Uttarakhand High Court
3 September vs Bachan Singh & Others on 3 September, 2024
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2024:UHC:6332
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Misc. Single No. 2322 of 2024
03 September, 2024
Rajendra Kumar and others. ....Petitioners
Versus
Bachan Singh & others .....Respondents
Presence:-
S R S Gill, Advocate for the petitioners
Mr. J.S. Bisht, Standing Counsel for the State of Uttarakhand/
respondent nos. 2, 4, 5 & 6
Mr. Sandeep Kothari, Advocate for respondent no. 3.
Mr. Siddhant Manral, Advocate for respondent no. 7
JUDGMENT
Hon'ble Manoj Kumar Tiwari, J.
Fourteen (14) shops were constructed by Kumaon
Anusuchit Janjati Vikas Nigam at Bazpur, before 1981,
which were meant to be allotted only to the persons
belonging to Buksa Tribe.
2. It is not in dispute that these shops were allotted
to persons belonging to Buksa Community. Petitioners, who
do not belong to Buksa Tribe/Community, came to occupy
these shops, and according to them, they are in possession
of the shops in question, since last more than thirty years.
Petitioners are aggrieved by order dated 25.07.2024 passed
by Commissioner, Kumaon Division, whereby Kumaon
Mandal Vikas Nigam has been directed to take necessary
steps for eviction of unauthorized occupants from the shops
in question and to ensure that these shops are allotted to
persons for whom they were constructed. Thus, feeling
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aggrieved, petitioners have approached this Court
challenging the order passed by Commissioner, Kumaon
Division. They have also sought a writ of mandamus to
formulate plan for the redevelopment of the entire Buksa
Bazar and to accommodate petitioners along with persons
belonging to Buksa Community.
3. It is not in dispute that ten writ petitions filed by
different persons belonging to Buksa Tribe were disposed of
by this Court, vide order dated 21.05.2024, by directing
Commissioner, Kumaon Division to look into the matter and
pass appropriate order. Operative portion of the said order
is reproduced below:-
8. It is not in dispute that Kumaon Anusuchit Janjati
Vikas Nigam, which was a subsidiary of Kumaon Mandal
Vikas Nigam has been wound up, and all its assets and
liabilities have gone to Kumaon Mandal Vikas Nigam.
9. The stand taken by Sub Divisional Magistrate, Bazpur
in his counter affidavit is that since the shops were
allotted by respondent no. 2, therefore, respondent no.
2 alone can pass order for eviction of the unauthorised
occupants.
10. Learned counsel appearing of Kumaon Mandal Vikas
Nigam submits that since the land has been recorded in
the name of Nagar Palika Parishad Bazpur, therefore,
Kumaon Mandal Vikas Nigam is facing difficulty in
passing order of eviction against the unauthorised
occupants.
11. From the stand taken by the Sub Divisional
Magistrate as well as Kumaon Mandal Vikas Nigam, it is
revealed that certain persons, who are not entitled to
remain in possession of the shops, are occupying these
shops, which are meant for persons belonging to Buksa
Community.
12. Having regard to the facts and circumstances of the
case, the writ petition is disposed of with a direction to
the Commissioner, Kumaon Division to look into the
matter and pass appropriate order as per law within
eight weeks, but only after affording opportunity of
hearing to the persons likely to be affected by his order.
4. Some persons (petitioners in these writ petitions)
filed Special Appeal No. 192 of 2024 challenging the final
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order dated 21.05.2024 passed in WPMS No. 2071 of 2017
and other connected petitions. The Division Bench modified
the order passed by writ court to the following extent:-
"That a direction is being given to the Commissioner,
Kumaon Division to look in to the matter and pass
appropriate order as per law with eight weeks, but only
after affording opportunity of hearing to the persons
likely to be affected by his order. It is further directed
that if adverse order is passed against the appellants,
they will have 15 days' time to take appropriate steps in
accordance with law."
5. It is not in dispute that petitioners were given
opportunity of hearing by the Commissioner, Kumaon
Division before passing the impugned order. The order
passed by Commissioner on 25.07.2024 has not been
implemented so far, in view of the direction issued by
Division Bench that petitioners shall be given fifteen days'
time for seeking judicial remedy against the order to be
passed by the Commissioner.
6. Perusal of the order passed by Commissioner
reveals that petitioners had taken the plea that they have
purchased the shops from the original allottees, however,
they could not substantiate this contention before learned
Commissioner. Since petitioners could not produce any
document to justify their possession over the shops in
question, therefore, learned Commissioner returned a
finding that petitioners are unauthorizedly occupying the
shops in question. It is admitted position that these shops
were constructed for the benefit of members of Buksa
Tribe by Kumaon Anusuchit Janjati Vikas Nigam, out of the
funds provided by the State Government. The land, over
which these shops are constructed, also belongs to the
State Government, therefore, the persons, to whom the
shops were allotted, have no authority to sell or dispose of
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these shops. None of the petitioners belongs to Buksa
Community, therefore, their possession, howsoever long,
will not create any title in their favour.
7. Learned counsel for the petitioners contended
that period of 30 years for which shops were leased out to
original allottees expired in the year 2011, and, thereafter,
petitioners became lessee in respect of the shops in
question and their status as lessee cannot be taken away
by the impugned order.
8. Learned State Counsel disputes the said
contention and submits that since the shops were
constructed by Kumaon Anusuchit Janjati Vikas Nigam for
the benefit of persons belonging to Buksa Tribe, therefore,
even if the term of lease granted to the original allottees is
over, then also petitioners will not get any right in these
shops and these shops are required to be allotted to
members of Buksa Community alone; since petitioners do
not belong to Scheduled Tribe, therefore, they do not have
any right in these shops and they are liable to be evicted.
9. This Court finds substance in the submission
made by learned State Counsel. Before learned
Commissioner, petitioners were unable to show the
authority under which they were occupying the shops in
question, therefore, learned Commissioner rightly held
that the petitioners are unauthorizedly occupying the
shops in question. There is nothing on record to show that
the finding recorded by learned Commissioner is
erroneous or perverse. Thus, any interference with the
impugned order dated 25.07.2024 would not be
warranted.
2024:UHC:6332
10. In such view of the matter, there is no scope for
interference with the impugned order. The writ petition
fails and is dismissed. No order as to costs.
(Manoj Kumar Tiwari, J.)
03.09.2024
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Date: 2024.09.05 10:02:21 +05'30'
