Sri Upendra Kumar and Others vs State of Uttarakhand and Others

B.S. Verma, J.—By means of Recall Application Nos. 7298 of 2010 and 7303 of 2010, the respondent Nos. 1 and 2 have prayed to recall the order dated 6-8-2010 whereby they were directed to show cause as to why they should not be punished for committing contempt of this Court''s order dated 4-6-2010.

On behalf of the respondent Nos. 1, 2 and 3 delay condonation application accompanied by counter affidavit has been filed.

Heard Learned Counsel for the parties on the above applications.

Grounds are sufficient to condone the delay in filing the counter affidavit.

Accordingly, delay in filing the counter affidavit on behalf of the respondent Nos. 1 to 3 is condoned. The counter affidavit is taken on record.

Since the counter affidavit filed on behalf of the respondent Nos. 1 to 3 has been taken on record, there is no need to proceed further in contempt matter against the respondent Nos. 1 and 2.

The recall applications filed on behalf of respondent Nos. 1 and 2 stand disposed of accordingly.

By means of this writ petition, the petitioners have sought the following relief:

(a) Issue a writ, order or direction in the nature of certiorari quashing the notification dated 5.10.2009 temporarily acquiring the land of the petitioners showing the same to be part of plot No. 279/12.

(b) Issue a writ order or direction in the nature of certiorari quashing the possession certificate dated 30.11.2009 by which the respondent-State has taken possession of the land of the petitioner showing the same to be part of Khasra No. 279/12 and to direct the respondent-State to restore back the possession of the property of the petitioners.

(c) Pass such further orders or direction which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case.

(d) Award the cost of litigation to the petitioner.

So far as the relief (a) whereby quashing of Notification dated 5-10-2009 has been sought by the petitioners, admittedly the period of the impugned Notification has elapsed on 31-5-2010, but the prayer (b) sought by the petitioners survives.

Briefly stated, the facts giving rise to the present writ petition, according to the petitioners, are that the petitioners are Bhumidhars with transferable rights of the land of plot No. 279/1 of Mauza Rishikesh, Pargana Parwadoon, district Dehradun, but the State Government had temporarily acquired the said land for Kumbh Mela purposes showing it plot No. 279/12. The averment to this effect has been made in paragraph No. 25 of the writ petition.

In the counter affidavit, the stand taken by the respondent- State is that the land of Khasra No. 279/12 was acquired for purposes of Kumbh Mela-2010 u/s 35 of the Land Acquisition Act and that the land belonging to the petitioners was not acquired. It is also stated that the disputed land belongs to the State Government and is recorded in the name of the State Government, therefore, there is no question of awarding compensation to the petitioners or anyone else. It is also stated that the petitioners No. 1 and 2 are the owners of Khasra No. 279/1, which has not been interfered with, while the land of plot No. 279/12 alone was acquired. And that the petitioners have no concern with the land acquired by the State Government.

Learned Counsel for the petitioners has vehemently submitted that the controversy as raised by the respondents-State was resolved earlier in Civil Suit No. 8 of 1989, Upendra Kumar and two Ors. v. State and Anr. The petitioner Nos. 1 and 2 and predecessor of petitioner Nos. 3 to 5, namely Piyush Kumar, filed the suit for permanent injunction against the State of Uttaranchal pertaining to land of plot No. 279/1, area 22.54 Acres of village Rishikesh.

In that suit, Issue No. 2 was framed by the trial Court whether plot No. 279 is the property of the State Government? If so, at which place and its effect? Issue No. 3 was framed whether any amendment has been made in the revenue record carving out plot No. 279/12? If so, its effect?

I have heard Learned Counsel for the parties and perused the material placed before this Court including the memo of petition and the counter affidavit.

A perusal of the record shows that the trial court after hearing the parties and perusing the evidence has taken a view that plot No. 279/1 belong to the plaintiffs-petitioners herein and the property mentioned in the plaint is not a part of plot No. 279/12. The Civil Judge (Senior Division)/VI F.T.C. Dehradun while deciding Issue Nos. 3, 4 and 5 has also specifically held that fraction (Batta number) of plot No. 279/12 occurring after plot No. 279/1 can only be carved out as per Land Record Manual serially, namely 279/2, 279/3, 279/4 and so on, but there is no mention of those plot numbers. It was also held that the defendant-State failed to establish that plot No. 279/12 is the property of the State Government. Accordingly, Issue Nos. 3 to 5 were decided against the defendant-State. It was also held that the defendant-State has failed to establish that the property belongs to the State, if any, over plot No. 279 and in the last it has been held that the land of plot No. 279/1 belongs to the plaintiffs (petitioners herein) and the plaintiffs are the owners of the land in dispute. Ultimately, the suit for permanent injunction was decreed by judgment and decree dated 18-7-2001.

Aggrieved by the said judgment and decree, the defendant-State of Uttaranchal and another filed Civil Appeal No. 136 of 2001 before the District Judge, Dehradun. The said appeal was ultimately transferred and heard by the Additional District Judge/F.T.C.-III Dehradun. The first appellate court has also discussed the evidence issue wise, dismissed the appeal and affirmed the findings of the trial court by its judgment and decree dated 2-4- 2004.

Learned Counsel for the petitioners has submitted that no second appeal was filed by the State, therefore, the judgment rendered by the trial court has become final so far as the ownership of the petitioners over plot No. 279/1 is concerned.

The present writ petition has been filed by the petitioners because the State-respondent has made temporary acquisition of the land of the petitioners of plot No. 279/1 showing it plot No. 279/12. It is obvious from a perusal of the averments made in the counter affidavit that the State had taken the same stand in its written statement filed in the suit (O.S. No. 8 of 1989) before the trial court, which has been referred to above.

The grievance of the petitioners is that in the garb of plot No. 279/12, the respondents took possession of the land of plot No. 279/1, which belongs to the petitioners.

The contention of the Learned Counsel for the petitioners appears to be correct because if plot No. 279/12 belongs to the State Government, there was no need of temporary acquisition of the land belonging to the State itself for the purpose of Kumbh Mela-2010.

In view of the discussion above, the writ petition deserves to be partly allowed pertaining to second relief sought by the petitioners.

The writ petition is partly allowed with no order as to costs. The respondents No. 1 to 3 are directed to hand over possession of the land in question to the petitioners, mentioned in the judgment and decree passed by the Civil Judge (Senior Division)/F.T.C. VI, Dehradun in Original Suit No. 8 of 1989, wherein the boundaries of the land were also specified, within a period of six weeks from the date of production of a certified copy of this order.