The matter however does not end here.

3. The petitioners now moved an application before the revenue authorities purportedly under Section 41 of the Land Revenue Act, 1901 (hereinafter referred to as (cid:147)Act(cid:148)) praying that their land of plot no. 276/49 be demarcated. Section 41 of the Act reads as under:- (cid:147)41. Settlement of boundary disputes.- (1) All disputes regarding boundaries shall be decided as far as possible on the basis of existing survey maps, but if this is not possible, the boundaries shall be fixed on the basis of actual possession. (2) If, in the course of an inquiry into a dispute under this section, the Collector is unable to satisfy himself as to which party possession, or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupants of the property within a period of three months previous to the commencement of the inquiry, the Collector- (a) in the first case shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession; (b) in the second case, shall put the person so dispossessed in possession; and shall then fix the boundary accordingly.(cid:148)

4. On the said application the Tehsildar passed an order on 14.11.2008 ordering for demarcation of that said land. This order was challenged by respondent nos. 1 to 6 before this Court in Writ Petition (M/S) No. 2007 of

2008. The writ petition was disposed of by a learned Single Judge of this Court on 22.3.2010 with the following direction:- (cid:147)13. For the reasons as discussed above, the writ petition is disposed of with the observation that the respondents No.1 and 2 are at liberty to get demarcated their plot No. revenue concerned through 3 authorities, but without disturbing possession of the defendants over plots No. 276/50 and 276/6/37. No order as to costs.(cid:148)

5. The petitioners (respondent in Writ Petition (M/S) No. 2007 of 2008) were, however, aggrieved by the said order dated 22.3.2010 filed an appeal before the Division Bench of this Court which was again disposed of by the Division Bench on 4.3.2011 with the following direction:- object petitioners (cid:147)5. We, accordingly allow the appeal, set aside the judgment and order under appeal and make it absolutely clear that the purport and intent of notice dated 14th November, 2008 was only to demarcate the dividing line in between Khasra No. 276/49 and Khasra No. 276/6/37 and neither the appellants nor the demarcation. It shall be obligatory on the part of the Tehsildar to hear the appellants and the writ petitioners-respondents and to look into all the documents that may be produced by them for the purpose of helping the Tehlsidar in effecting such demarcation. Let a fresh notice be issued of the same nature as that on 14th November, 2008 as quickly as possible but not later than four weeks from the date of service of a copy of this order upon the Tehsildar, Rishikesh.(cid:148)

6. In short what has been held by the learned Single Judge and by and large affirmed by the Division Bench in special appeal is that no harm can be caused to anyone if the land in question is demarcated.

7. Be that as it may, in consequence of the order of Division Bench dated 4.3.2011 the revenue authorities went in action and orders were passed by the concerned authorities after a survey conducted by the committee constituted by the Tehsildar which ultimately gave a finding that the land in question (i.e. plot no. 276/49) cannot be identified and infact has been overlapped by 4 plot no. 276/6/37. In other words, the committee failed to identify the said plot. This writ petition has been filed by the petitioners challenging the said report on various grounds including mala fide on the part of the revenue authorities and some of them have been impleaded as respondents in array of parties by name.

8. One of the contentions of the petitioners is that officials of the revenue authorities who actually conducted the survey are not the officials who finally signed the report dated 30.6.2011. It was also contended that the report dated 30.6.2011 is unsigned report. This Court on 26.9.2012 had directed the State Counsel to place before this Court the entire record of the matter. Learned Standing Counsel Mr. R. C. Arya has got the entire record and placed before this Court the report dated 30.6.2011. The report has been perused. It has been signed by revenue officials including Tehsildar and many other subordinate officials. The counsel for the petitioners though still contends that the said report dated 30.6.2011 has not been signed by the officials who had actually conducted the survey. This becomes disputed question of fact for which rival contentions of the parties have to be ascertained. The fact, however, remains that the leaned senior counsel for respondent nos. 1 to 6 Mr. Sharad Sharma relied upon Section 210 of the Land Revenue Act which reads as under:- (cid:147)210. Courts to which appeals lie.- [(1) Appeal shall lie under this Act as follows: (a) to the Record Officer from orders passed by any Assistant Record Officer; [(b) (i) to the Commissioner from orders passed by a Collector or an Assistant Collector first class or Assistant Collector in charge of sub-division. 5 (ii) to the Collector from orders passed by an Assistant Collector second class or Tehsildar. [(6) No appeal shall lie against an order passed under Section 28, 33, 39 or 40].(cid:148)

9. The submission, therefore, would be that in case the petitioners have now aggrieved by the said report dated 30.6.2011 they have remedy to file an appeal before the competent authority. This Court also feels it fit and proper if the contention as raised by the petitioners in the present writ petition would be raised in statutory appeal before the competent authority as the matter requires appraisal of disputed questions of fact.

10. Contention of the petitioners is that the remedy before the competent authority may not available to them as according to them in this case the survey was done by orders of this Court is entirely misplaced as in effect the survey has been conducted under Section 41 of the Act. On this, there is no dispute and consequently there is remedy under the Statute is an appeal before the competent authority.

11. In view of the above, the writ petition is dismissed.

12. No order as to costs. Kuldeep (Sudhanshu Dhulia, J.)

4.10.2012