Abbas Ahmed vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

As per the khatuni entries pertaining to 1424 to 1429 fasli, the petitioner is shown to be recorded as co-tenure holder in relation to the khasra numbers as defined and detailed in column 4 of the said khatuni, which is recoded as a land lying in shreni 1-Ka, i.e. a bhumidhar land with transferable rights.

Over the aforesaid land, lying in khasra No. 438-N, having a total area of 0.9603 hectares, a tube-well was constructed by the Irrigation Department as back as in the year 1955. Later on, the utility of the tube-well was not felt and consequent thereto, the tube-well, which was installed over the land, having an area of 75 feet x 75 feet, i.e. equivalent to 0.0522 hectares on khasra No. 438, the same was released back by the department by their decision dated 09.05.2016 to the recorded tenure holder, i.e. petitioner, by an order of the Executive Engineer No. 1311 dated 9th May, 2016. However, the order of handing over / release of the land, over which, the Nulkoop was constructed, there was a rider attach to it, these were that in case, if in future, if there is any objection by the Superior Officer of the Department or by the villagers, the release order as passed in favour of the petitioner on 9th May, 2016, may be cancelled. There were few others conditions too which was imposed by the Executive Engineer while passing the order of release of the land of the petitioner.

At this juncture, it would not be out of place to mention that after the release of the said land which belongs and recorded with the petitioner, there had been certain objections, which has been raised before the Department, on which, the Executive Engineer had constituted a team and had conducted an inspection and has submitted his report to the Joint Magistrate, Roorkee on 4th November, 2016. In the report, thus submitted, following observations have been made by the Magistrate (a) to the effect that the tube-well, which was constructed in 1974 was in khasra No. 438; (b) in fact, it is a land which belongs to and recorded with the petitioner along with other co-tenure holders; (c) it was further recorded that for the purposes of construction of the tube-well in 1974, no compensation was paid to the land owners and (d) that now tube well constructed on land is in operational for a quite long time.

It had further been observed that at the time of the construction of the nulkoop in 1974, the land was voluntarily handed over by the petitioner to the department without receiving any compensation and the title stands vested with the petitioner.

In the report further it was held that with the passage of time, the nulkoop, thus constructed on khasra number 438 belonging to the petitioner had lost its utility and became in-operational, due to which, the Department got the electric connection of the tube well disconnected and had, in fact, abandoned the place, where the nulkoop was constructed and, consequent thereto due to abandonment, the report was submitted by the Executive Engineer on 4th November, 2016, which had supported the fact that the act of handing over / release of the land belonged to the petitioner by an order dated 9th May, 2016 was justified.

The respondents were directed to file the counter affidavit, the Standing Counsel has filed the counter affidavit denying the writ allegations and they have contended that the land, over which, the nulkoop was constructed, i.e. 438-M, in fact, it is the land, which as per the khasra entry, it is recorded as nalkoop. But surprisingly, in column 5 of the khasra, pertaining to 1423 fasli, there is no name of the tenure holder, which has been depicted therein nor the khasra discloses the nature of the land and the category to which it falls in accordance with the provisions of Land Revenue Act as no Shreni / category of the land, as per the Land Revenue Act, has been depicted in the khasra relied by the Standing Counsel.

This Court, after going through the contents of the counter affidavit and, in particular the khatoni, which has been placed on record by the respondents in the counter affidavit, it's pertaining to 1424 to 1429 fasli, it perhaps shows that the land is a non agricultural land and submerged by the water and thus, it ought to fall to be a land within category 6 (1), i.e. the non agricultural land submerged with water as per the classification of land in para A-124. These contradictory entries in the revenue record are not in consonance to the provisions of Para A-124 of the Land Record Manual, which defines the categories of land. As per shreni-6, it is the land which is submerged with water, which is not the case at hand because, admittedly, as per the case of Standing Counsel and the documents on record, shows that it is a nalkoop which was installed over the land in 1974.

If at all the land fall to be within the definition of water body covered with water, it ought to have been entered accordingly in revenue records as per the Para 124-A of the Land Record Manual, Entry-9, which is not the case of the respondents in the counter affidavit, nor its there recorded in the revenue record, Nalkoop will never fall in the category of land which is submerged in water, i.e. Shreni 9 of land.

There is another important aspect which is also to be taken into consideration that the reason which has been assigned by the respondents while passing the impugned order for recalling the order dated 9th May, 2016, releasing the land in favour of the petitioner was on the ground that certain villagers have approached the Minister for Irrigation and had lodged a complaint before him and it is at the behest of the entertainment of the said complaint by the Minister that the impugned action of cancelling the release by the impugned order dated 27.02.2018 has been taken.

This Court is of the considered view that the said order cannot be sustained for the following reasons :

According to the khatuni entries, the petitioner is shown to be recorded as a co-tenure holder in relation to the land, lying in shreni 1-Ka, i.e. land with bhumidhari rights.

The nulkoop which was constructed in 1974, as per the report of the Executive Engineer itself had become in-operational, even the electric connection was withdrawn and the nalkoop being an abandoned nulkoop was not being utilized, as such, for the purpose, it was installed in 1974.

Admittedly, by the order dated 9th May, 2016, the Executive Engineer of Nulkoop Division, Roorkee, after considering the application submitted by the petitioner had reverted the land subject to the condition of any objection being raised by the superior authority.

There happens to be no complaint or objection by the superior authorities except some villagers who have lodged the complaint to the Minister.

Even the revenue entries at is existed on the date of passing the impugned order is not in consonance to the provisions of Land Recover Manual and was never recorded as Shreni-9 land as per para A-124 of Land Record Manual. Thus the nature of the land cannot be treated as to be a land submerged in water.

After release of the land by the order dated 9th May, 2016, if the said release is read along with report dated 4th November, 2016, as submitted by the Executive Engineer, he admits the facts :

a. That on conducting an inquiry and after going through the records, the land is shown to be recorded with the petitioner and other co-tenure holders in the revenue record, which remains un-assailed entries on the date of the order.

b. The record further shows that at the time when the land was chosen in 1974 for the construction of the nulkoop, no compensation was paid to the petitioner or to any other co-tenure holders, thus the action of taking over of land cannot be in violation of Article 14 and 300-A of the Constitution of India.

c. In the report dated 04.11.2016, which was submitted by the Executive Engineer to the Joint Magistrate, Roorkee, it is admitted that the land is not recorded in the name of the Department in the revenue records.

d. That the installation of nulkoop made way back in 1974, was after the voluntarily handing over of the land by the petitioner to the Department of the land of nulkoop, which consistently stood recorded in the name of the petitioner.

e. As it is borne out of the records itself that it was further reported by the Executive Engineer on 4th November, 2016, that with the passage of time, the nulkoop has become un-operational and the same has been abandoned by the department and its utility for the purpose for which, it was installed in 1974 has become abandoned.

f. It was also reported that after the declaration of the said nulkoop as abandoned and in-operational, all installations of the department and other apparatus, which were installed had already been removed by the Department. Subject to the stand taken by the respondents in the counter affidavit and on considering the overall assertion made by the petitioner in the writ petition, admittedly, as per the records the land belongs to the petitioner who stands recorded as co-tenure holder and thus, after the abandonment of the land by the respondents, its reversion made by an order dated 9th May, 2016, cannot be said to be illegal because it was land which was neither ever acquired nor any compensation was ever paid to the petitioner.

g. Furthermore, the impugned action which has been proceeded, which has been proceeded not on the basis of any objection raised by the superior authority of the department, but rather on the basis of complaint which was submitted by the villages who had their vested interest before the Minister of Irrigation Department, on whose direction, the action has been taken for by way of passing of the impugned order.

In view of what has been observed above, since the land still continues to be recorded in Shreni 1-Ka with the petitioner and the other co-tenure holder, it is his bhumidhari land with transferable rights and the release made in favour of the petitioner by the Executive Engineer on 9th May, 2016, cannot be faulted with in the light of the findings which has been recorded in the report submitted by the Executive Engineer to the Joint Magistrate on 4th November, 2016.

Consequently, the impugned order dated 27th February, 2018, withdrawing the order of release of land to the petitioner made as back as on 9th May, 2016 and that too by the villagers, who had no right, title or interest of any nature, based on the complaint submitted to the Minister concerned by the villagers, who had no right, title or interest of any nature, cannot be sustained and hence, the same deserves to be quashed. Furthermore, it is also relevant to mention that after the release of the land, in question, made as back as on 9th May, 2016, and when the said release was sought to be withdrawn by the impugned order dated 27.02.2018, may be even on the complaint of the villages or even on the directions of the Minister, the order does not reflect or record any finding that prior to the passing of the same, the petitioner was noticed and he was heard. Thus, the order vitiates the basic principles of natural justice, hence too, it deserves to be quashed.

In view of the above, the Writ Petition succeeds and is allowed. The impugned order dated 27.02.2018 is set aside, while the order dated 09.05.2016 is sustained and upheld.

However, there would be no order as to costs.