Garhwal Mandal Vikas Nigam ... vs Commissioner Garhwal Region
2023 Latest Caselaw 2604 UK

                                                       RESERVED

  HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition (M/S) No. 3489 of 2022


Garhwal Mandal Vikas Nigam Limited
                                                      ...Petitioner

                               Versus

Commissioner Garhwal Region, Pauri
and others                                       ...Respondents

Present:-
             Mr. Sandeep Kothari, Advocate for the petitioner.
             Mr. T.S. Fartiyal, Additional C.S.C. for the State.
             Mr. B.P. Nautiyal, Senior Advocate, assisted by Mr.
             Manokam Nautiyal, Advocate for the respondent no.3.

                                 JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to an order

dated 22.06.2018, passed by the respondent no.2 the

District Magistrate, Tehri Garhwal, by which, freehold rights

have been granted in favour of the respondent no. 3 over

Khata No.3/7, Khasra No. 7 admeasuring 5 Nali, 7 Muthi

i.e. 1090 Sq. Meters in Village Dhalwala, Rishikesh ("the

disputed land") as well as an order dated 29.01.2022,

passed by the respondent no.2 the District Magistrate, Tehri

Garhwal, by which an application for recalling order dated

22.06.2018 has been rejected.

2. Heard learned counsel for the parties and

perused the record.

3. Facts necessary to appreciate the controversy,

briefly stated, are as follows:-

The petitioner is one of the important tour

operators for Char Dham Yatra, which also starts from

Rishikesh. The petitioner in the year 1992-93 requested the

respondent no.2 the District Magistrate, Tehri Garhwal that

a piece of land admeasuring 18 Nali or 37400 Sq. Meters

("the land") situated in Village Dhalwala, Rishikesh be

transferred to it for workshop-cum-parking space. The

petitioner's further case is as follows:-

(i) The petitioner was given possession of the

land. The petitioner also carried out the

expenses of Rs.5 Lakhs in the construction

of approach road etc.

(ii) The disputed land is a part of the land. Its

lease was granted in favour of one Sunil

Kumar on 25.06.1994 and immediately, it

was transferred in favour of the respondent

no.3 on 30.06.1994.

(iii) The petitioner objected to the lease in favour

of the respondent no.3 and made a

communication on 14.08.1997.

(iv) On 31.03.1998, the lease granted in favour

of the respondent no.3 of the disputed land

was cancelled by the respondent no.2.

(v) The petitioner requested the respondent

no.2 for transfer of land in its favour.

(vi) The respondent no.3 challenged the order

dated 31.03.1998 cancelling his lease,

before the Commissioner, Garhwal Mandal

("the Commissioner") by filing a Misc. Appeal

No. 1 of 1997/98 ("the appeal"). The appeal

was dismissed on 28.09.2002.

(vii) The Commissioner in its order recorded that

the respondent no.2 could not have granted

the lease of the disputed land to the

respondent no.3.

(viii) The order dated 28.09.2002 passed in the

appeal was further challenged by the

respondent no.3 before the High Court. The

matter was remanded. But again, on

03.11.2006, the appeal stood dismissed.

(ix) The Commissioner recorded a categorical

finding that the petitioner was in possession

of the disputed land.

(x) The order dated 03.11.2006 passed in the

appeal by the Commissioner was further

challenged in Writ Petition (M/S) No. 1896 of

2006 ("the petition"), which was finally

withdrawn on 15.06.2016 by the respondent

no.3 with the direction to the respondent

no.2 to decide the application of the

petitioner for converting his land into

freehold in accordance with law and in view

of the New Nazul Policy, 2011, but without

being influenced by the earlier impugned

orders passed by some authority concerned.

(xi) After the order passed in the petition, the

petitioner again approached the respondent

no.2 raising his claim with regard to the

disputed land.

(xii) In one of the communications made by the

petitioner, the respondent no.2 had on

15.11.2018 informed the petitioner that the

proceedings to grant freehold rights to the

respondent no.3 are under consideration.

(xiii) Subsequently,        it   was    revealed     that    on

       22.06.2018,         the    respondent       no.2     had

ordered for grant of freehold rights in favour

of the respondent no.3.

(xiv) In WPPIL No. 132 of 2013, In Reference

Nazul Policy of the State for Disposing &

Management of Nazul Land Vs. State and

Others ("the PIL") this Court on 19.06.2018

had struck down the Clauses 4 (f) (g) (h) of

the Nazul Policy and the Government was

directed to take over the possession of all

such properties.

(xv) The order dated 19.06.2018, passed in the

PIL by this Court was challenged before the

Hon'ble Supreme Court, in Special Leave

Petition (Civil) No.4692 of 2019 ("the SLP"),

in which on 11.02.2019 status quo order

was passed.

4. It is the case of the petitioner that the lease

granted in favour of the respondent no.3 had already been

cancelled. The order dated 22.06.2018 is absolutely

erroneous. The respondent no.3 has never been in

possession of the disputed land. The petitioner moved an

application to recall the order dated 22.06.2018, but it had

been rejected by the impugned order dated 29.01.2022.

5. The respondent no.3 filed his counter affidavit.

According to him, he is a bhumidhar of the disputed land.

The lease had validly been granted to him. The order dated

22.06.2018 is in accordance with law. Pursuant to it, he

had deposited sale consideration of Rs.13,08,000/- and a

sale deed had been executed in his favour, which is a title

document. It could be challenged only in the civil court.

Therefore, the writ petition is not maintainable.

6. According to the respondent no.3, the impugned

order has been put to challenge after four years, that too

challenging the title documents. According to the

respondent no.3, he has been in possession of the disputed

land.

7. On behalf of the State, counter affidavit has been

filed by the respondent no.2. The factual matrix is not in

dispute. The respondent no.2 in his counter affidavit has

simply reiterated the factual aspects, but enclosed the

following communication along with the counter affidavit,

which are important to be referred to:-

(i) An application dated 30.06.1994 of one Sunil

Kumar, seeking transfer of lease deed in favour of

the respondent no.3 (Annexure 1 to the counter

affidavit).

(ii) Letter dated 25.09.1992 of the respondent no.2

addressed to the Sub Divisional Magistrate,

Narendra Nagar (Annexure No. 2 to the counter

affidavit).

(iii) Communication dated 07.01.1993 of the

petitioner made to the respondent no.2 (Annexure

No. 3 to the counter affidavit).

(iv) Communication dated 15.01.1993 of the Vice

President, Haridwar Development Authority

addressed to the respondent no.2 (Annexure No.

4 to the counter affidavit).

(v) Minutes of Meeting dated 05.12.2018 as well as

the office note of the respondent no.2 (Annexure

No. 5 to the counter affidavit).

8. The petitioner did file his rejoinder affidavit. In

his rejoinder affidavit, dated 28.05.2023, in para 4, the

petitioner has quoted the first paragraph of the freehold

deed executed in favour of the respondent no.3, which

recites that the respondent no.3 is a lease holder.

9. Learned counsel for the petitioner would submit

that the order dated 22.06.2018 is bad in the eyes of law

because the respondent no.3 is not entitled to lease or to

freehold rights, as per the Government Policy. He would

raise the following points in his submissions:-

(i) The lease, which was granted in favour of

the respondent no.3 on 30.06.1994, has

already been cancelled by the respondent

no.2 on 31.03.1998 and this order was

unsuccessfully challenged in the appeal. The

writ petition filed against it has been

withdrawn. Therefore, the order cancelling

lease of the respondent no.3 is final. The

respondent no.3 is not a lease holder.

(ii) In the month of November, 2018, the

respondent no.2 had communicated to the

petitioner that the proceedings with regard

to the freehold rights in favour of the

respondent no.3 are underway. But

subsequently, it was revealed that prior to it

on 22.06.2018, the order was passed. It is

argued that the order dated 22.06.2018 is

antedated.

(iii) The petition was withdrawn by the

respondent no.3 on 15.06.2016, seeking

liberty, so that his application for freehold

rights may be considered. But, one of the

challans for freehold rights had already been

prepared on 31.03.2012 and this fact was

concealed by the respondent no.3 in the

petition. It was a loss to the exchequer.

(iv) A trespasser may not be granted freehold

rights because that clause of the New Nazul

Policy of 2011 has already been quashed in

the PIL on 19.06.2018 against which SLP

was preferred and status quo order was

passed.

(v) The lease granted to the respondent no.3

was cancelled on the ground that the

respondent no.3 was not eligible for the

grant of lease. He was not in possession.

Therefore, it is argued that the order dated

22.06.2018 by which freehold rights were

granted to the respondent no.3 was bad in

the eyes of law. The respondent no.3 was

not entitled to the freehold rights. He was

not a lease holder. He was not in the

possession of the disputed land.

10. Learned counsel for the respondent no.3 would

submit that the petitioner has no locus standi to file a writ

petition. The petitioner is neither in possession, nor an

allottee. The petitioner is totally an outsider and stranger to

the disputed land. On this ground alone, it is argued that

the writ petition is liable to be dismissed.

11. In support of his contentions, learned counsel

has placed reliance on the principles of law, as laid down in

the case of Ayaaubkhan Noorkhan Pathan Vs. State of

Maharashtra and others, (2013) 4 SCC 465.

12. In the case of Ayaaubkhan (supra), the Hon'ble

Supreme Court discussed the words "person aggrieved" and

observed that "a stranger cannot be permitted to meddle

in any proceeding, unless he satisfies the

authority/court, that he falls within the category of

aggrieved persons. A person who raises a grievance,

must show how he has suffered legal injury. Generally, a

stranger having no right whatsoever to any post or

property, cannot be permitted to intervene in the affairs

of others."

13. Learned Senior Counsel appearing for the

respondent no.3 would also raise the following points in his

submission:-

(i) The writ petition was withdrawn by the

petitioner with a direction to the authorities

concerned to consider the application of the

petitioner for converting his land into

freehold, in accordance with law and in view

of the New Nazul Policy, 2011 without being

influenced by the earlier impugned orders.

(ii) Learned counsel would submit that as per

the Nazul Policy, 2011, even a trespasser is

entitled to freehold rights.

(iii) During the course of argument, it has also

been brought to the notice of the Court that,

in fact, the order dated 19.06.2018, passed

in the petition has been stayed by the

Hon'ble Supreme Court in Special Leave

Petition (Civil) No. 27862 of 2018.

(iv) Learned Senior Counsel would submit that

the order dated 19.06.2018, passed in the

PIL may not affect the grant of freehold

rights in favour of the petitioner.

(v)     The petitioner is a title deed holder. A

        freehold deed has been executed in his

        favour   on     18.06.2019.       He    had    paid

consideration for it. The title documents

may only be challenged in the civil court.

The freehold document has yet not been

cancelled.

(vi) The New Nazul Policy, 2011 has been

promulgated to benefit the persons. Even

trespassers have been given rights over it.

The freehold rights have been given to the

respondent no.3, as per Policy.

(v) The petitioner has never been in possession

of the disputed land. This is amply clear by

the communications that was made by the

petitioner.

14. The question is whether the petitioner has any

right involved in the matter, so as to prefer a writ petition.

Reference has been made to the judgment in the case of

Ayaaubkhan (supra). In fact, in para nine of the judgment,

the Hon'ble Court in that case has observed " therefore,

there must be a judicially enforceable right available for

enforcement, on the basis of which writ jurisdiction is

resorted to. The Court can, of course, enforce the

performance of a statutory duty by a public body, using

its writ jurisdiction at the behest of a person, provided

that such person satisfies the Court that he has a legal

right to insist on such performance. The existence of

such right is a condition precedent for invoking the writ

jurisdiction of the courts. It is implicit in the exercise of

such extraordinary jurisdiction that the relief prayed for

must be one to enforce a legal right. In fact,

the existence of such right, is the foundation of the

exercise of the said jurisdiction by the Court. The legal

right that can be enforced must ordinarily be the right

of the appellant himself, who complains of infraction of

such right and approaches the Court for relief as regards

the same."

15. It is true that lease deed has never been executed

in favour of the petitioner, but it is equally true that

according to the petitioner, he was granted possession of the

land, which includes the disputed land in the year 1992-93

and subsequently, the petitioner had also developed the

approach road and spent huge money on it. But, in the year

1993-94, lease had been granted in favour of the respondent

no.3. The lease has subsequently been cancelled on the

application of the petitioner. That order has been confirmed

up to the High Court. It is the petitioner, who has also been

claiming his rights over the disputed land. After grant of

freehold rights in favour of the respondent no.3, the

petitioner further moved an application for recalling that

order, but that has also been rejected by the impugned

order dated 29.01.2022.

16. The petitioner, in fact, is seeking allotment of the

land in his favour. According to him, he has been doing so

since, 1992-93. The rights of the petitioner had never

matured, in terms of grant of any lease or any freehold

rights. But, it cannot be said that the petitioner is a

stranger to the petition. The petitioner claims his right in

the disputed land. Therefore, in fact, the petitioner has locus

standi to file the writ petition.

17. The New Nazul Policy of 2011 has been discussed

on behalf of the parties. Learned counsel for the petitioner

would submit that Clause 4 of the New Nazul Policy of 2011,

provides for eligibility and illegal/unauthorized occupants

were also entitled for freehold rights. But, he would submit

that, that clause 4 (f) (g) (h) had been struck down by this

Court in the PIL.

18. Fact remains that the order of this Court dated

19.06.2018, passed in the PIL has been stayed by the

Hon'ble Supreme Court. Its effect is that the New Nazul

Policy, 2011 shall be read as it is today without reading the

order dated 19.06.2018, passed in the PIL. Resultantly, as

per the New Nazul Policy, 2011 an illegal or unauthorized

occupant subject to other conditions of the New Nazul

Policy, 2011 is also entitled to freehold rights.

19. The New Nazul Policy, 2011 also provides that the

lease holder is also entitled to freehold rights.

20. The question that falls for consideration is as to

whether the respondent no.3 is the lease holder of the

disputed land of which freehold rights were granted to him

on 22.06.2018 or whether he is an illegal/unauthorized

occupant of the disputed land.

21. Learned Senior Counsel appearing for the

respondent no.3 referred to an order dated 15.06.2016,

passed in the petition to argue that, in fact, the Court had

given liberty to the respondent no.3 that his application for

freehold rights shall be considered in accordance with the

New Nazul Policy, 2011 without being influenced by the

earlier orders.

22. It would be apt to reproduce, the part of the order

which is being referred to. It is as hereunder:-

"By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.03.1998 passed by the Collector/UP-Ayukta, Tehri Garhwal and order dated 03.11.2006 passed by the Appellate Authority/respondent no.3.

Learned counsel for the petitioner confined his prayer only to the extent that the District Magistrate / authority concerned be directed to decide the application of the petitioner for converting his land into freehold in

accordance with law and in view of New Nazul Policy, 2011 but without being influenced by the earlier impugned orders passed by the some authority concerned. Learned counsel for the petitioner wants to withdraw the writ petition subject to above. Learned State counsel submits that he has no objection if such an order is passed.

In view of the above, the writ petition is disposed of with liberty as above. The petitioner is also granted liberty to challenge the impugned orders if required, but in accordance with law.

All pending applications stand disposed of."

23. The lease granted in favour of the petitioner had

already been cancelled on 31.03.1998. Its appeal was

dismissed finally on 03.11.2006. It is this order dated

03.11.2006, passed in the appeal that was challenged in the

petition, which was disposed of with the liberty, as quoted

hereinabove. The effect of order dated 15.06.2016 passed in

the petition is not that of revival of the lease. The lease

granted in favour of the respondent no.3 had already been

cancelled and, in fact, it had been upheld in the petition on

15.06.2016 also.

24. By its order dated 15.06.2016, passed in the

petition, the Court had also accepted the contentions of the

respondent no.3 that his application for conversion of the

disputed land into freehold may be considered by

the Competent Authority without being influenced by the

impugned orders. Its effect is that if any application was to

be filed by the respondent no.3 that was to be considered,

as per law and in accordance with the New Nazul Policy,

2011.

25. At the cost of repetition, it may be reiterated that

on 15.06.2016, this Court did not uphold the lease in favour

of the petitioner. Instead, the Court had upheld the order by

which the lease of the petitioner was cancelled on

31.03.1998. The petitioner was not a lease holder of the

disputed land, when he had applied for the freehold rights.

The petitioner's application for freehold rights could not

have been considered under the category of lease holder.

26. Now, the question is whether the petitioner was

eligible for grant of free hold rights of the disputed land on

the basis of his possession? Can it be said that he was an

illegal/unauthorised occupant of the disputed land? This

question of possession is, in fact, much factual. But, since

the freehold rights have been granted to the petitioner and it

is being argued on behalf of the respondent no.3 that he

was in possession of the disputed land, therefore, he was

entitled to the freehold rights. This Court is examining this

aspect.

27. It may be noted that during the course of

argument learned Senior Counsel appearing for the

respondent no.3 would also submit that according to the

petitioner, the land admeasuring 18 Nali was given to them

in the year 1992-93. It is up to the petitioner to tell the

Court as to where is the remaining land? It is so because

the claim in the instant petition is with regard to the

disputed land, which is about 5 Nali.

28. It is true that according to the petitioner, he was

given possession of the land, which was about 37400 Sq.

Meters. But, in the instant case, by the impugned order,

freehold rights have been given in favour of the respondent

no.3 for 5 Nali, 7 Muthi i.e. 1090 Sq. Meters. But, merely

because it has not been disclosed, as to where the

remaining part of the land is, this Court is not divested from

examining the issue raised in the petition.

29. On behalf of the respondent no.3 reference has

been made to the communication dated 14.08.1997

(Annexure 1 to the petition) to argue that, in fact, on that

date also, the petitioner had accepted that he was not in

possession of the disputed land.

30. It is true that in his communication dated

14.08.1997, the petitioner had sought possession of the

land and a request was made to the respondent no.2 the

District Magistrate. But, the document has to be read as a

whole. This document records that the land was to be

transferred to the petitioner and the matter had been

pending with the respondent no.2 since 1993. The petitioner

was also given possession of it on 25.06.1992. This

communication reveals that some person had tried to

encroach upon the land, who had got the lease of the land.

31. The Court is examining the aspect of

illegal/unauthorised occupant of the disputed land.

Especially, the question that falls for examination is as to

whether for the purposes of New Nazul Policy, 2011, the

respondent no.3 may be said to be an illegal/unauthorised

occupant to be eligible for the freehold rights of the disputed

land.

32. Initially, the lease of the disputed land was

granted to one Sunil Gupta on 25.06.1994. It is he, who got

the lease transferred in favour of the respondent no.3 on

30.06.1994. The lease granted to the respondent no.3 was

cancelled on 31.03.1998 by the respondent no.2. This order

is very important. It is on record. It records that the

possession of the disputed land had been handed over by

the administration to the petitioner, which is confirmed by

the following:-

(i) Communication dated. 25.09.1992 of the

respondent no.2.

(ii) Communication dated 25.09.1992 of the

Haridwar Development Authority.

(iii) Communication dated 15.01.1993 of the

petitioner.

(iv) The report dated 30.05.1993 of the

Tehsildar, Narendra Nagar.

(v) Report dated 18.06.1993 of the Assistant

Collector, Narendra Nagar and thereupon, order

dated 20.06.1994 of the District Magistrate,

Narendra Nagar.

(vi) The lease cancellation order dated

31.03.1998 also records the following illegality in

grant of lease to the respondent no.3:-

(i) The lessee had to construct within 36

months on the leased property.

        (ii)    The   right    of   the   lessee   shall    be

                hereditary.

(iii) Sunil Gupta and the respondent no.3

are not family members.

(iv) The lease in the urban area could have

been granted only for 150 Sq. Meters

by the Collector.

                    (v)     In the instant case, beyond Rules,

                            lease of the disputed land has been

                            granted.

                    (vi)    For tourism purposes also the lease of

                            only 100 Sq. Meters could have been

sanctioned. It has also been violated in

the matter for grant of lease to the

respondent no.3.

33. As stated, this order dated 31.03.1998 is final.

These factual aspects have attained finality. The

respondent no.3 did not file the document by which lease

was granted to him. The respondent no.2 alongwith his

counter affidavit dated 29.04.2023, filed an application of

Sunil Kumar dated 30.06.1994 by which he had requested

that the lease granted to him may be transferred in favour of

the respondent no.3.

34. The communication dated 25.09.1992 of the

respondent no.2 addressed to the Sub Divisional Magistrate,

Narendra Nagar, which is on record shows that, in fact, the

petitioner had approached the respondent no.2 and

directions for inspection and preparation of map were

issued by this communication. Also, Annexure No.3 to the

counter affidavit of the respondent No.2 is an important

communication between the petitioner and the

respondent no.2, dated 07.01.1993. It records that a spot

inspection of the land had been done and possession of the

land had been handed over to the petitioner. But, formal

orders had not been issued. Request was made for the

formal orders. Another communication, which is Annexure 4

to the counter affidavit of the respondent no.2, dated

15.01.1993 reveals that, in fact, the petitioner had

approached Haridwar Development Authority ("HDA") for

issuance of no objection with regard to the land and the

HDA had issued no objection.

35. What is important to discuss is the minutes of

meeting dated 03.12.2019 and the office note made

thereafter. It is the claim of the petitioner that in the month

of November, 2018, the petitioner was informed that the

proceedings for freehold rights in favour of the respondent

no.3 were underway, whereas, the freehold order was

passed on 22.06.2018. Based on it, it is argued that the

order is antedated. On this aspect, learned Senior Counsel

for the respondent no.3 would submit that on 22.06.2018,

the order was passed for freehold rights in favour of the

respondent no.3, but freehold deed was issued on

19.06.2019, therefore, it cannot be said that order dated

22.06.2018 is antedated.

36. It so happened that in between, on a

communication of the petitioner, a meeting was convened by

the respondent no.2 on 03.12.2018. Its' minutes and further

note of the office of the respondent no.2 is Annexure 5 to the

counter affidavit filed by the respondent no.2. It records that

the lease granted in favour of the respondent no.3 had

already been cancelled. On 05.12.2018, the note made by

the Additional District Magistrate, Tehri Garhwal, which is

part of this Annexure 5 to the counter affidavit of the

respondent no.2, further records that the proceedings for

freehold rights were undertaken, assuming as if the

respondent no.3 is a lease holder, whereas, he is not a lease

holder. He may at the most be considered as an

unauthorised occupant and some fine should be imposed on

him.

37. The order dated 31.03.1998, by which the

respondent no.2 cancelled the lease of the respondent no.3,

makes it abundantly clear that, in fact, the possession of

the land, which includes the dispute of land had already

been given to the petitioner. The communications, which

have been referred to on behalf of the respondent no.3, in

fact, show that the possession was given to the petitioner

and subsequently, it is the respondent no.3, who had

encroached upon the disputed land.

38. It is the case of the petitioner that they had spent

money on the land for construction of the approach road.

The petitioner also claims its possession on the disputed

land. The respondent no.3 also claims its possession over

the disputed land. The dispute has been between the

petitioner and the respondent no.3. As stated, in the order

dated 31.03.1998, passed by the respondent no.2 while

cancelling the lease deed of the petitioner, it was held that

the possession was given to the petitioner.

39. There is one document, which is really very

important, that is an application for grant of leasehold

rights given by the respondent no.3. In the impugned order

dated 22.06.2018, in fifth paragraph, it is recorded that

against the order cancelling the lease deed, the respondent

no.3 had preferred an appeal and it was stayed by the

Commissioner. It further records that since then, the

respondent no.3 is in possession of the disputed land.

40. It is a case of Possession versus Possession. State

has admitted that the possession was given to the petitioner

(in lease cancellation order dated 31.03.1998). The

respondent no.3 claims that after stay granted by the

Commissioner in appeal, he has been in possession. Even

the petitioner has not been granted any lease and similarly,

the respondent no.3 is also not a lease holder. Under these

factual aspects, it cannot be said that the respondent no.3

is an illegal/unauthorized occupant of the disputed land

qua the Government property. If the petitioner was handed

over the possession by the State Administration, as recorded

in the order dated 31.03.1998 of the respondent no.2, and

thereafter, the respondent no.3 took over the possession, it

cannot be said that the respondent no.3 is exclusively an

unauthorized occupant of the disputed land. According to

the State, the possession was handed over to the petitioner.

In such a situation can't it be said that from the starting,

the petitioner is in possession of the disputed land; if

subsequently the respondent no.3 had taken over

possession, it is qua the petitioner only. They both had an

inter se dispute. It has not been decided, while granting

freehold rights to the respondent no.3 on 22.06.2018. Under

these circumstances, it cannot be said that the respondent

no.3 is an unauthorized/illegal occupant of the disputed

land qua the State because the State admits that they had

given possession of the disputed land also to the petitioner.

If the respondent no.3 is in possession of the disputed land,

he may be an unauthorized occupant qua the petitioner and

not qua the State.

41. Even the question that falls for consideration is

whether on 22.06.2018, the respondent no.2 had granted

freehold rights on the ground that the respondent no.3 is in

unauthorized occupation of it. It is not so. The impugned

order dated 22.06.2018, nowhere mentions that based on

illegal/unauthorized occupation of the disputed land, free

hold rights have been granted. In fact, this order records

that respecting the order dated 15.06.2016 of this Court,

passed in the petition, freehold rights were sanctioned.

There has been no question of grant of freehold rights by

respecting this Court order dated 15.06.2016 because by its

order dated 15.06.2016, passed in the petition, this Court

has not directed the respondent no.2 to grant freehold rights

in favour of the respondent no.3. What the Court had

directed was that any application that may be moved by the

respondent no.3 for grant of freehold rights, may be

considered as per law and in accordance with the New Nazul

Policy, 2011.

42. The respondent no.3 has filed a freehold deed

alongwith the counter affidavit. The second paragraph of

this free hold deed records that the respondent no.3 is a

lease holder. This statement is factually incorrect. It amply

speaks that the respondent no.3 was granted freehold rights

of the disputed land, assuming as if, he is a lease holder. It

is not correct statement.

43. In view of the foregoing discussion, this Court is

of the view that the whole premises of grant of freehold right

is factually incorrect. Therefore, order dated 22.06.2018 as

well as subsequent order dated 29.01.2022 deserves to be

set aside. Accordingly, the writ petition deserves to be

allowed.

45. The writ petition is allowed.

46. The impugned orders dated 22.06.2018 and

29.01.2022 passed by the respondent no.2 the District

Magistrate, Tehri Garhwal are quashed.

(Ravindra Maithani, J.) 04.09.2023 Jitendra