Rais Ahmed and two Others vs State of Uttarakhand

P.C.: Hon''ble B.S. Verma, J.—Heard Learned Counsel for the parties and perused the material on record.

By means of this writ petition, the Petitioners have prayed for the following reliefs:

(i) Pass an order setting aside the impugned orders dated 6-12-2000, 30-8-2003, 29-7-2005 and 21-7-2006 (Annexure Nos. 5, 7,8 and 10) passed by the learned courts below.

(ii) A ward the cost of the petition to the Petitioners.

Brief facts giving rise to the present writ petition, according to the Petitioners, are that the father of the Petitioners late Sri Niyaz Mohammed, was recorded in Class 4 of plot Nos. 137 and 187 (old Khata No. 153) which was changed later on as Khata No. 233.

During the settlement proceedings, the Assistant Record Officer/Assistant Collector, 1st Class Nainital expunged the entry from Khata No. 233 of late Sri Niyaz Mohammed and rejected the application for regularization filed by him and ordered by order dated

6-12-2000 to evict Sri Rais Ahmed and Mohd. Rafi, son of late Sri Niyaz Mohammed u/s 54(7) of the U.P. Land Revenue Act.

Aggrieved by the said order, an appeal was preferred to the Record Officer/Collector, Udham Singh Nagar. The appeal too was dismissed by order dated 30-8-2003. Further aggrieved by the order of the Collector/Record Officer, the Petitioners preferred revision before the Additional Chief Revenue Commissioner (for short A.C.R.C.). The learned A.C.R.C. also dismissed the revision of the Petitioners as well as the review application filed by them on the ground that the Petitioners could not establish the fact that Nazarana, which was deposited by the father of the Petitioners was for the land comprising Khata No. 233.

(sic) counsel for the Petitioners has vehemently contended that Khata No. 233 comprises plot No. 187 and 137, area 0.594 Hectare i.e. 9 Bigha, 8 Biswa. The Petitioners have also filed photocopy of Khatauni (Annexure No. 11 to the writ petition) in support of their contention. The trial court i.e. Assistant Record Officer has committed a manifest error of law in holding that the Petitioners could not establish this fact that Nazarana was deposited regarding the same land for which the eviction order had been passed.

In counter affidavit, averment made in the writ petition has been denied. It is stated in para No. 5 that the treasury challan submitted by the Petitioners related to Khata No. 153, whereas the case before the trial court was of Khata No. 233 and not Khata No. 153. It was also stated that no evidence was produced by the Petitioners, which could prove that Khata No. 153 is same as Khata No. 233.

The controversy to be decided by this Court is whether the land of Khata Nos 153 and 233 is the same or not.

At the outset it may be mentioned that in exercise of writ jurisdiction, the disputed questions of fact cannot be examined.

Prima facie it reveals from the Khatauni, which has been filed as Annexure -11 to the writ petition, that the land, which is included in Khata Nos. 153 and 233 is the same. It is also the duty of the Record Officer to verify this fact himself whether the land of both the Khata is same or not. The trial court has committed a manifest error or law in holding that the Petitioners could not establish that the land of Khata Nos. 233 and Khata No. 153 is the same or not. The land of both the Khatas was the same or not, was not at all decided after verification of revenue records. It has been admitted that the Nazarana was deposited regarding land of Khata No. 153 and the learned Record Officer Udham Singh Nagar in his order dated 30-8-2003 (Annexure-7) has recorded a finding that Nazarana was deposited in respect of land of Khata No. 153. The orders impugned are liable to the set aside on this ground alone. The writ petition, therefore, succeeds.

The writ petition is allowed. The orders impugned are set aside. The learned Trial Court is directed to verify the fact whether the land of Khata No. 153, as per Khatauni 1388-1393 Fasli, which was changed as Khata No. 233 as per Khatauni 1400 to 1405 Fasli, which is recorded in the name of late Niyaz Mohammed is the same land or not in respect of which the Nazarana was deposited. If Khata No. 153 subsequently changed and corresponds to Khata No. 233 and the same is established on record, in that case, the learned Assistant Record Officer shall also consider the application for regularization, which was filed by the father of the Petitioners, late Niyaz Mohammed and shall decide the same in accordance with law. No order as to costs.