IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 4746 OF 2001 (M/S) Harswaroop and others. …..………………Petitioners. Versus Additional Commissioner & others. ……….Respondents. Mr. M.S. Tyagi, learned counsel for the petitioners. Sri H.M. Raturi, learned Standing Counsel for the respondents no. 1 and 2. None is present for the respondent no. 3. 8.8.2008 Hon’ble P.C. Verma, J. By means of present writ petition, the petitioners have challenged the orders dated 22.6.1993 and 12.11.1991/30.9.1991 passed by the respondent no. 1 and 2 respectively. 2. Brief facts of the case are that proceedings under section 122-B of the U.P. Zamindari Abolition and Land Reforms act were initiated against the petitioners on the report submitted by the Lekhpal, wherein it has been stated that the petitioners have illegally occupied the land Gata No. 78/2/1 measuring about 4.097 Hectares of Village Rampur, Raighat, Pargana Jwalapur, Tehsil Laksar, District Haridwar in dispute in 1396 Fasli. On the basis of the said report, a notice under Rule 115 Gha was issued to the petitioner. Pursuant to the said notice, the petitioner put his appearance and contested the case denying the allegations made in the notice statingh therein that he has no concern with the land indispute and he has never sown the crop over the same nor he is in 2 possession over the same and he never remained in possession over the said land. Petitioner in support of his case examined himself as D.W.1 and Sri Hari Singh as D.W.2, who submitted that the petitioner never remained in possession over the land in dispute and never sown the crop over the same and he has never seen the disputed land and river Ganges is flowing over the disputed land. The respondent no. 2 vide order dated 12.11.1991 directed the ejectment of the petitioner no. 1 from the land in dispute and further directed him to pay a damages of Rs. 8,000/- and Rs. 5/- towards the cost of notice. Against the said order, respondent no. 2 filed a revision before the respondent no. 1 along with application under Section 5 of the Indian Limitation Act on the ground that on 23.1.1992 he came to know about the order dated 12.11.1991 and then he immediately applied for the certified copy of the judgment, which was received by him on 4.9.1992. Respondent no. 1 dismissed the revision of the petitioner no. 1 on the ground of delay of seventeen days as well as on the merits by a common judgment dated 22.6.1993. 3. Heard counsel for both the parties. 4. Learned counsel for the petitioners has made a statement that the petitioners are not in possession over the land in dispute. 3 5. In the case of Ram Singh and others Vs. State of U.P. and others reported in 1987 R.D. Page 203, it has been observed that when the applicant did not claim possession, the damages should not be imposed upon him/her. Relevant paragraph of the said judgment is quoted below: “After hearing the learned counsel for the petitioners in this case I think no damages should be realized from the petitioners in the facts and circumstances of the case mentioned above. In Hans Raj v. Gaon Sabha (1), a learned Member, Board of Revenue has indicated in his judgment vide para 6 as follows:- “When the applicant did not claim possession damages could not have been imposed on the applicant in view of Rajaswa Anubhag-12 G.O. No. 8639/75-Sa- 12-2384/75, dated September 10, 1975 and Board’s Order No. 11693/G-5-639/73, dated October 22, 1975” 6. Therefore, since, the petitioners are not in possession over the land in dispute as per the statement made by learned counsel for the petitioners at Bar, the order passed by the respondents no. 1 and 2 on 22.6.1993 and 12.11.1991/30.9.1991 respectively are affirmed, but the damages / penalty imposed upon petitioner shall not be recovered in view of the judgment cited above. 7. Accordingly, writ petition is dismissed. No order as to costs. (P.C.Verma, J.) 8.8.2008 Rathour 4