High Court · 2025

Mr. Raj endra Dobhal, learned Senior Counsel assist ed by Mr. Sur yakant Mait hani, learned counsel. Mr. Sunil Khera, learned Deput y Advocat e General wit h Mr. Yogesh Chandra learned St anding Counsel. Tiwari, JUD GM EN T : ( p e r M r . G. N a r e n d a r , C.J.) Heard Mr. Raj endra Dobhal, learned Senior Counsel assist ed by Mr. Suryakant Mait hani, learned counsel for t he pet it ioner and Mr. Sunil Khera, learned Deput y Advocat e General wit h Mr. Yogesh Chandra Tiwari, learned St anding Counsel for t he St at e.

2. The t he pet it ioner t hat Madhyam aheshwar t em ple is one of t he “ panch kedar” t em ples in Ut t arakhand; t hat t he pet it ioner is a nat ive of Gondar village and his ancest ors were appoint ed as caret akers of Madhyam aheshwar t em ple and have been residing in t he prem ises since t im e im m em orial; t hat t he Madhyam aheshwar t em ple is not accessible by m ot orable 1 road and is a 22 kilom et er t rek from Ransi, Tehsil Ukhim at h, Dist rict Rudraprayag; t hat t he pet it ioner and ot her villagers of Gondar reside in hut s and t em porary const ruct ions on t he t rek rout e and nearby t he t em ple; t hat t hey eek- out t heir living by perform ing seva t o t he t em ple.

3. Learned Senior Counsel has placed reliance on Annexure- 6 t o but t ress his argum ent t hat cert ain right s have been conveyed t o his forefat hers wit h regard t o perform ing services in t he Madhyam aheshwar t em ple. He would also place reliance on t he provisions of t he Scheduled Tribes and Ot her Tradit ional Forest Dwellers ( Recognit ion of Forest Right s) Act , 2006 ( for short ‘t he Forest Right s Act ’) t o cont end t hat in t he absence of const it ut ion of a Com m it t ee, as m andat ed under t he Act and t he Rules, t he act ion init iat ed under Sect ion 61 of t he I ndian Forest ( Ut t aranchal Am endm ent ) Act , 2001 is per se illegal; t hat t he order passed wit hout an inquiry int o t he right s assured t o ot her t radit ional forest dwellers, as defined under Sect ion 2( o) of t he Forest Right s Act , am ount s t o pre- j udging t he right s under t he Forest Right s Act ; t hat in t he absence of a Com m it t ee and in t he absence of a finding wit h regard t o t he right s of t hat class of persons, as defined under Sect ion 2( o) of t he Forest Right s Act , t he im pugned act ion t ant am ount t o a colourable 2 exercise of power.

4. We have queried t he learned Deput y Advocat e General. He subm it s t hat he has no inst ruct ions regarding const it ut ion of t he Com m it t ee, as m andat ed under Rule 4 t o Rule 9 of t he Scheduled Tribes and Ot her Tradit ional Forest Dwellers ( Recognit ion of Forest Right s) Rules, 2007 ( for short , ‘t he Rules of 2007’) .

5. I n t hat view of t he m at t er, we are of t he considered opinion t hat in t he light of t he claim s m ade and in t he absence of det erm inat ion of such right s under Rule 12 of t he Rules of 2007, t he inst ant act ion of evict ion, in our considered opinion, is im perm issible.

6. The fact t hat t he pet it ioner is residing t here is not in disput e. The fact t hat requires t o dem onst rat ed is, whet her t he ancest ors and forefat hers of t he pet it ioner were also residing t he sam e place and rendering services, as assert ed by t he pet it ioner. The sam e can be concluded aft er a properly const it ut ed inquiry, as m andat ed by t he Rules.

7. I n t hat view of t he m at t er, we are of t he considered opinion t hat it would be proper t o grant prot ect ion t o t he pet it ioner t ill t he const it ut ion of t he Com m it t ee and det erm inat ion of t he right s as provided under t he Act and t he Rules. 3

8. Accordingly, t he inst ant writ pet it ion is disposed of by perm it t ing t he pet it ioner t o subm it an Applicat ion, as m andat ed under Rule 11( 1) ( a) of t he Rules of 2007 wit hin a period of t wo weeks, and if such an applicat ion is m ade along wit h t he support ing docum ent s, t he respondent s / com pet ent aut horit y shall carry- out t he inquiry, as m andat ed under t he Rules and render a decision on t he claim of t he pet it ioner. At any rat e, t he respondent s / t he com pet ent aut horit y shall expedit e t he considerat ion of t he applicat ion wit hin six m ont hs from t he dat e of filing of t he said applicat ion and t ill t he det erm inat ion of t he applicat ion, t he respondent s shall not init iat e any coercive act ion t o im plem ent t he order of evict ion. I t is m ade clear t hat t his order will not ent it le t he pet it ioner t o carry- out any com m ercial act ivit y in t he prem ises.

11. The writ pet it ion st ands ordered accordingly. There shall be no order as t o cost s. Pending applicat ion, if any, also st ands disposed of accordingly. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ G. N A REN DA R, C.J. _ _ _ _ _ _ _ _ _ _ A LOK M A H RA , J. Dt : 11 t h June, 2025 Rat hour PRAVINDRA SINGH RATHOUR RATHOUR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=23699ccc2fd40ad81b6fd13323779d 9e3aeb1097d17dbb53d481cabd25946eed, postalCode=263001, st=UTTARAKHAND, serialNumber=1F65499E931DF71CDAF92A40 CC6179B8E010331BA695239171F906FD5C45 C4E8, cn=PRAVINDRA SINGH RATHOUR 4