Unknown vs State Of Uttarakhand
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Uttarakhand High Court

Unknown vs State Of Uttarakhand on 21 May, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
                       Writ Petition (MS) No. 2965 of 2023

Bharat Heavy Electricals Limited BHEL.
                                     ..................... Petitioner.

                                            Versus

State of Uttarakhand
and others.                                              ...............Respondents.
Present:
Mr. V.K. Kohli, learned senior counsel assisted by Mr. B.S. Adhikari, learned counsel for the
petitioner.
Mr. Yogesh Tiwari, learned Additional C.S.C. for the State.
Mr. Rajendra Dobhal, learned senior counsel assisted by Mr. Siddhartha Sah, learned
counsel for the intervener.


Hon'ble Mr. Justice Rakesh Thapliyal, J.

1. The relief no. 2 as sought in this petition is to seek a direction to the District Magistrate, Haridwar, to follow the demarcation done earlier on 14.09.2020 of the land of BHEL of 13.4 hectare in Khasra no. 451.

2. Annexure-8 (Page 116-119) is the demarcation report along with Naksha Nazri dated 14.09.2020 signed by the revenue officials and the representative of the BHEL and rehabilitation department.

3. The dispute in respect of the land of Khasra no. 451 having area of 21.7 hectare out of which 8.308 belong to Irrigation department and the remaining 13.4 hectare belongs to BHEL and there is no dispute on this.

4. The Naksha nazri, which is part of Annexure 8 is of the entire land area i.e. 21.7 hectare of Khasra no. 451 and there is no description boundaries to identify the boundary of Irrigation department and BHEL.

5. Earlier in the year of 2008 demarcation proceeding was initiated, which is reflected from the order passed by the Assistant Collector (1st), Haridwar dated 17.01.2009 passed in Case No. 93/2007-08 'Vishambher Singh and Others vs. BHEL and Others', is arising out of a proceeding under Section 41 of L.R. Act, wherein, a report was forwarded by Tehsildar on 13.06.2008 along with the Naksha Nazri and the measurement report of the Revenue Inspector dated 28.04.2008 wherein, BHEL filed their objections. Ultimately, the Deputy Collector by order dated 17.01.2009 accept the demarcation report by rejecting objections of BHEL by observing that the land measuring 8.308 hectare, which belongs to Irrigation department is lying vacant and simultaneously Estate department of BHEL was restrained from taking unauthorized possession over the vacant land of Irrigation department. The operative portion of the order of Deputy Collector dated 17.01.2009 is being reproduced herein as under:

"jktLo fujh{kd Tokykiqj rglhy gfj}kj dh i{kksa dh mifLFkfr esa dh x;h iSek;"kh vk[;k fnukafdr 28-4-2008 dks rglhynkj gfj}kj }kjk fnukad 13- 6-2008 e; uD"kk utjh layXu djrs gq, izsf'kr dh x;h gSA jktLo fujh{kd dh vk[;k fnukafdr 28-4-2008 ij ch0,p0bZ0,y0 dh vksj ls mlds vf/koDrk ds }kjk vkifRr izLrqr dhA Rkglhynkj gfj}kj dh vk[;k fnukad 13-6-2008 ij mHk; i{kksa ds fo}ku vf/koDrkvksa dks lquk x;k rFkk i=koyh dk voyksdu fd;k x;k ftlls Li'V gS fd [k0 ua0 372 dks xzke Tokykiqj dh vksj ls xzke Hkxruiqj vkfcniqj mQZ bczkfgeiqj nksuksa dh vksj ls iSek;"kh dj ekSds ij dk;e fd;k x;kA ftlds vk/kkj ij [kljk uEcj 451 o 452 dh fLFkfr Hkh Li'V dh x;h vkSj iSek"k ls [kljk ua0 372 ls ch0,p0bZ0,y0 foHkkx dk dksbZ rkYyqd okLrk gksuk ugha ik;k x;kA ekSds ij Hkwfp= ds vuqlkj [k0ua0 372 lgh ik;k x;kA [kljk uEcj 451 o 452 Hksy lEink foHkkx dh lEifRr gSA [k0ua0 372 flapkbZ foHkkx dh lEifRr gSA [kljk uEcj 451fe esa 8-308 gs0 Hkwfe flapkbZ foHkkx dh gS o [kljk uEcj 451fe0 {kss=Qy 10-902 gs0 Hkwfe Hksy lEink foHkkx dh Hkwfe gSA flapkbZ foHkkx dh Hkwfe ekSds ij [kkyh iM+h gSA ftlls Hksy lEink dk dksbZ lEcU/k ugha gSA jkTkLo fujh{kd gfj}kj iSek;"k i{kksa dh mifLFkfr esa rFkk nks LFkkbZ fcUnqvksa ls dh x;h gS] tks Lohdkj fd;s tkus ;ksX; gSA ch0,p0bZ0,y0 lEink foHkkx }kjk vkokl fodkl dks gLrkUrfjr dh x;h Hkwfe [kljk ua0 451 fe0 jdck 10-902 gs0 Hkwfe esa vkokl fodkl }kjk dkyksuh LFkkfir dh tk pqdh gS vkSj [kkyh Hkwfe flapkbZ foHkkx dh gSA mijksDr foospuk ds vk/kkj ij jkTkLo fujh{kd Tokykiqj }kjk dh x;h iSek;"k fnukafdr 28-4-2008 Lohdkj dh tkrh gSA [k0 ua0 451fe jdcbZ 8-308 gs0 Hkwfe ekSds ij [kkyh iM+h gqbZ flapkbZ foHkkx dh gSA jkTkLo fujh{kd dh vk[;k

fnukafdr 28-4-2008 ds vk/kkj ij [k0 ua0 451fe esa flapkbZ foHkkx dh [kkyh iM+h Hkwfe ij ch0,p0bZ0,y0 lEink dsk vukf/kd`r dCtk djus ls jksdk tkrk gSA i=koyh ckn vko";d dk;Zokgh nkf[ky nQrj gks;sA"

Subsequently, aforesaid order of the Deputy Collector dated 17.01.2009 was assailed by the BHEL before the Board of Revenue under Section 219 of L.R. Act, which was dismissed on 22.06.2010.

6. Thereafter being aggrieved with the proceeding initiated under Section 41 of L.R. Act and the order of Deputy Collector dated 17.01.2009 as well as the order of Board of Revenue dated 22.06.2010, the BHEL preferred a writ petition (MS) No. 1309 of 2010 before this court, which was dismissed on 22.08.2023 by observing that proceeding under challenge is summary proceedings i.e. proceeding under Section 41 of L.R. Act and as such the writ petition would not be maintainable and only recourse available to the petitioner (BHEL) would be to resort the proceeding under Section 40A of L.R. Act. While dismissing the writ petition the Coordinate Bench also give liberty to the petitioner (BHEL) to avail the remedy as providing under Section 40A of L.R. Act.

7. The order passed by the Coordinate Bench dated 22.08.2023 in WPMS No. 1309 of 2010 was never been assailed by the petitioner (BHEL) and as such attains finality, however, it has been informed that the petitioner (BHEL) availed the liberty after filing of the instant writ petition, however, Mr. Rajendra Dobhal pointed out that instead of availing remedy under Section 40A again the BHEL availed remedy under Section 41 of L.R. Act, though the proceeding under Section 41 of L.R. Act already attains finality by the judgment dated 22.08.2023, which was never been challenged.

8. On this Mr. V.K. Kohli submits that it is wrong to say that BHEL again availed the remedy under Section 41 and not under Section 40A of L.R. Act.

9. From the aforesaid discussion it is now very much clear that the order of the Deputy Collector (1st), Haridwar, dated 17.01.2009 is made absolute and affirmed by the Coordinate Bench of this court by judgment dated 22.08.2023. Now, since both the parties have not disputed that the land area 8.308 hectare of Khasra No. 451 belongs to Irrigation department, which was lying vacant as per order dated 17.01.2009, therefore the only issue still remains about location of 8.308 hectare of land of Khasra No. 451 and since location was determined by the Revenue Inspector, Jwalapur in its measurement report dated 28.08.2008 and the report of the Tehsildar dated 13.06.2008 accompanied with Naksha Nazri report a proceeding under Section 41 of L.R. Act in Case No. 93/2007-08 'Vishambher Singh and Others vs. BHEL and Others' in which the BHEL was one of the party, therefore, the BHEL is directed to place the report of Revenue Inspector dated 28.04.2008 as well as report of Tehsildar dated 13.06.2008 along with Naksha Nazri on the next date.

10. Put up this matter on 25.06.2025 at 2:00 PM.

11. Interim order shall continue till the next date of listing.

(Rakesh Thapliyal, J.)

21.05.2025 PR