IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 685 OF 2001 (MS) Jag Pal Singh ……………Petitioner. Versus Sub Divisional Officer, Kashipur and another. ………..Respondents. Mr. Alok Singh, learned Sr. Advocate, assisted by Sri Gajendra Tripathi, learned counsel for the petitioner. Mr. H.M. Raturi, learned Standing Counsel for the respondents no. 1 and 2. 25th July, 2008 Hon’ble P.C. Verma, J. By means of present writ petition, the petitioner has challenged the order dated 25th April, 1989 passed by the Sub Divisional Officer, Kashipur, District Nainital (now Udham Singh Nagar). 2. Brief facts of the case are that petitioner’s father late Shri Gurmukh Singh was the tenure holder of plot No. 4 having an area 60 acres situated at Village Bantkheri and was in cultivatory possession over the same prior to the date of enforcement of Uttar Pradesh Zamindari Abolition and Land Reforms Act. Subsequently, after the enforcement of the Zamindari Abolition Act, his father became the tenure holder and thereafter, declared as Bhumidhar. 2 3. A dispute was raised by the Forest Department on account of a fictitious entry, which was challenged by the petitioner, which was challenged by the petitioner, on which, a claim was made by the Forest Department on the ground that a Notification was made under Section 4 of the Indian Forest Act declaring it to be reserved Forest. Against the said notification, an objection was filed by the father of the petitioner, which was rejected. 4. Thereafter, a revision was filed by the father of the petitioner, which was allowed by the District Judge, Kumaon and set aside the order of the Forest Settlement Officer and directed that the matter be decided after considering the objections and affording opportunity. 5. Pursuant to the directions of the District Judge, Kumaon, Forest Settlement Officer of Consolidation considered the evidence and came to the conclusion that the objector was in actual cultivatory possession since 1953, further as the declaration sough as reserved forest for the land was neither forest, nor waste land, hence, allowed the objection and released the said land in favour of father of the petitioner by an order dated 8th March, 1972. 6. Against the aforesaid order, an appeal was preferred by the Department before the District Judge, Kumaon, which was dismissed by him on 14th August, 1972. Against the said order, a Writ Petition being Writ Petition No. 106 of 1973 was preferred by the department before the Allahabad High Court, in which, after 3 considering the entire legal as well as the factual aspects of the matter, the Allahabad High Court dismissed the writ petition. 7. Further the petitioner filed a writ petition being Writ Petition No. 5871 of 1982 seeking a direction against the State of U.P. Sub Divisional Officer of the Forest Department of Western Circle No. 13 and the Divisional Forest Officer for a writ of mandamus directing them not to interfere in his possession and not to evict him forcibly from the same as a conspiracy was made to forcibly evict him. 8. In the aforesaid writ petition, Hon’ble High Court of Allahabad passed an interim order on 21st May, 1982 directing that “in the meantime, respondents shall not interfere with the possession of the petitioner over 60 acres of land in village Blaint Khori, Tehsil Bajpur, Distrit Nainital which they claim lies in the plot No. 4, but on the basis of survey made by the Forest Department, the respondents claim that a portion thereof lies in plot no. 3, without having reposes to proper legal proceedings. It was further directed that in the meantime, the petitioner shall also not cut any trees from the plot over which he claims to be in possession on change its nature in nay manner”. The said interim order was confirmed on 24th May, 1993. Thereafter, the said writ petition was allowed by the Allahabad High Court vide judgment and order dated 30th April, 1992. 9. During the pendency of the said writ petition, on the basis of earlier judgment, the petitioner filed a suit 4 for declaration – cum – correction before the Court of Sub Divisional Officer, Kashipur, District Nainital (Now Udham Singh Nagar), which was registered as Suit No. 51/1 of 1988-89. The suit was decreed and a direction for execution of the same was passed on 16th March, 1989. Pursuant to that, revenue papers were corrected and specific order was executed and carried out by the Executing Officer / Peshkar Bajpur and the name of the father of the petitioner was entered therein. Further a direction was passed for execution of the order, entering the name of the father of the petitioner and deletion of the entry of forest. Thereafter, father of the petitioner died in the year, 1994 and the petitioner who used to live at Punjab had to shift to Udham Singh Nagar to look after the agriculture. When the petitioner obtained the certified copy of the extract of Khatauni, he saw an entirey to the effect that the order in favour of the father of the petitioner dated 16th March, 1989 has been recalled. The petitioner made an enquiry and it came to his notice that one order has been passed on 25th April, 1989 whereby the execution made in respect of the order dated 16th March, 1989 has been recalled. Against the said order, the petitioner has come in the present writ petition. 10. Counsel for the petitioner has relied upon the judgments passed by the Allahabad High Court mentioned above, where the Allahabad High Court in Civil Misc. Writ Petition No. 106 of 1973 has observed as under: “The Forest Settlement Officer has after examining the evidence on record recorded a categorical finding that he land was being cultivated by opposite party no. 1 Gurmukh Singh. It was neither forest land nor waste land. This finding of fact was confirmed by the lower appellate court after examining the evidence afresh. In view of the concurrent 5 finding, recorded by both the authorities, it is clear that the land in dispute was neither forest land nor waste land. If the land in dispute is neither forest land nor waste land section 3 would not apply and therefore, it cannot be said that the view taken by the authorities was in any manner erroneous in law. It is not necessary to go into the question as to whether how much acres of land was leased out to the opposite party no. 1. It is open to the State Government Party No. 1. It is open to the State Government to challenge the right of Gurmukh Singh over the land which has been leased to him in a proper proceeding. So far as the notification under Section 4 of the Act is concerned, it can only be issued if it is forest land or waste-land. Since the finding is that the it is neither forest land nor waste land the authorities were right in releasing the land in favour of opposite party no.1. The State Government could not have declared the area as a reserved forest. In view of the above, I am of the opinion that no interference is called for the petition is accordingly dismissed. But in the circumstances of the case the parties are directed to bear their own cost.” 11. Further in Civil Misc. Writ Petition No. 5897 of 1982, the Hon’ble High Court of Allahabad directed the respondents not to interfere in the possession of the petitioner over 60 acres of land situated in Plot No. 4 of Village Bainthari, Tehsil Bajpur, District Nainital and further directed them not to evict the petitioner forcibly from the aforesaid land otherwise than in accordance with law. 12. Counsel for the petitioner has further submitted that the regarding reviewing of the order dated 16th March, 1989 was not given to the petitioner and the order dated 25th April, 1989 was passed illegally and arbitrarily. 13. I have taken into consideration the aforesaid judgments passed by the High Court of Allahabad, where a strict direction has been given by the Court that the petitioner shall not be evicted from the 60 acres of land except in accordance with law, but the Sub Divisional 6 Officer without adopting the due procedure of law and without serving any notice upon the petitioner has wrongly reviewed the order dated 16th March, 1989 and passed fresh order on 25th April, 1989. 14. Therefore, for the reasons disclosed above, the respondents are directed to restore the entry of the petitioner in pursuance of the order dated 16th March, 1989 (Annexure No. 4 to this writ petition). The order dated 25th April, 1989 passed by the Sub Divisional Officer (contained as Annexure No. 7 to the writ petition) is quashed. 15. Consequently, writ petition is allowed. No order as to costs. (P.C. Verma, J.) 25.7.2008 Rathour