Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 1778 OF 2007 (MS) Gram Samaj ………………….Petitioner. Versus State of Uttaranchal and others. ………..Respondents. Mr. D. Barthwal, Advocate for petitioner. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for State of Uttarakhand / respondent no. 1 to 4. Mr. Pitambar Maulekhi, Advocate for respondent no. 5. 12th August, 2009 Hon’ble Sudhanshu Dhulia, J. This writ petition has been filed by the Gram Samaj, Gaon Sabha – Nanur Khera, Vikas Khand Raipur, district Dehradun through its Gram Pradhan. The petitioner has challenged the order dated 25th April, 2005 by which the State Government exercising its power under Section 117 (6) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) has resumed the possession of a land earlier notified in favour of the Gram Samaj i.e. the petitioner and has also transferred that land in favour of the respondent no. 5 in order that she may open a Petrol Pump Depot on the said land. The matter pertains to Plots No. 393 and 394 of Village Nanur Khera, Parvadoon, Rishikesh, Dehradun total area being .0741 hectares, which was vested in the Gaon Sabha namely Gaon Sabha-Nanur Khera, Vikas Khand Raipur, Dehradun vide notification dated 7th May, 1981, which was issued under Section 117 of the Act. However, vide the subsequent notification dated 25th 2 April, 2005 issued under Section 117 (6) of the Act, earlier notification dated 7th May, 1981 has been cancelled and the ownership of the land has been resumed by the State Government. However after the resumption, the State Government has further leased this land in favour of respondent no. 5. The petitioner has challenged, inter alia, this notification dated 25th April, 2005, which was issued under Section 117 (6) of the Act. Undoubtedly, the State has got power under Section 117 (6) of the Act to divest the said land from the Gaon Sabha. However, the case of the petitioner is that it cannot be given to a private individual for commercial purposes. A perusal of Section 117 of the Act, therefore, becomes essential, which reads as follows: “117. Vesting of certain lands, etc. in Gaon Sabhas and other local authorities.—(1) At any time after the publication of the notification referred to in Section 4, the State Government may, [by general or special order to be published in the manner prescribed,] declare that as from a date to be specified in this behalf, all or any of the following things, namely— (i) lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove, (ii) forests, (iii) trees, other than trees in a holding on the boundary of a holding or in a grove or abadi, (iv) fisheries, (v) hats, bazaars and melas, except hats, bazaars and melas held on lands to which the 3 provisions of clauses (a) to (e) of sub-section (1) of Section 18 apply or on sites and areas referred to in Section 9, and (vi) tanks, ponds, private ferries, water channels, pathways and abadi sites,-- which had vested in the State under this Act shall vest in a Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate, or partly in one such local authority (including a Gaon Sabha) and partly in another: Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as may be [specified in such order]. (2) Notwithstanding anything contained in this Act or in any other law for the time being in force, the State Government may, [by general or special order to be published in the manner prescribed,] declare that as from a date to be specified in this behalf, all or any of the things specified in clauses (i) to (vi) of sub-section (1) which after their vesting in the State under this Act had been vested in a Gaon Sabha or any other local authority, either under this Act or under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, shall vest in any other local authority (including a Gaon Sabha) established for the whole or part of the village in which the said things are situate. (3) Where any declaration has been made under sub-section (1) or sub-section (2) vesting any of the things specified in clauses (i) to (vi) of sub- 4 section (1) in any Gaon Sabha, and the village or the part of the village in which that thing is situate lies outside the circle of the Gaon Sabha, such Gaon Sabha or its Land Management Committee shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, 1947, on a Gaon Sabha or a Land Management Committee, as the case may be, as if that village or part of village also lay within that circle. (4) Where a declaration has been made under sub-section (1) or sub-section (2) vesting any of the things specified in clauses (i) to (vi) of sub- section (1) in a local authority other than a Gaon Sabha and the village or the part of village in which the thing is situate is outside the limits of such local authority, or where after any declaration is made under sub-section (1) or sub- section (2), the thing vests or, as the case may be, had vested in a Nagar Mahapalika under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, such local authority shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, 1947, on a Gaon Sabha or Land Management Committee: Provided that the local authority shall in the performance, discharge and exercise of its functions, duties and powers under this sub- 5 section follow such procedure as may be prescribed. (5) Where any of the things specified in clauses (i) to (vi) of sub-section (1) is vested in a local authority other than a Gaon Sabha the provisions of Sections 126 and 127 shall, subject to such exceptions and modifications, if any, as the State Government may specify in this behalf [by general or special order to be published in the manner prescribed] apply, mutatis mutandis, to such local authority. (6) The State Government may at any time, [by general or special order to be published in the manner prescribed], amend or cancel any [declaration, notification or order] made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority, and resume such thing, and whenever the State Government so resumes any such things, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things: Provided that the State Government may after such resumption make a fresh declaration under sub-section (1) or sub-section (2) vesting the thing resumed in the same or any other local authority including a Gaon Sabha), and the provisions of sub-sections (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration.” 6 Undoubtedly, Government has got power under Section 117 (6) of the U.P. Z.A. and L.R. Act to amend or cancel earlier notification by which the land was given to the Gaon Sabha and therefore so far as the order dated April 25, 2005 is concerned, it has been invoked under Section 117 (6) of the U.P. Z.A. and L.R. Act and there is nothing wrong with it. However, what has to be examined is as to whether under the provision of the said Act, after resumption if the State Government wants to make a fresh declaration under sub-Section (1) and (2) of Section 117 of the Act the land can be given only to the Gaon Sabha or it can be given to a private individual for commercial purposes. The proviso to Section 117 (6) of the Act states “the State Government may after such resumption”, as such therefore, there is no condition precedent that even after such a resumption, the State Government must give the land only to the Gaon Sabha or any other local authority. In other words, this land can be given to any other person apart from the Gaon sabha or a local authority. However, the question still would be whether such a land can be given to an individual for use of “commercial purposes” as admittedly this land has been given to the respondent no. 5 for use of commercial purposes. The provisions of Section 117 of the Act has to be examined in this light. In the opinion of this Court, therefore, although the State being the real owner of the property, on the basis of principle of “imminent domain”, yet is no provision under Section 117 of the Act, whereby such a land can also be given to an individual for commercial purposes. Therefore, to this extent under the present circumstances, the impugned order dated 25th April, 7 2005 cannot be sustained as it has been given in favour of the respondent no. 5 for commercial purposes. The order dated 25th April, 2005 to the extent this land has been given to the respondent no. 5 is bad and is set aside. It is clarified that the land will remain vested with the State Government, and all consequent action of the State regarding the land shall be in accordance with law. At this juncture, it is clarified that though all this Court has said is this particular allotment of land in favour of the respondent no. 5 is illegal, however, as it has come out from the pleadings that the respondent no. 5 is a widow, therefore, in case the State Government, in its wisdom wants to allot any other land to respondent no. 5 in accordance with law, the Government may do so. In view of the aforesaid, the order dated 25th April, 2005 and order dated 15/16th June, 2005 to the extent that the said orders transfer the land in the name of respondent no. 5 are set aside. The writ petition is, therefore, partly allowed. No order as to costs. (Sudhanshu Dhulia, J.) 12.8.2009 Rathour