IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1343 (M/S) of 2011 Nazakat Ali S/o Shri Hasmat Ulla - Petitioner Versus State of Uttarakhand and others - Respondents [Hon’ble B.S. Verma, J.(Oral)] Heard Mr. T.A. Khan, Advocate appearing on behalf of the petitioner and Mr. Sudhir Kumar, Brief Holder for the State. By means of this petition the petitioner has sought the following relief:- (A) To issue a writ, order or direction in the nature of certiorari quashing the judgment and order dated 24-03-2001 passed by Deputy Director of Consolidation (Additional Collector Nazool), Udham Singh Nagar, in Revenue Revision No. 52/18 (2007-08)/52/40(2010-11) (Annexure-1 to the writ petition) and order dated 27-4-2007, passed by Consolidation Officer in Consolidation Case No. 70/512 of 2000-2006-2007( Annexure – 2 to the writ petition) and the judgment and order dated 8-2- 2008 passed by Settlement Officer (Consolidation) in appeal No. 170/239 U/S 11(1) of Consolidation of Holdings Act (Annexure-3 to the writ petition). (B) To issue suitable directions to the respondent No.3 and 4 to record the name of the petitioner in the revenue record as Bhumidhar with non-transferable rights and the possession of the petitioner may kindly be directed to be regularized with regard to the land measuring about 1.863 Hec., bearing Khasra Nos. 440, 444 Min, 455/2, 584, 586, 586 of Khata No. 601 of village Bejuri Tehsil Kashipur, District Udham Singh Nagar. Briefly stated the facts of the case, according to the petitioner are that his father Sri Hasmat Ulla was in possession of the land in dispute. He filed suit U/S 229-B of U.P. Z.A. and L.R. Act, for declaration of his right in the land. During the pendency of suit consolidation proceedings took place. Therefore the suit was abated and he filed objection U/S 9-A(2) of Consolidation of Holdings Act, which was decided by Consolidation Officer vide order dated 27-4- 2 2007, whereby the objection of the petitioner has been rejected. Aggrieved by the order of Consolidation Officer the petitioner preferred appeal U/S 11 of Consolidation of Holding Act and that too was dismissed by Settlement Officer, Consolidation vide order dated 8-2-2008. Further aggrieved the petitioner preferred revision U/S 48 of the Consolidation of Holdings Act, which was heard on merit and that was also dismissed on 24.3.2011. Therefore, this writ petition. The learned counsel for the petitioner has contended that the Consolidation Officer in his order has observed that he has no right to convert the category of land. It was also observed by the Consolidation Officer that father of petitioner was in possession of land since 25 years and even then the objection was rejected. He also contended that the land is not of public utility and is not covered U/S 132 of U.P.Z.A. and L.R. Act. I have perused the averments made in the writ petition as well as the observations made in the impugned orders. The learned Consolidation Officer has also observed that the possession on spot was verified by the Supervisor Qanoongo on 17.6.1995 and by Tehsildar on 19-8-1995. It has also been observed in the order that Nazakat Ali himself moved application on 4.9.95 stating therein that part of the disputed land has merged in the river, therefore, in place of that land, he may be given another land of Gaon Sabha. In column No. 36 of Form CH 2-A reference of possession of petitioner is there. By relying upon the judgment of Allahabad High Court in Writ Petition No. 1657 of 1971, Similesh Kumar Vs. Gaon Sabha Uskar Ghazipur and others, decided on 5-4-1977, it has been held that the Consolidation Court has no right to examine the validity of the lease and it was held that if the lease be deemed valid the name of the petitioner ought to have been recorded in category-3 as Asami and he may not be Bhumidhar in the Gaon Sabha land and accordingly the objections have been rejected. The appellate court has further held that the land is recorded in category 6(4) ^^jsr”(sand) and it is a public utility land and no rights can be given to the petitioner/objector in the land in dispute. The Settlement Officer has observed that although the Consolidation Officer has also observed that the appellant has not 3 filed any order whether the suit has been abated and any appeal has been filed or not. Even otherwise the Settlement Officer Consolidation has decided the appeal on merit and it has been held that the land is covered U/S 132 of the Act and is a public utility land, therefore, no rights can be given to the appellant/petitioner. It was observed that the alleged lease dated 12.11.1971 is an incomplete document and no approval was made by the Assistant Collector, therefore, no right can be given to him and it was accordingly dismissed. The learned D.D.C. has also affirmed the finding of S.O.C. and the revision was dismissed on the similar grounds. The learned Brief Holder for the State has contended that according to C.H. 2-A Annexure No.5 (paper No. 43) filed by petitioner himself, the disputed land was found river on the spot and land was left out of consolidation. So far as the possession of petitioner is concerned, that is unauthorized possession on the land of public utility. At the most on the public utility land a person can be given Asami right for a period of five years in view of Rule 176-A of U.P. Z.A. Rules. By a perusal of orders passed by courts below it shows that the land is covered by water on the spot and it is a river. This is a factual question and all the courts below have given a categorical finding that the land is belonging to Gaon Sabha and is recorded ^^jsr”(sand) in revenue record and is covered by water. The finding of fact recorded by courts below cannot be interfered in writ jurisdiction. The scope of writ jurisdiction is very limited and in view of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675 and Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], it has only to be examined whether the courts below have committed any manifest error of law or the jurisdictional error or has based its findings without any evidence. Admittedly this fact is not disputed that the alleged Patta has not been approved by the Assistant Collector hence that has no legal value in the eye of law. So far as possession part is concerned, by mere possession cannot confer any right on a land and the person in possession of land cannot be declared Bhumidhar on the land of Gaon 4 Sabha covered under Section 132 of the Act and in view of observation made by Hon’ble Apex Court in the case Hinch Lal Tiwari Vs. Kamala Devi and others, reported in (2001) 6 Supreme Court Cases 496. The writ petition lacks merit and is liable to be dismissed. The writ petition is dismissed at threshold. Dated: 6-7-2011 (B.S. Verma, J. ) ISB