WPMS/1951/2017
2021 Latest Caselaw 3834 UK

IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
     ON THE 23RD DAY OF SEPTEMBER, 2021
                          BEFORE:
     HON'BLE SHRI JUSTICE MANOJ K. TIWARI

     Writ Petition (M/S) No. 2136 of 2017
BETWEEN:

Sarvesh Kumar                          ... Petitioner

AND:

District Magistrate & others           ... Respondents
      Petitioners
      (By Mr. B.S. Adhikari, Ms. Manisha Bhandari, Mr. Vipul
      Sharma and Mr. Xitij Kaushik, Advocates)

      Respondents
      (By Mr. M.C. Pande, Additional Advocate General with
      Mr. Vinod Nautiyal, learned Deputy Advocate General,
      Mr. Naresh Pant, Advocate for NHAI and Mr. Sandeep
      Tandon, Advocate for CBI)


                            With
       Writ   Petition   (M/S) No.   1953   of   2017
       Writ   Petition   (M/S) No.   1951   of   2017
       Writ   Petition   (M/S) No.   1952   of   2017
       Writ   Petition   (M/S) No.   2137   of   2017
       Writ   Petition   (M/S) No.   2138   of   2017
       Writ   Petition   (M/S) No.   2140   of   2017
       Writ   Petition   (M/S) No.   2141   of   2017
       Writ   Petition   (M/S) No.   2142   of   2017
       Writ   Petition   (M/S) No.   2144   of   2017
       Writ   Petition   (M/S) No.   2158   of   2017
       Writ   Petition   (M/S) No.   3274   of   2017


                         JUDGMENT

1. Since common questions of fact and law are involved in these petitions, therefore, these petitions are clubbed together and are being heard & decided

together. However, for the sake of brevity, facts of WPMS No. 2136 of 2017 alone are being considered.

2. According to the petitioners, their land, situate in Tehsil Kichha, District Udham Singh Nagar, was taken for widening of NH-74, by National Highways Authority of India, without paying any compensation/ consideration. It is their case that earlier NHAI had proposed to purchase their land through private negotiation and price payable to the petitioners for the land was also determined; but, subsequently, based on a legal opinion, NHAI declined to pay any compensation/consideration to the petitioners on the ground that the land, which petitioners claimed to be theirs, does not belong to them, as it is Khanti land belonging to the State Government. Petitioners contend that the land belongs to them and not to the Government, therefore, they are entitled for compensation.

3. By means of this writ petition (WPMS No. 2136 of 2017, petitioners have sought following reliefs:-

(i) a writ, order, or direction in the nature of certiorari quashing the letter No. N.H.A.I./P.I.U.-R.U.P.C./L.-74/2016/2297 dated 14.12.2016 written by the respondent no. 2 to Special Land Acquisition Officer for acquisition of the land of the petitioner recorded in Khasara No. 562V of Khata No. 107 measuring 0.1230 Hectare and Khasara No. 562 N of Khata No. 224 measuring 0.1840 Hetare situated in village Bara Tehsil Kichha District Udham Singh Nagar which was already acquired by the respondent authorities by way of negotiation and road has already been constructed thereon.

(ii) a writ, order or direction in the nature of mandamus directing the authority i.e. Project

Director National Highways Authority of India, Project Implementation Unit, Rudrapur/Respondent No. 2 to comply and implement the order No. 31034/NHAI/RO- UKD/2014/4059 dated 02.08.2016 passed by Respondent No. 3 deciding the representation of petitioner in compliance of the order dated 15.7.2016 passed by thid Hon'ble court, and release the amount of compensation to the petitioner in respect of the land of the petitioner recorded in Khasara No. 562V of Khata No. 107 measuring 0.1230 Hectare and

measuring 0.1840 Hectare situated in village Bara Tehsil Kicchha District Udham Singh Nagar, acquired by the respondents authorities by way of negotiation, and approval has been accorded by Regional Officer National Highways Authority of India, Dehradun/respondent no. 3 vide office letter/approval order No. 31034/NHAI/RO- UKD/2014/3502 dated 12.05.2016.

4. Counter affidavit has been filed by Sub Divisional Magistrate, Kichha on behalf of District Magistrate, Udham Singh Nagar. In paragraph no. 4 of the said affidavit, it has been stated that the land in question is Khanti land [Category-6 (2) land] and no one can claim bhumidhari rights over such land, in view of provision contained in Section 132 of U.P.Z.A. & L.R. Act. It is further stated that, due to mistake, such Khanti land was recorded in the name of some private individuals in the revenue records.

5. A separate counter affidavit has been filed by Project Director, National Highway Authority of India on behalf of respondent nos. 2, 3 & 4, in which also, the stand taken is that the land, which petitioners claimed to be theirs, is actually Khanti land belonging to the State Government. Thus, according to respondent nos. 2, 3 & 4, petitioners are not entitled to any

compensation for the land, which belongs to the State Government.

6. Mr. B.S. Adhikari, learned counsel for the petitioners, however, submits that petitioners have ample evidence to show that they are bhumidhar in respect of the land in question. He further submits that respondents have no other evidence except CH Form- 41 issued by Consolidation Officer under Rule 93 of U.P. Consolidation of Holdings Rules, 1954 in support of their contention that the land belongs to the State Government.

7. After hearing the rival contentions made by learned counsel for the parties, it is apparent that the controversy involved in these writ petitions cannot be decided without adjudication of the question of title. Petitioners will have a right to receive the compensation provided they are able to substantiate their claim as to title over the subject land.

8. This Court while exercising power under Article 226 of the Constitution has certain limitations and disputed questions of title cannot be decided in writ proceedings, as for adjudication of the issues involved, witnesses will have to be examined, which will not be appropriate in public law remedy under Article 226 of the Constitution.

9. Even otherwise also, petitioners are not remediless, as they have efficacious remedy of filing a title suit before a Civil or Revenue Court, as the case may be.

10. In such view of the matter, this Court declines to entertain these petitions. Accordingly, the writ petitions are dismissed. Petitioners, however, shall be at liberty to approach the competent Court by filing a regular title suit regarding land in question. It is made clear that this order will not affect the pending investigation made by S.I.T. and such investigation will continue.

(Manoj Kumar Tiwari, J.) Aswal