IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1217 (M/S) of 2010 1- Smt. Shibani Prakash W/o Dr. Parmarth Prakash 2- Smt. Manjari Chowdhari W/o rajesh Chowdhari Both resident of 35-A, Canal Road, Kishanpur, Dehradun -- Petitioners Versus Union of India, Ministry of Environment 127, Infantry Battalion Ecological Task Force New Delhi and others -- Respondents Mr. A.D. Saunders, and Mr. Raveendra Singh Bisht, Counsel for petitioners. Mr. V.B.S. Negi, Asst. S.G. on behalf of respondents 1 to 4. Mr. P.C. Bisht, Brief Holder on behalf of respondent No.5. [Hon’ble B.S. Verma, J. (Oral)] By means of this petition, the petitioners have sought the following relief:- 1- To issue a writ, order or direction in the nature of certiorari quashing the order dated 9-6-2010, passed by District Magistrate, Dehradun (Annexure No. 19 to the writ petition), in compliance of order dated 19-4-2010, passed by this court in Writ Petition No. 5646 of 2010 (M/S). 2- To issue a writ in the nature of mandamus directing the respondents to restore back the possession of the land purchased by the petitioners vide three registered sale deeds dated 7-4-2007 (Annexure No.5 to the writ petition), forthwith. 3- To issue a writ in the nature of mandamus directing the respondents not to deprive the petitioners from their property purchased vide three registered sale deeds dated 7.4.2007. 4- To issue a writ in the nature of mandamus directing the Eco Task Force to restore back the possession of the land to the petitioners or to the District Magistrate Dehradun as per their undertaking given vide letters dated 17-2-2007 and 30-6-2009 (Annexure Nos. 8 and 13 respectively to the writ petition). 5- To issue any other writ, order or direction as this Court may deem fit and proper in the facts and circumstances of the case. 2 Briefly stated the facts, giving rise to this writ petition, according to the petitioners, are that on account of illegal mining and mining otherwise also, the environment and ecological balance in Mussorrie Hill Range, forming part of the Himalayas, the environment conscious Kendra viz. Rural Litigation and Entitlement Kendra, Dehradun along with one Devaki Nandan Pandey filed writ petition Nos. 8209 and 8821 of 1983 (Dehra Dun Querries Case) against the State of U.P. before the Hon’ble Supreme Court of India. The Hon’ble Apex Court vide its order dated 12-3-1985 took a very serious view regarding illegal mining in respect of limestone and excavation which did not go un-noticed, and constituted various committees for shutting down limestone queries. The copy of judgment dated 12-3-1985 has been annexed as Annexure No.1 to the writ petition. Pursuant to the aforementioned judgment, the Hon’ble Apex Court, also constituted a Monitoring Committee to monitor the afforestation Programme. It is stated in para-6 of the writ petition that the responsibility of carrying out directions of Hon’ble Apex Court, Chief Forest Conservator (Garhwal) U.P. Dehradun vide his letter dated 6-4-1992, addressed to the Chief Secretary, Uttaranchal Development Department, U.P. Lucknow intimated that in view of the meeting of the committee held on 21.3.1992, the technical guidance and supply of necessary materials to the Eco Task Force with effect from 1.4.1992 would be given by Forest Department. Copy of the letter dated 6.4.1992 has also been annexed as Annexure No.3 to the writ petition. The decision was communicated vide letter dated 25-5- 1997 to the Chief Forest Conservator Garhwal U.P. Dehradun. The land in dispute mentioned in the writ petition is situated in village known as Kyarkuli Bhatta, Pargana Kendriya Doon, which is an agricultural Non-Z.A. land measuring 14.6540 hectares entered in Khasra No. 3190, Khata Khevat No. 65. Part and parcel of the land is owned by various members of the village to the extent entered in the revenue records. It is also alleged that the petitioners are floriculturists by profession growing exotic flowers. They have purchased the plots of land situated in the said village by way of three sale-deeds, details of which has been given in para-12 of the writ 3 petition, which have been annexed as Annexure No.5 collectively to the writ petition. On the basis of the sale deeds the names of the petitioners were mutated in the revenue record and the mutation orders were also annexed as Annexure No.6 to the writ petition. It is further stated in para-15 of the writ petition that the Eco Task Force which had been assigned the responsibility of closing down the mines and for afforestation, set up its camp on the aforesaid land of village Kyarkuli Bhatta on its own sweet will without seeking any permission either from the District Magistrate or the representative of the village or from any other authority for carrying out the directions of the Hon’ble Apex Court. This land has been utilized by respondent Nos. 2 and 3 without adopting the proceeding of land acquisition and no acquisition of the land was also made. The land purchased by the petitioners also include the land on which the Eco Task Force has set up its camp. The petitioners have made several requests to the Officers of the Eco Task Force to vacate the area, but no heed was paid to their requests. It is further stated in para-19 of the writ petition that the mining activity had been stopped as far back as in the year 1997 and saplings had been planted about a decade back and all the work and directions given by Hon’ble Apex Court had been completed, yet the Eco Task Force continues to remain in possession of the land of the petitioner without any authority of law. Therefore a legal notice was issued on 17.1.2007 through counsel Sri Vikash Chandra to Lt. Col. Vijay Jaiswal, Commandant, Eco Task Force directing that the land be vacated within 15 days from the date of receipt of notice, failing which necessary legal action would be taken against the authorities. Copy of notice dated 17-1-2007 has been filed as Annexure No.7 to the writ petition. Apart from the above, the petitioners also approached to the Mining Department in order to avoid any controversy, the petitioner No.1 also approached the Senior Mining Officer, Dehradun vide representation dated 7.11.2008 with a request that the land purchased by her should be got vacated and to restore its possession to her. In reply thereto Senior Mining Officer, Udyog Directorate, Uttarakhand wrote a letter dated 18-11-2008 to the Divisional Forest Officer, Mussorrie, Dehradun requesting for taking necessary action to take 4 back the possession of land from Eco Task Force. Copy of letter dated 18-11-2008 has been annexed as Annexure No.11 to the writ petition. Another representation dated 8.12.2008 was made by petitioner No.1 to the D.F.O. Mussorrie Forest Division, Dehradun requesting him to restore the possession of petitioner’s private land to petitioners after getting it vacated from Eco Task Force. The information was also sought under R.T.I. Act from the Project Officer as to under what and whose authority was the Task Force in possession of petitioners’ land. The Project Officer vide letter dated 30-6-2009 addressed to the District Magistrate, Dehradun again requested for returning the possession of land. The District Magistrate took no action in the matter. A legal notice was also issued on 29-7- 2009 to the Project Officer, 127 Territorial Army Eco Task Force, Dehradun directing him to hand over the land back to the petitioners, copy of which has been filed with this petition as Annexure No. 14. But no heed was paid. Again the petitioner No.1 made a representation to the District Magistrate on 2-9-2009 to enable the petitioner to get back her land from unauthorized occupation of Eco Task Force, copy of which has been annexed as Annexure No.15 to the writ petition. As the representation was not decided, therefore, writ petition No. 546 of 2010 (M/S) Smt. Shibani Prakash and another versus Union of India and others, was filed under Article 226 of the Constitution of India, and this court vide order dated 19-4-2010 disposed that writ petition with the direction to the Collector, Dehradun to decide the representation in accordance with law considering the letter dated 30-6-2009, of the Eco Task Force. The representation was rejected by the District Magistrate, therefore, the petitioners have approached this court for quashing of the order passed by District Magistrate as well as issuance of mandamus to hand over possession of the land in question. Counter affidavit has been filed by the respondents on 9-9- 2010. The court was not satisfied with the answer given in that counter affidavit. Therefore, this court issued directions to the respondents by order dated 15-6-2011, as under:- “The averment made by the petitioner in para No.57 and 58 of the writ petition is that the Senior Mining Officer, vide letter dated 10- 5 11-2008, addressed to Divisional Forest Officer has submitted the list of mines and mining area in which the land of petitioner does not figure. The letter to this effect is annexed as Annexure 20 to the writ petition. Further, the averment has been made in para No. 58, that the Department of Geology, Government of U.P. vide its letter dated 18-4-1985 addressed to District Magistrate, Dehradun had also submitted a list of the mines and the mining areas in which also the land of the petitioners does not figure. The copy of the list has also been annexed as annexure-21 to the writ petition. The District Magistrate in para no. 51 of the counter affidavit gave reply while the petitioners have specifically pleaded in the writ petition that the land of the petitioner was occupied for its own use by the Eco Task Force to carry out the operation in the area which was transferred under the direction of the Apex Court. This court vide its order dated 30-6-2009 passed in writ petition No. 546 of 2010(M/S) directing the District Magistrate to take decision on the representation of the petitioner considering the letter dated 30-6-2009. In the impugned order dated 9-6-2010, which has been passed in compliance of the order of this court the District Magistrate has observed in its order that the Apex Court ordered on 12-3-1985 that 31 mining lease were closed and be handed over to the Eco Task force to rehabilitate, forestation and soil conservation. The District Magistrate, has further observed in its order that the Monitoring Committee of the Supreme Court is monitoring the work of Eco Task Force carrying out by the Eco Task Force and Forest Department. The representation of the petitioners has been rejected by the District Magistrate Dehradun on the ground that the land in question cannot be returned without further direction of the Hon’ble Supreme Court in the matter and until the direction of the State of Uttarakhand is received to take possession of the said mining area from the Eco Task Force. The specific case of the petitioners is that the plots pertaining to the petitioners had not been included in the plots which were handed over to the Eco Task Force. The petitioners have also filed the list of those plots of mining lease, which were handed over to the 6 Eco Task Force by the order of Apex Court. In support of his contention the letter dated 17-2-2007 written by Sri Vijay Jaiswal Lt. Col. Commanding Officer to the Advocate of the petitioner Sri Vikas Chand has been filed. According to the petitioner the plots of the petitioners were occupied by the Eco Task Force for their own personal use, the letter dated 8-12-2008, written by the petitioner to the District Forest Officer, Mussorrie has also been filed. In the facts of the case to resolve the controversy of the suit it is necessary in the interest of justice, fifth respondent District Magistrate, Dhradun has to give a specific answer of the paras No. 57 and 58 by filing supplementary counter affidavit along with relevant record and give specific reply whether the plots of the petitioners were ever been handed over by the direction of the Apex Court to the Eco Task Force or that were occupied by the Eco Task Force for their personal use without any acquisition proceedings and without any order of competent officer and shall also explain as per the record, which plots were included in the list which were handed over under the direction of the Apex Court in what manner and under what orders the plots of the petitioners have been occupied by the Eco Task Force. The supplementary counter affidavit be filed positively within a period of 4 weeks, if not filed within the aforesaid period, then the fifth respondent, the District Magistrate, Dehradun shall remain present in person before this court on 18.7.2011. List this petition on 18-07-2011 for admission/orders.” In response to the aforesaid directions, supplementary counter affidavit has been filed by respondent No.5, the District Magistrate Dehradun. This fact has been admitted that the petitioner’s name is recorded as tenure-holders in Khasra No.3190 of village Kyarkuli Bhatta. This fact is also not disputed that Eco Task Force carried out afforestation work in part of Khasra No. 3190, but it is no clear whether the work of plantation/afforestation has been carried out by the Eco Task Force on the said 2.30 hectare land, which belongs to the petitioners. Contrary reply has been given and the District Magistrate is not clear on the issue whether on the land belonging to petitioners, 7 the work has been carried out by the Eco Task Force or not. It is further stated in para- 4-A that plot No. 3190, yet has not been demarcated therefore the claim of handing over the possession over 2.30 hectares land cannot be sustained. It is also stated that on 31.5.2010 the answering respondent has also written letter to the Secretary of the Monitoring Committee for seeking guidelines. In the said letter he has mentioned that unless the instructions are issued by the State Government for taking back the possession of the land in question from Eco Task Force it is not possible for the respondent to take decision at his level. In reply to para Nos. 57 and 58 of the writ petition, averments were made in para No.4 of the supplementary counter affidavit, which is quoted below:- “A- That in reply to para 57 of the writ petition it is submitted that in the letter dated 10-11-2008 sent by the Senior Mining Officer to the Divisional Forest Officer, Mussoorrie Division, Mussoorie, Dehradun only the Mining Patta Nos. were included irrespective of the Khasra numbers. The Mining Patta Nos. 23, 25, 20, 100, 24, 21, 27, 104, 28 and 97 are situated in village Kyarkuli Bhatta which also include the 2.30 hectare land of the petitioner. Therefore, the contention of the petitioner that her land does not figure in the said letter dated 10.11.2008 of the Senior Mining Officer is incorrect. Since the petitioner is co- tenure holder in khasra no. 3190, village Kyarkuli Bhatta, therefore, until she gets her share demarcated on the basis of revenue map, her said share cannot be identified. It is stated though boundaries are mentioned in her sale deeds yet until her share is demarcated, her claim cannot be maintainable. B- That in reply to the contents of para 58 of the writ petition it is submitted that in the letter dated 18.4.1985 sent by the Geologist, department of Geology and Mining, U.P. (as it was then) also the Mining Patta Nos. 143 indicated only not the Khasras of the land on which the mining pattas were granted. The Mining Pattas Nos. of village Kyarkuli Bhatta are indicated, which also include the land of the petitioner but her share is not identifiable till it is got demarcated by the petitioner. The copies of the letter dated 10-11-2008 and 10-4- 8 1985 are already annexed as Annexure 20 and 21 to the writ petition.” In reply to the supplementary counter affidavit, the petitioners have filed supplementary rejoinder affidavit and alleged that the contents of para Nos. 4-A and 4-B of supplementary counter-affidavit are false, incorrect and denied. The District Magistrate has not filed the supplementary counter affidavit with clean hands. In this regard it is stated that the Senior Mines Officer vide letter dated 29-8-2008 to the Principal Secretary, Department of Industrial Development, Uttarakhand, Dehradun, has given the details of the mining pattas, granted to various firms and persons and the aforesaid pattas fall into three categories – (i) reserved forest area, (ii) Gram Samaj and (iii) private land. In the paragraph under reply all the pattas that have been shown, on which the land of petitioners is alleged to have been situated, fall within the category of Gram Samaj except for patta No.21, which falls within the category of reserve forest. It is further submitted that the land situated in Khasra No. 3190 is not Gram Samaj land nor is reserved forest area. Therefore, the pattas mentioned in the paragraph under reply in which vague allegations have been made that the land situated in these pattas is totally false and against the material on record. Copy of letter dated 29-8-2008 has been filed as Annexure No. SRA-1 to the affidavit. I have heard learned counsel for parties and perused the material on record. By a perusal of the specific reply of the supplementary counter- affidavit in para No. 4-A and 4-B, in reply to para Nos. 57 and 58 of the petition as well as from the letter of Senior Mining Officer, it is crystal clear that the pattas which were to be monitorized by the Eco Task force were not given on the private land of plot No. 3190. The answer which has been specifically given by the State in supplementary counter-affidavit in para Nos. 4-A and 4-B, is that mining patta Nos. 23, 25, 20, 100, 24, 21, 27, 104, 28 and 97, situated in village Kyarkuli Bhatta, also include the 2.30 hectares land of the petitioner. By perusal of the reply given in supplementary rejoinder affidavit and the letter of Senior Mining Officer, it is amply clear that this land has never been included in the mining pattas. The pattas 9 were given over forest land, details of which has been given by Senior Mining Officer in its letter dated 29-8-2008 Annexure No. SRA-1. Despite the letter of Lt. Col. Vijay Jaiswal dated 17-2-2007, Annexure No. 8 to the writ petition, admitting that the task assigned to the unit has been completed and the direction given by District Magistrate to the Mining Department to hand over the possession of the land, and assurance given by Eco Task Force that it would be vacating the land and it may take 1 or 1½ years, the possession of the land has not yet been handed over to the petitioners. So far as the argument of learned Brief Holder that the land has not been demarcated yet, therefore, the respondents are not in a position to hand over the possession to the petitioners, the same cannot be accepted for the simple reason that the State has a large machinery to demarcate the land and there are large number of revenue Officers in the State Department. It is not fair on the part of State Government to retain the land of the tenure-holders without any acquisition of the land. This action of the State Government is arbitrary and not fair. The Collector is shifting burden upon the Mining Department and also writing letter to Industrial Department and the matter is lingering on without any rhyme and reason, on one pretext or the other. Since the State has admitted that the petitioners are co-tenure holders of the land of plot No. 3190 of the village Kyarkuli Bhatta and their names are recorded in revenue record on 2.31 hectares of land and the entire land of Khasra (plot) No. 3190 has not been included in the pattas mentioned in para No. 4-A of supplementary counter affidavit, no question of demarcation of land arise. The State is obliged to give possession on the entire plot to respective tenure holders. In view of discussion made in foregoing paragraphs, the writ petition is allowed. The impugned order dated 9-6-2010, passed by respondent No.5, District Magistrate, Dehradun is quashed. Writ of mandamus is issued against the respondents to hand over possession of the land in question to the petitioners, within a period of four 10 months, from the date of production of certified copy of the order of this court. ISB (B.S. Verma, J. ) 8-12-2011