Pratap Ram v. State of U.P & Ors.

Judgment

1. This writ petition was dismissed for non- prosecution on 8.3.2011. Now a restoration has been filed by the petitioner along with an application for condoning the delay in filing the restoration application.

2. Reasons assigned the delay condonation application seem to be bona fide. Delay condonation application (CLMA No. 1526 of 2012) is allowed. Delay in filing the restoration application is condoned.

3. Reasons assigned in the restoration application seem to be bona fide. Restoration application (MCC No. 102 of 2012) is allowed. Order dated 8.3.2011 is hereby recalled. The matter is restored to its original number.

4. The petition is now being heard on merits.

5. Heard Mr. Lalit Samant, Counsel for the petitioner, Mr. R. C. Arya, Standing Counsel for the State of Uttarakhand and Mr. Amar Shukla, Counsel respondent no.4.

6. The petitioner was in occupation of certain land which admittedly belonged to the State. Vide order dated

23.12.1982, Deputy Commissioner/Collector 2 regularized the land in question in favour of the petitioner and thereafter (cid:147)Patta(cid:148) was granted to the petitioner on the same day. Respondent no.4 had objections moved a complaint before the Collector district Pithoragarh. The Collector instituted an inquiry into the matter which was conducted by Tehsildar/Sub Divisional Magistrate, who came to a finding that there is substance in complaint against the petitioner inasmuch as the plot nos. 2335, 2338, 2390 and 2396 are earmarked land for public utility inasmuch as it has a part of the primary school of the village and villagers have got rights for grazing their animals as well as there is (cid:147)Panghat(cid:148). In terms of Government Order dated 16.2.1981 concerned authority if it finds that the land has been given wrongly, can cancel such orders. Consequently, orders were passed

21.12.1994 cancelling regularization.

7. Mr. R. C. Arya, Standing Counsel appearing for the State has relied upon Section 132 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, which reads as under:- in which "132. Land (Bhumidhari) rights shall not accrue.--Notwithstanding anything contained in Section 131, but without prejudice to the provisions of Section 19, (Bhumidhari) rights shall not accrue in : (a) pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation ; (b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette, and 3 [(c) lands declared by the State Government by notification in the official Gazette to be intended or set apart for taungya plantation or grove lands of a [Gaon Sabha] or a local authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this clause- (i) lands set apart for military encamping ground, (ii) lands included within railway or canal boundaries, (iii) lands situate within the limits of any cantonment, (iv) lands included in sullage farms or trenching grounds belonging as such to a local authority, section 42 of (v) lands acquired by a town improvement trust in accordance with a scheme sanctioned the U.P. Town Improvement Act, 1919 or by a municipality for a purpose mentioned in clause (a) or clause (c) of section 8 of the U.P. Municipalities Act, 1916 and (vi) lands set apart for public purposes under the U. P. Consolidation of Holdings Act, 1953 (U. P. Act V of 1954)."

8. The basic contention of the Standing Counsel for the State as well as counsel representing respondent no.4 is that since the land was for public purpose which could be used for general public, the allotment of this land in favour of private person is in violation of the law and once the finding has come in inquiry that this land was indeed for public purpose the order which has been presently passed but only after hearing the petitioner including the counsel for the petitioner and hence there is no anomaly in the said order.

9. Initially the writ petition was allowed on 18.10.2005 by a learned Single Judge of this Court on the ground 4 that once the land stood allotted to the petitioner in the year 1982, the Collector could not have reviewed its order after 12 years. Aggrieved by the order dated 18.10.2005, respondent no.4 went in special appeal being special appeal no. 194 of 2007. The special appeal was allowed on 3.5.2010 by a Division Bench of this Court the order of the learned Single Judge was set aside and the matter was remanded to this Court.

10. Since there is categorical finding that the land is for public purpose and the finding is based on inquiry, the order of cancellation of allotment of land dated

21.12.1994 was passed after hearing the petitioner and, therefore, there is no anomaly in the matter. As far as reviewing of its order the concerned authority under Section 21of General Clauses Act can review its order but since the order is quasi judicial in nature all that was required was an opportunity of hearing be given to the person in whose favour land was allotted. In this case, this aspect has been taken care as due notice was served to the petitioner and not only the petitioner his counsel was also heard before the impugned order was passed.

11. Based on this, this Court is of a clear view that as far as powers of the concerned authority to pass the order both the Government Orders dated 16.2.1981 and

6.12.1976 authorizes the Collector to pass such an order. Moreover, under the general principal there is no anomaly in the impugned order particularly now when there is a finding that the land is of public use. The regularization of the land in favour of the petitioner has rightly been cancelled. Therefore the writ petition fails and is hereby dismissed. 5

12. However, having said this one aspect which was contended by the petitioner still remains which is that regularization of the land which has been cancelled includes some portion of (cid:147)Naap(cid:148) land of the petitioner. So he contends. Therefore in case such a (cid:147)Naap(cid:148) land, the Collector shall give some piece of land to the petitioner elsewhere. Moreover, in case the petitioner is landless or does not have enough land to sustain himself he is at liberty to move an appropriate application to the Collector for grant of land for the said purposes.

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

3.10.2012