1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2121 of 2009 (M/S) State of Uttarakhand through Collector, Udham Singh Nagar, Uattarakhand Sashan, Dehradun. ……Petitioner. Versus 1. Sri Ganesh Bairagi son of Ganga Charan resident of Village Mohanpur no. 1, Tehsil Gadarpur, District Udham Singh Nagar. 2. Smt. Rajwati wife of Sri Malkhan Singh 3. Smt. Prevesh wife of Sri Jageer Singh. 4. Smt. Sumitra wife of Sri Karam Singh Residents of Village Maheshpur, Tehsil Gadarpur, District Udham Singh Nagar. 5. The Additional Collector, Udham Singh Nagar. 6. The Survey Naib Tehsildar, Gadarpur Area, District Udham Singh Nagar. …..Respondents. Sri R.C. Arya, Brief Holder for the State-petitioner. Date:- December 16, 2009 Hon’ble B.S. Verma J. Heard learned counsel for the State-petitioner. By means of this writ petition the petitioner has sought a writ in the nature of certiorari for quashing the impugned order dated 20.10.2008 passed by the Additional Collector, Udham Singh Nagar (Annexure No. 5 to the writ petition) whereby the revision filed by the State-petitioner has been rejected and also for quashing the order dated 12. 2. 1997 passed by the Survey Naib Tahsildar (Annexure No. 1 to the writ petition) Brief facts giving rise to the present writ petition are that during the settlement proceedings, the Survey Naib Tahsildar, Gadarpur District Udham Singh Nagar, vide his 2 order dated 12.2.1997, recorded the names of respondent nos. 2 to 4 and expunged the names of respondent no. 1 on the basis of compromise between Pradhan and Land Management Committee. Aggrieved by the order dated 12.2.1997, the State-petitioner preferred revision under Section 219 of U.P. Land Revenue Act before the Record Officer, Udham Singh Nagar. Subsequently, the revision was transferred to the court of Additional District Magistrate, Udham Singh Nagar. The revision was allowed on 11.3.2005. Further aggrieved by this order, the respondent nos. 2 to 4 have preferred revision before the Commissioner, Kumaon Division, Nainital who remanded back the matter to the Record Officer to render again decision keeping in view the points- whether the land in question belongs to the State Government or it is a land of ‘Varg’ 1(a) belonging to the original tenure holder and if the land belongs to the tenure holder whether on the basis of compromise mutation can be made without paying the stamp duty as per the provision of the Stamp Act. The Additional District Magistrate again heard the revision and after hearing to the parties came to the conclusion that the land is a bhumidhari land belonging to ‘Varg’ 1(a) and it does not belong to State Government or Gaon Sabha. This fact has not been disputed by the State counsel that the land does not belong to the State. The only objection was raised that without paying the stamp duty by mutual collusion the land has been transferred on the basis of the alleged compromise. The Record Officer keeping in view the provision of Rule 26 of U.P. Land Revenue (Survey & Record Operation) Rules, 1978 and also Section 54 of the U.P. Land Revenue Act has held that on the basis of the conciliation proceedings in presence of two members of the Land 3 Management Committed such order could be passed. The Rule 26 of the U.P. Land Record (Survey & Record Operations), Rules 1978 reads as under:- “ 26.(1) The Survey Naib-Tahsildar shall then proceed to make inquiries into all the disputes and claims (other than clerical mistakes, and also objections, if any, received in respect of entries made in the Khatauni slips in the village itself. In deciding disputes on the basis of conciliation under Section 54, he shall record the terms of conciliation in the presence of atleast two members of the Land Management Committee in the relevant column of the list of mistakes and disputes in Survey Form VI (Part II). These terms shall be read over to parties concerned and their signatures or thumb-impressions obtained. The members of the Land Management Committee present shall also sign the terms of conciliation. The Survey Naib-Tahsildar thereafter shall record orders in the relevant column of Survey Form VI deciding the disputes in terms of conciliation specifying the precise entries to be made in records. No ex parte order or order in default or order in respect of land belonging to the State Government or vested in Gaon Sabha shall be passed by the Survey Naib-Tahsildar. (2) The cases that cannot be disposed by the Survey Naib-Tahsildar in terms of conciliation in accordance with the provision sub-rule (1) shall be referred by him to the Assistant Record Officer for disposal. While doing so the Survey Naib- Tahsildar may fix a date and place for the disposal of the cases by the Assistant Record 4 Officer and communicate the same to the parties concerned before him and issue notices to the parties not so present.” By a perusal of Rule 26 (1) as quoted above it reveals that no ex parte order or order in default or order in respect of land belonging to the State Government or vested in Gaon Sabha shall be passed by the Survey Naib- Tahsildar ex-parte. As has been mentioned above that the land do not belong to the State or Gaon Sabha. Learned Additional Collector has held that in exercise of his jurisdiction the Survey Naib Tahsildar on the basis of compromise that was made by the parties before the Gaon Sabha Pradhan and member of the Land Management Committee as has been mentioned in the impugned order itself, passed the impugned order under Section 54 of the U.P. Land Revenue Act. Accordingly the Additional Collector rejected the revision preferred by State- petitioner, vide his order dated 20.10.2008. Aggrieved by the order dated 20.10.2008 passed by the Additional Collector/Additional District Magistrate, the petitioner filed this writ petition. Both the orders, i.e. order dated 20.10.2008 passed by the Additional Collector as well as the order dated 12.2.1997 passed by the Survey Naib Tahsildar are impugned in the writ petition. I have perused impugned orders as well as the materials available on record. This fact is not disputed that the land of the respondent no. 1 bhumidhari land with transferable rights of ‘Varg’ 1(a) and the land did not belong to the State or Gaon Sabha. This fact is also not disputed that the Survey 5 Naib Tahsildar, vide his order dated 12.2.1997, on the basis of compromise expunged the name of respondent no. 1and recorded the name of respondent nos. 2 to 4. The only grievance of the State petitioner is that no such order could be passed without paying the stamp duty or by executing sale deed. After the remand of the case the Additional Collector/Additional District Magistrate, Udham Singh Nagar has categorically held that the Survey Naib Tahsildar has jurisdiction to pass such order as per Rule 26 of the U.P. Land Revenue (Survey and Record Operation) Rules, 1978. The impugned order dated 12.2.1997 passed by the Naib Tahsildar itself speaks that compromise was made before the member of the Land Management Committee and in presence of Pradhan. Section 54(5) of the U.P. Land Revenue Act reads as under:- “54(5). The Naib-Tahsildar shall- (a) where objections are filed in accordance with sub-section (3) or sub-section (4) after hearing the parties concerned; and (b) in any other case after making such inquire as he may deem necessary; Correct the mistake, and settle the dispute, by conciliation between the parties appearing before him and pass order on the basis of such conciliation.” 6 As per provision of Section 54(5) of the U.P. Land Revenue Act the Survey Naib Tahsildar can correct the mistake and settle the dispute between the parties appearing before him and pass order on the basis of conciliation. In view of discussions made in foregoing paragraphs, I find no illegality and infirmity in the impugned orders. Since the order has been passed by Survey Niab Tahsildar in exercise of jurisdiction as per Section 54 (5) (b) of the Land Revenue Act and Rule 26 of Land Record (Survey and Record Operation) Rules, 1978, the revision preferred has rightly been rejected by the Revisional court. The writ petition is devoid of merit and the same is liable to be dismissed. The writ petition is dismissed in limine. All the pending applications stand disposed of accordingly. (B.S. Verma, J.) 16.12.2009 RMY