Mahendra Pal Singh vs State Of Uttarakhand And Others
2021 Latest Caselaw 3631 UK

              IN HIGH COURT OF UTTARAKHAND
                         AT NAINITAL
                    Writ Petition No.1854 of 2021 (M/S)

Mahendra Pal Singh                                                          .....Petitioner
                                           Vs.

State of Uttarakhand and others                                         ...Respondents

Advocate: Mr. Jagdish Ch. Belwal, Advocate for the petitioner.

Mr. Suyash Pant, Standing Counsel for the State of Uttarakhand.

Hon'ble Sharad Kumar Sharma, J.`

In pursuance to the directives, which were issued from the office of the Chief Minister of the State, a Dispute Redressal Committee, was constituted for the purposes of deciding the summary disputes, between the parties by constituting the committee which was headed by Pargana Adhikari with its constituent members as S.H.O., the Consolidation Officer.

2. In pursuance to the constitution of the aforesaid committee, a dispute was raised by the private respondent no.5, herein by approaching the Dispute Redressal Cell, in relation to a land bearing Paimaish No.18, having an area of 5x24x32 feet. The Dispute Redressal Committee, thus constituted had issued notices to the parties, and had called upon the petitioner to file his objection to the complaint, which was thus submitted by the private respondents in relation to the aforesaid land, which constituted to be the part of the khasra no.195/1, having an area of 1.3560 hectares, khasra no.195/5 having an area of 0.0630 hectares, which as per the report, which was called for and submitted by the revenue authority, it was a land, which was recorded in the revenue records as land lying in Shreni 6(2).

3. In the proceedings, which were thus held before the Dispute Redressal Committee, the petitioner did voluntarily participated in the proceedings, as would be apparent from the findings, which has been recorded in the impugned order dated 24.03.2021, which has been put to challenge by the petitioner in the present writ petition.

4. Consequent to the decision of the Dispute Redressal Committee, it was ultimately observed, that on the basis of the conclusion arrived by the Dispute Redressal Committee, the possession over the disputed property was directed to be handed over to respondent no.5 and it's an admitted case, that as a consequence thereto, the possession over the disputed land, has already been handed over to respondent no.5. After passing of the said order, the present writ petition has been filed and the petitioner and has primarily, raised the following grounds, while giving a challenge to the said decision of 24.03.2021.

5. The principle grounds, as argued by the counsel for the petitioner are:-

1. That the Dispute Redressal Committee, did not have any jurisdiction to decide the matter, particularly when it relates to a landed property, where an issue of transfer of possession is a subject matter of consideration.

2. That the action taken by the Dispute Redressal Committee, is without due process of law, as he was not provided with an ample of opportunity to cross examine the witnesses and hence, the entire action taken against the petitioner happens to be in violation of Article 300-A of the Constitution of India.

3. Thirdly, he submits that if the constitution of the Dispute Redressal Committee, itself is taken into consideration, in fact on a decision being taken by the Dispute Redressal Committee, the reports were required to be consequently, submitted before the SSP and the District Magistrate, for their consideration, before any action is taken and since the said process was not resorted to the action is violative of the policy, itself which was enforced by virtue of the Government Order No.26/02 dated 07.06.2019.

4. Lastly, he submits that the action taken by the respondents would be arbitrary, because he has been occupying the possession over the property ever since the era of his forefathers, over a land which is admittedly recorded in the revenue records as Shreni 6(2) land and hence the summary proceedings, for eviction of the possession in pursuance to the aforesaid Government Order of 07.06.2019 and consequential handing over of possession of land, would be arbitrarily.

6. This Court is not in agreement with the rational which had been applied by the petitioner, for the reason being that at the time, when the Dispute Redressal Committee, thus constituted, had called upon the petitioner after issuing notices to him, in order to have his version placed before it, the petitioner had voluntarily participate in those proceedings and has submitted his document by way of evidence in support of his contention, as would be apparent from the findings which had been recorded in the impugned order of

24.03.2021. In that eventuality, this Court is of the view, that the very fact that when the petitioner had himself contested the proceedings on its own merits, by putting his version, defence and claim in contravention to the claim which was raised by respondent no.5, it would amount to, that the petitioner has submitted to the jurisdiction of the DRC, without raising any objection, to its constitutional jurisdiction at the first available instance.

7. In AIR 1993 Supreme Court 1616, Rukmini Amma Saradamma vs. Kallyani Sulochana and others the court has held as under:-

"22. As to whether a second revision lay to the High Court this Court by the judgment in Aundal Ammal's case (supra) held that no such revision lay. On this point the High Court referring to this very judgment held that the jurisdiction under Article 227 of the Constitution is not taken away. Therefore, the earlier order dated 21.8.86 passed in exercise of revisional jurisdiction under Section 115 of the Act is not void. We need to pause to consider this because this point ought to have been urged by the appellant immediately after the order of remit was made. Pursuant to the order of remit the appellant took a chance by participation in the proceedings before the Rent Controller, taking up the matter in appeal. Thus, having acquiesced in these proceedings she cannot question the first remit order."

8. The law ,postulates that if the party to a proceedings has a doubt, that the body, which has been thus vested with the authority to adjudicate a right under the Government Order dated 07.06.2019, is not competent, under law to decide. The party concerned, which has doubt about the competence of the body constituted, to decide the nature of dispute, is supposed to raise an objection in that regard at the first available instance about the issue of competence, before participating and submitting to its proceedings on its own merit, having not done so and since having contested the proceedings before the Dispute Redressal Committee, on its own merits, the petitioner is now estopped from questioning, the jurisdiction and particularly, when the proceedings happens to be in the shape of summary proceedings, which has been voluntarily contested by him.

9. The petitioner has submitted that action of the respondents is arbitrary and in violation of Article 300-A of the Constitution of India. In order to answer this question which has raised by the petitioner, Article 300 A of the Constitution of India is extracted hereunder:-

"300A. No person shall be deprived of his property save by authority of law."

10. If the principle provision of Article 300-A of the Constitution of India is taken in to consideration, it only protects a right or deprivation of a possession of a property of a person or a citizen as defined under Article 5 of the Constitution, subject to the condition that it is "his property", the possession of which is safeguarded. As per the opinion of this Court, the constitutional mandate, as envisaged under Article 300-A of the Constitution of India, exclusively only protects the right in relation to the property over which a person holds a title; admittedly the land in the present is recorded as Shreni 6(2), merely an assertion without evidence, that forefathers of the petitioner had been residing over the property will not vest a title over the petitioner, until and unless the said fact, is established by evidence on record. Even the length of possession so claimed by the petitioner, has had to be established by documentary evidence i.e. khasra entries, so as to what bearing will it have providing a conferment of a right in favour of the petitioner which is to be decided by the competent civil court.

11. Hence, Article 300-A of the Constitution of India, is not an exclusive provision, which intends to eradicates or over rides the provisions for deciding the rights of a person over the property and one of the prime element, which is required is that the protection has to be in relation to the property, which is vested with the person. In the instant case as per revenue law provided under Land Record Manual, the land recorded in Shreni 6(2), is the nature of land included, and described under Para A-124, which describes land as under:-

"A.124. Arrangement of holdings- The arrangement of land within each village in the khatauni shall be as follows:

PART 1 (1) Land cultivated by government of [Gaon Sabha] or any other local authority entrusted with management of land under section 117-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950.

Note- This class will also include plantation of community orchards or groves by the Gaon Samaj or any other local authority entrusted with the management of land under section117-A of the UP Zamindari Abolition and Land Reforms Act, 1950.

(1-A) Land held by bhumidars (1-B) Land held by persons under the Government Grants Act (2) Land held by sirdars

(3) Land held by asamis who occupied or held land-

(a) as non-occupancy tenants of pasture land, or of land covered by water and used for the purpose of growing singhara and other produce, or land in the bed of river and used casual or occasional cultivation, on the date immediately preceding the date of vesting;

(b) as-non occupancy tenants of land which the State Government had, before the date of vesting, declared by notification in the Gazette as part of the tract of shifting and unstable cultivation;

(c) as non-occupancy tenants of land which the State Government had, before the date of vesting declared by notification in the Gazette to be intended or set apart for tanugia plantation or community orchard or village farm or trenching grounds belonging as such to a local authority;

(d) on being admitted, on or after the date of vesting by the Gaon Samaj, as a lessee of land mentioned in sub-class (a) to (c) above;

(e) as thekedars who become asamis under the proviso to sub-section (3) of the section 13 of the UP Zamindari Abolition and Land Reforms Act, 1950

(4) Land held as occupiers without title when there is no one already recorded in column four of the khasra.

(4-A) Following are the excess land acquired under the UP Imposition of ceiling on Land Holdings Act, 1960:

(a) The land held by any lessee for any intention period under the provisions of UP Imposition of ceiling on Land Holding Act, 1960:

(b) Any other land.

Note- The excess land which have not been given on lease for permanent or interim period acquired under UP Imposition of Ceiling of Land Holdings Act, 1960, will be shown under above sub-section (b). Such details of the land, i.e. Parti Jadid, Parti Quadim waste land, etc., all of them are not required to be recorded in the Khatauni, but they will be recorded in the Column 18 and 19, such as in the case of non-cultivated land included in the cultivable land will be total (2), (a) and (b) equal to all excess land, which was already acquired under the UP Ceiling on Land Holdings Act, 1960.

   (5) Culturable see land
       (i)     new fallow;
       (ii)    old fallow;
       (iii)   culturable waste-
               (a) Forests of timber trees-

(1) under the management of Forest Department (including erstwhile private forests made over to the Forests Department). (2) vested in the Gaon Samaj

(b) Forests of other trees, shrubs, bushes, etc.

(1) under the management of Forest Department (including the erstwhile private forests made over to the Forests Department). (2) vested in the Gaon Samaj

(c) permanent pastures and other grazing lands

(d) thatching grass and bamboo bushes

(e) other culturable waste.

Note- (1) For the purpose of classification under sub clause (iii) above "timber trees" means tree the value of which mainly lies in its timber for building purposes and its fruit or like produce. Examples of timber trees are sakhu, sagaun, hasna, deodar, haldua, country mango (not qalmi), neem, sheesham, jamunon, asna,mahua, tun mulberry kadam bamboo, imli chir, cypress, babool, amla, bel, kaitha,dhik, kikar arma, seeding mango and kanji (pongamiagalbra) etc. Such trees as bargad, pakar, peepal, gular etc. are not timber trees.

(2) Sub class (b) (2) will consists of babool, dhak, sirhor, bankraunda etc. (3) Sub class (c) will include grazing lands within the forests areas also (4) For sub class (d) the examples of thatching grasses are bed, narkul, patwar, kans, baid etc. (6) Barren Land-

(i) covered with water;

(ii) sites, roads, railways, buildings and other lands put to non-agricultural uses;

(iii) grave-yards and cremations grounds and other than those included in land held by tenure holders in abadi area

(iv) otherwise barren Note- (1) Sub Class (iv) will include land which cannot be brought under cultivation without incurring high cost.

(2) Land held by the Union of India, State Government, Gaon Sabha, or any other local authority entered under class (5) or class (6) shall be recorded in the name o respective departments of the Union of India or of the State Government, or of the Gaon Sabha or local authority as the case may be, numbering same as A, B C, D, respectively to denote the administrative control and management.]

PART II (7) Land held by asamis who occupied or held land-

(a) as non-occupancy tenants of intermediary's grove on the date immediately preceding the date of vesting;

(b) as sub-tenants of grove-land on the date immediately preceding the date of vesting;

(c) as sub-tenants under the proviso to sub-section (3) of Section 27 of the U.P. Tenancy (Amendment) Act, 1947, on the date immediately preceding on the date of vesting;

(d) as mortgages from persons belonging to any of the Classes mentioned in classes(i) to (iv) of Section 19 of the U.P. Zamindari Abolition and Land Reforms Act, 1950;

(e) as person to whom sir or khudkasht was allotted by the holder thereof in lieu of maintenance allowance, as provided in Section 11 of the U.P. Zamindari Abolition and Land Reforms Act, 1950;

(f) as thekedar who cultivated, on the dated immediately preceding the date of vesting, land whieh was sir or khudkasht of the lessor as provided in clause (a) of sub- section 92) of Section 13 of the U.P. Zamindari Abolition and Land Reforms Act, 1950;

(g) as tenants of sir land mentioned in clause (h) of sub-section (1) of Section 21;

(h) as a lessee holding under a lease from a court under Section 252 (1) of the U.P. Tenancy Act, 1939;

(i) as occupant of grove-land referred to in Section 21(2) of the U.P. Zamindari Abolition and Land Reforms Act, 1950;

(j) on being admitted in accordance with the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950; by a bhumidhar or sirdar as lessee of land comprised in this holding.

(8)     Land held by adhivasis.
(9)     Occupiers of land without the consent of the person entered in column 4 of the
khasra.

Note.- (1) For facility of reference Sections 4 to 24 of the U.P. Zamindari Abolitoin and Land Reforms Act, 1950, which contain the law relating for bhumidhars, sirdars, asmis and adhivasis have been reproduced at the end of this Chapter. (2) The sub-classification of asmis mentioned in classes (3) and (7) should be shown only in the first khatauni prepared after the date of vesting in the subsequent khatauni the sub-class should be omitted."

12. The petitioner contends that in the proceedings which were held before the DRC, he was not provided with an ample of opportunity, because an opportunity to cross examine the witnesses, was not provided to him. In the opinion of this Court, in fact, the proceedings before the DRC, which was constituted in pursuance to the Government Order No.26/2 dated 07.06.2019, issued by the office of the Chief Minister, it was an 'alternative summary platform', which was created to for the purposes of deciding the summary dispute, where elaborate evidentiary procedure, was not required to be undergone and this prospective can also be considered from the view point that when the petitioner was participating in the proceedings before the DRC, if he wanted to avail an opportunity to cross examine, the witnesses of the rival party, he could have, or ought to have availed an opportunity by filing an application praying for an appropriate application before the DRC for redressal of his grievance. Having not done so, he cannot in at the writ stage, contend that the procedure, which was adopted by the Dispute Redressal Committee, was procedurally flawed.

13. This argument of the learned counsel for the petitioner, if it is taken into consideration from a different prospective, that if he contends, that he was not provided an opportunity to cross-examine witnesses, it means that he has submitted to the jurisdiction of the DRC. Hence, the first question which he has raised about the competence of the DRC, to decide the nature of the dispute stands diluted, as per his own arguments because no contradictory stand can be permitted to be taken by the petitioner at this stage.

14. Lastly, he submits that in accordance with the directions which were issued by the office of the Chief Minister, constituting the Dispute Redressal Forum, if any decision was to be taken by the DRC, it ought to have been placed before the competent authorities as laid down in the said Government Order i.e. SSP and the District Magistrate and because of non placement of the report of the DRC, before the aforesaid authority, the entire proceedings would be vitiated.

15. This argument too is not accepted by this Court, for the reason being that the placement of the decision of the report of DRC before aforesaid

two competent authorities, since it would not be having any bearing pertaining to the determination of a right which has been made and it was only procedural in nature and not a substantive provision or directives for redetermination of a right denovo by the authorities, before whom the report was to be placed, it will have no bearing at all over the decision or decision making process resorted to taken by the DRC.

16. Even otherwise also, this Court is of the view, that once a right is claimed by the petitioner in relation to a land which has been recorded in Shreni 6(2), for which there is no material on record to show that the petitioner or his predecessors had a title vested, qua the right which were claimed by respondent no.5, it would entail a decision on merits of the rival claim raised by the private respondent, which will be amenable to and by a competent civil court or the revenue court only as the case may be; but the decision of the Dispute Redressal Committee, to which the petitioner has submitted to its jurisdiction by actively participating in its proceedings, cannot be made amenable to a writ jurisdiction under Article 226 of the Constitution of India, in case if there happens to be an infringement of his civil right, which he contends to have possessed in relation to the land in question, his appropriate remedy would be to approach the civil court and not by virtue of filing of a writ petition; because the ultimate impact which admittedly has been projected by the pleadings raised, in the writ petition is that as a consequence of the decision taken by the DRC, the possession has been handed over to respondent no.6 and if at all the possession of a private respondent has to be disturbed, it could be only by way of a regular civil court, or a competent revenue court, as the case may, be but not by way of the writ petition because writ courts under Article 226 of the Constitution of India, cannot decide the civil rights of two contesting private parties, which requires an appreciation of evidence to determine the respective rights.

17. Hence, for the reasons aforesaid, this Court is not inclined to exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India. The appropriate recourse which as per the opinion of this Court, would be available to the petitioner is left open for the petitioner to be resorted to by filing an appropriate proceedings before regular court for the determination of his civil rights in relation to the land in question.

18. After culmination of the judgment, the counsel for the petitioner had sought to address the Court, with regards to the ambit of power, which has been vested with the Dispute Redressal Committee, which has been constituted by the Government Order dated 07.06.2019, what he intends to argue is that the Dispute Redressal Committee, which has been constituted, as such can only resolved a dispute by way of an amicable settlement, it cannot act as a substitute to a civil dispute redressal forum, for deciding an inter-se civil rights, but if the finding itself recorded in the impugned order are taken into consideration in fact it does not reflect, that the petitioner has ever raised this contention of the competence, as well as the ambit of power, which could be exercised by the Dispute Redressal Committee, which has settled the dispute by way of a complaint submitted by respondent no.5. Hence this contention too, in the light of the provisions contained under Article 300-A of the Constitution of India cannot be made as a subject matter of consideration in a writ jurisdiction under Article 226 of the Constitution of India. Hence too, this Court is not inclined to interfere in the writ petition. The writ petition is accordingly, dismissed.

(Sharad Kumar Sharma, J.) 16.09.2021 Arti