Uttarakhand High Court
SPA/280/2023 on 4 August, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
SPECIAL APPEAL NO. 280 OF 2023
4TH AUGUST, 2023
Between:
Om Prakash Agarwal ...... Appellant
and
Sub Divisional Magistrate /
Assistant Collector, Kashipur
and others ...... Respondents
Counsel for the appellant : Mr. Siddhartha Singh, learned
counsel
Counsel for the respondents : Mr. K.N. Joshi, learned Deputy
Advocate General for the State /
respondent Nos. 1, 2 and 4
: Mr. Davesh Bishnoi, learned
counsel for respondent No. 3
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)
The present special appeal is directed against
the judgment dated 07.07.2023, passed by the learned
Single Judge, in the writ petition preferred by the
appellant, being Writ Petition (M/S) No. 1870 of 2023.
2) The first submission of Mr. Singh, learned
counsel for the appellant, is that the learned Single Judge
has observed in para 8, that the impugned notice dated
2
05.06.2023 may simply be termed as an apprehension of
the petitioner, and if action pursuant to the observation
made in the impugned order dated 05.06.2023 is taken,
perhaps, then the petitioner may be well within his rights
to defend such actions. Mr. Singh submits that the
recommendation contained in the impugned notice dated
05.06.2023, is as good as an order against the petitioner /
appellant, and the appellant is entitled to assail the same
even at the stage of recommendation.
3) We cannot agree with Mr. Singh on this aspect.
A recommendation is merely a recommendation, and it
may, or may not be accepted, or acted upon. Therefore,
as observed by the learned Single Judge, the appellant /
petitioner would be entitled to raise the challenge to a
definite order which may be passed in pursuance of the
recommendation, and not before. .
4) The next submission of Mr. Singh is that, in para
9 of the impugned order, the learned Single Judge has
raised a doubt with regard to the claim of the petitioner /
appellant over the disputed land. We find that the learned
Single Judge has made an observation only on the basis of
the pleadings of the appellant / petitioner. However, as
the learned Single Judge has himself observed, he has not
returned any finding. That being the position, in our view,
3
the appellant could have no grievance with the observation
made by the learned Single Judge in para 9 of the
impugned order.
5) The learned Single Judge has directed the
Assistant Collector, First Class, to decide the appellant's
application under Section 41 of the U.P. Land Revenue Act,
i.e., Demarcation case No. 06-04 of 2022, as expeditiously
as possible.
6) That being the position, we see no merit in the
present appeal. The same is, accordingly, dismissed.
________________
VIPIN SANGHI, C.J.
_________________
RAKESH THAPLIYAL, J.
Dt: 04th AUGUST, 2023
Negi
