Uttarakhand High Court

Sant Shri Asharam Ram Ji vs State Of Uttarakhand And Others on 21 July, 2023

     HIGH COURT OF UTTARAKHAND AT
               NAINITAL
            Writ Petition (M/S) No.2263 of 2013
Sant Shri Asharam Ram Ji
Manager Sant Shri Asharam                              ....Petitioner

                              Versus

State of Uttarakhand and Others                   ....Respondents

Present:-
            Mr. K.P. Upadhyaya, Senior Advocate assisted by Mr. K.K.
            Tiwari, Advocate for the petitioner.
            Mr. Vinod Nautiyal, D.A.G. with Mr. Narain Dutt, Brief
            Holder for the State/ respondent nos. 1 to 4.
            Mr. M.C. Kandpal, Senior Advocate assisted by Chitrarth
            Kandpal, Advocate for the respondent no.5.
            Mr. Atul Bhatt, Advocate for the respondent nos. 6 and 7.
            Mr. I.D. Paliwal, Advocate for the respondent no.8.

                           JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to notices

dated 13.02.2013 and 09.09.2013, issued by the respondent

no.2, the Divisional Forest Officer, Narendra Nagar Forest

Division Munikireti, Tehri Garhwal. By it, the petitioner has

been required to vacate his possession from the leased land.

2. Heard learned counsel for the parties and

perused the record.

3. It is the case of the petitioner that one Tyagi

Lachman Das was given lease, as per Lease No.59, measuring

0.574 acres situated at Brahampuri, Post Tapovan, Patti

Dhamandsyu Neergarhj, Compartment No.4, Tehsil, Narendra

Nagar Tehri Garhwal ("the disputed land"). Tyagi Lachman

Das executed a power of attorney in favour of the petitioner

and gave actual possession of the disputed land to him on

10.06.1991 along with license for making construction over

the disputed land and to use the disputed land. The

petitioner, thereafter, raised certain constructions.

Subsequent to it, according to the petitioner, Tyagi Lachman

Das also gave an affidavit confirming the possession to the

petitioner. Tyagi Lachman Das is no more. He died. In view of

certain disputes with the respondent no.5 and other persons,

according to the petitioner, he filed Original Suit No. 97 of

1995, Sant Shri Asha Ramji President Sant Shri Asha Ram

Ashram Trust Versus Tyagi Lachman Dass and others, in the

court of District Judge, Tehri Garhwal, seeking injunction, etc

("the Original Suit"), which was decreed in favour of the

petitioner and the first appeal is still pending, in which status

quo order qua possession has already been passed.

4. It is the case of the petitioner that he had

already applied for the renewal of the lease. The State of U.P.

and the Administrative Officers have confirmed the

possession of the petitioner over the disputed land. The State

of U.P. had also recommended for the renewal of the lease in

favour of the petitioner and had made communication to the

respondent nos. 6 and 7. The matter is still pending. In view

of it, the notices for vacating the possession from the disputed

land is not in accordance with law.

5. Respondent nos. 2 to 4, i.e. the State of

Uttarakhand, did file its counter affidavit. According to the

State of Uttarakhand, after the death of original lessee, Tyagi

Lachman Das, the power of attorney has no significance. It

automatically stands revoked. Therefore, the possession of the

petitioner over the disputed land is illegal and is possession is

in the nature of a trespasser.

6. The respondent no.5, Ram Sevak Das, had

separately filed his counter affidavit. According to him, the

original lessee had already revoked the power of attorney that

was executed in favour of the petitioner. In fact, according to

the respondent no.5, the petitioner had got the letter dated

11.06.1991 executed from Tyagi Lachman Das fraudulently,

which was subsequently revoked.

7. The respondent nos. 6 and 7 did not file any

counter affidavit.

8. Learned Senior Counsel appearing for the

petitioner would submit that the petitioner is not illegal

occupant of the disputed land. The original lessee had given

the possession of the disputed land to him. The power of

attorney was executed and, subsequent to it, the original

lessee had also given an affidavit confirming the possession

and construction that were raised by the petitioner over the

disputed land. He would also raise the following points in his

submission:-

(i) The petitioner has secured his possession

by filing the Original Suit, in which the

respondent no.5 were restrained to

interfere in the possession of the

petitioner.

(ii) Even the Indian Forest Conservation Act,

1980 ("the Act"), permits non forest

activities in the reserved forest with the

prior approval of the Central Government.

He would refer to the provisions of

Section 2 of the Act.

(iii) The State of U.P. had recommended for

renewal of lease in favour of the person

nominated by the original lessee. Learned

Counsel has referred to letter dated

26.12.1995 of Special Secretary, State of

U.P, written to the Central Chief

Conservator of Forest, Government of

India. Various other letters have also

been referred to.

9. Learned counsel appearing for the respondent

nos. 6 and 7 would submit that the last communication that

was made on the subject was on 24.03.2000 by the

Conservator of Forest, Central Government of India to the

Principal Secretary, Government of U.P., but thereafter no

communication has been made.

10. Learned counsel for the respondent nos. 6 and 7

would submit that the Ministry of Environment and Forest

("MoEF"), Government of India, has yet not accorded its

approval for the renewal of the lease.

11. Learned Counsel for the State of U.P. would

submit that, in fact, communications were made with the

MoEF, Government of India, on 26.12.1995, revealing therein

that if the lease is renewed in favour of the nominee as

nominated by the original lessee, the Forest Department will

have no objections.

12. Learned Senior Counsel appearing for the

respondent no.5 would submit that, in fact, the power of

attorney, executed in favour of the petitioner by the original

lessee had already been revoked by the original lessee.

Therefore, the petitioner has no authority.

13. A very small issue needs disposal. The petitioner

admits that he is in possession of a portion of land of which

lease was given to Tyagi Lachman Das. The following facts are

admitted:-

(i) Original lease was granted to Tyagi

Lachman Das.

             (ii)    The term of lease had expired.

             (iii)   Tyagi Lachman Das has also died.

             (iv)    The original lessee Tyagi Lachman Das,

according to the petitioner, gave a power

of attorney to the petitioner and,

subsequently, delivered actual possession

as well.

(v) The petitioner did approach the authority

for renewal of the lease of the disputed

land.

(vi) There have been correspondences with

the MoEF, Government of India, with

regard to the renewal of the lease of the

disputed land.

(vii) The lease of the disputed land has yet not

been renewed.

14. When these lines were dictated, learned Senior

Counsel appearing for the respondent no.5 would submit

that, in fact, the lease had expired in the year 1970 and the

original lessee had died in the year 2001. Learned Senior

counsel for the petitioner admits these facts.

15. Fact remains that the Original Suit was not filed

against the State Government or against the Union of India. It

was filed against the original lessee Tyagi Lachman Das and

one Vivekanand Das. In the Original Suit, after the death of

the original lessee, the respondent no.5 was substituted. It is

evident from the judgment passed in the Original Suit, which

is on the record.

16. By the impugned notices, petitioner has been

directed to vacate his possession over the disputed land and

hand over the possession to the authorities.

17. The power of attorney, as such, is not an

instrument, which may transfer rights in any immovable

property. It is a method by which someone authorises some

other person to act on his behalf. It is not an instrument for

devolution of a property. An affidavit, purportedly having been

filed by the lessee has also been relied on by the petitioner,

but an affidavit, given by someone, per se, does not devolve

the rights in any immovable property.

18. In the case of Suraj Lamp and Industries Private

Limited Vs. State of Haryana and Others, (2012) 1 SCC 656,

the Hon'ble Supreme Court had an occasion to interpret the

nature and effect of a power of attorney. In Para 20 and 21,

the Hon'ble Supreme Court observed as hereunder:-

"20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, this Court held:

"13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage

the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

* * *

52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee." An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor."

19. Even otherwise, after the death of the executor

of a power of attorney, it becomes insignificant.

20. The petitioner has no ownership over the

property. He has no rights over the property qua the

respondent nos.1 to 4 and 6, 7 and 8. Insofar as dispute with

the respondent no.5 is concerned, there is a first appeal

against the judgment and decree passed in the Original Suit.

It is stated at Bar that it is still pending. The relationship of

the petitioner qua the respondent no.5 is different. The

relationship of the petitioner qua the other respondents is

also different. Neither the petitioner, nor the respondent no.5

is the owner of the disputed land, but the State is the owner