HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved fro reporting.) (Chapter VII Rule 32 (2)(b) Description of the case. WPMB No. 256/02 Arya Samaj, Ram Nagar Vs State of Uttaranchal Approved for reporting. Not approved for reporting Date of decision: 18.04.2006 Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO: 256 OF 2002 (M/B) 1- Arya Samaj, Ramnagar, District Nainital. 2- Arya Samaj, through its Secretary, Sri Dinesh Kumar Goel, Ramnagar, District Nainital. --------Petitioners Versus 1- State of Uttaranchal through District Magistrate, Nainital. 2- Addl. District Magistrate (Nazool), Nainital 3- Nagar Palika Parishad through its Executive Officer, Ramnagar, District Nainital. 4- Trilok Chandra, S/o Sri Harak Dev, R/o Ranikhet Road, Ramnagar, District Nainital. 5- Additional Commissioner, Kumaun Mandal, Nainital. --------Respondents AND WRIT PETITION NO: 257 OF 2002 (M/B) 1- Arya Samaj, Ramnagar, District Nainital. 2- Arya Samaj, through its Secretary, Sri Dinesh Kumar Goel, Ramnagar, District Nainital. --------Petitioners Versus 1- State of Uttaranchal through District Magistrate, Nainital. 2- Addl. District Magistrate (Nazool), Nainital 3- Nagar Palika Parishad through its Executive Officer, Ramnagar, District Nainital. 4- Parmanad, S/o Sri Poornanad, R/o Ranikhet Road, Ramnagar, District Nainital. 5- Additional Commissioner, Kumaun Mandal, Nainital. --------Respondents AND WRIT PETITION NO: 258 OF 2002 (M/B) 1- Arya Samaj, Ramnagar, District Nainital. 2- Arya Samaj, through its Secretary, Sri Dinesh Kumar Goel, Ramnagar, District Nainital. --------Petitioners Versus 1- State of Uttaranchal through District Magistrate, Nainital. 2- Addl. District Magistrate (Nazool), Nainital 3- Nagar Palika Parishad through its Executive Officer, Ramnagar, District Nainital. 4- Bhopal Singh, S/o Sri Govind Singh, R/o Ranikhet Road, Ramnagar, District Nainital. 5- Additional Commissioner, Kumaun Mandal, Nainital. --------Respondents Sri Rakesh Thapliyal learned counsel for the petitioners Sri B.C. Pandey learned counsel for the respondents. Dated: April 18, 2006. HON’BLE RAJESH TANDON, J. Heard Sri Rakesh Thapliyal, learned counsel for the petitioners and Sri B. C. Pandey, learned counsel for the respondents. All the writ petitions involve common question of law and facts, hence are being disposed of by a common order. By the present writ petition the petitioners have prayed for a writ of certiorari quashing the order dated 22-10-2001 passed by the Additional Commissioner, Nainital. Petitioners have further prayed for a writ of mandamus directing the Commissioner/Addl. Commissioner, Nainital to decide the application of the petitioners by a reasoned and speaking order by giving proper opportunities to the all the parties concerned. Briefly stated, on 16th January, 1929 a lease deed was executed in favour of Arya Samaj, Ramnagar, District Nainital for a period of 30 years which was renewed for the further period of 30 years in 1963. In the year 1998 a scheme of free hold Nazool land was formulated by Government of U.P., the petitioners applied to the District Magistrate, Nainital by representation dated 29-01-1999 for conversion of the land into Free Hold Land and also deposited certain amount. On 31 May, 2000 Additional District Magistrate Nainital passed an order by which the Nazool land was converted into Free Hold land in favour of the respondent no.4. The petitioners represented before the Commissioner in pursuance of the G.O. dated 17/02/1996. The Commissioner vide his order dated 22/10/2001 rejected the representation of the petitioners on the ground that there is no provision of appeal or representation against the Free Hold granted by the District Magistrate. A counter affidavit has been filed by the Standing Counsel on behalf of respondent no.1 & 2. In the counter Affidavit filed by the respondent no.4 it has been mentioned as under: “that the contents of para No.2 of the writ petition are wrong and misleading and the same are not admitted. The real facts in this connection are that the land leased out to the Arya Samaj is triangular. The land converted into freehold in favour of the respondent no. 4 is outside the area for which lease was granted in faovur of Arya Samaj. The lease deed was executed in favour of Arya Samaj pursuant to the resolution no. 23 dated 24/05/1928 of Notified Area Ramnagar. By the said resolution a piece of land measuring North-South 100 ft. long, being 23 ft. wide on the northern side and Zero ft. wide on the for initially for a period of 30 years. The copy of lease deed filed by the petitioners as annexure 1 itself contains a remarks to this effect”Leased by the Committee in reso:No.24-5-28” “It is further stated that the aforesaid freehold deed has been registered on 30-6-2000 in Book No.1 Vol. 806 at pages 281-304 at S.N. 2522 and the accompanying map in the Book No.1 Vol 910 at pages 375-376 in the office of sub Registrar Haldwani, District Nainital” “A registered Freehold deed having been executed in favour of the respondent no. 4 the same is operative. The jurisdiction to cancel or adjudge void a registered instrument vests only in the civil court. The commissioner or Addl. Commissioner has no jurisdiction to grant such relief, in absence whereof the entire proceedings before him will be meaningless.” “There is controversy regarding area and dimensions, of the leased land. The matter involves complicated questions of fact and la. It is therefore in the larger interest of justice that the petition is rejected.” Counsel for the petitioners has invited attention of the court regarding paragraph 7 of the G.O. dated 17-02- 1996 which reads as under: “7- 'kklukns’k fnukWd 03-10-1994 esas Qzh gksYM dh dk;Zokgh djus gsrq ftykf/kdkjh dks :i;s 10 yk[k rd ,oa e.Myk;qDr dks :i;s 10 yk[k ls vf/kd rFkk 50 yk[k :i;s rd ds ekeyksa esa fu.kZ; ysus dk vf/kdkj izfrfu/kkfur fd;k x;k FkkA vc ;g fu.kZ; fy;k x;k gS fd utwy Hkwfe ds Qzh gksYM dus dh leLr dk;Zokgh ftykf/kdkjh Lrj ij dh tk;sxhA y[kum ,oa nsgjknwu esa ;g dk;Zokgh mik/;{k] fodkl izkf/kdkj.k }kjk dh tk;sxhA ijUrq ftu ekeyksa esa izpfyr Hkw&mi;ksx O;olkf;d gS rFkk Qzh gksYM dh /kujkf’k 50 yk[k ls vf/kd gS] mu ekeyksa esa Qzh gksYM dh dk;Zokgh gsrw e.Myk;qDr Lrj ij fu.kZ; fy;k tk;sxkA mijksDr izkfo/kku mu ekeyksa esa ykxw ugh gksxk tkgkW 'kklu dk vuqeksnu vko’;d gSA ;gkW ;g Hkh LiIV fd;k tkrk gS fd ftykf/kdkjh@mik/;{k] fodkl izkf/kdj.k fdlh Hkh n’kk esa vius vf/kdkjh dk fdlh vU; vf/kdkjh dks izfrfu/kk;u ugha djsxs rFkk ftykf/kdkjh@mik/;{k ds fu.kZ; ls {kqC/k O;fDr e.Myk;qDr ;k 'kklu dks izR;kosnu ns ldrk gSA 7- bl lEcU/k esa eq>s ;g Hkh dgus dk funs’k gqvk gS fd mijksDr la’kks/ku ,oa ifjo/kZu dks rkRdkfyd izHkko ls ykxw durs gq, dk;Zokgh dh tk;s rFkk uhfr dk foLr`r izpkj o izlkj fd;k tk;s ftlls blesa fufgr izkfo/kku lEcfU/kr Ik{k Hkfy&HkkWfr le> lds bldk ykHk mBk ldsA 8- bldk vkns’k foRr foHkkx ds v’kkldh; la[;k bZ&6&255@nl@96 fnukWd 14 Qjojh]1996 esa izkIr mudh leefr ls tkjh fd;s tk jgs gSA” Paragraph 7 of the G.O. direction has been given that in accordance with the G.O. dated 03-10-1994 the D.M is empowered to execute the sale deed in respect of 10 Lacs and above that he Commissioner is empowered to execute the deed of Rs. 50 Lacs and above 50 Lacs by the State Government. It has been made clear that if any question arises regarding free hold it shall be amenable to the representation before the Commissioner. It is made clear from paragraph 7 G.O. that any question regarding the free hold can be determined by the Commissioner. Such a discretion has been given to the Commissioner before executing the sale deed as a free hold and not afterwards. It is well settled that under the Registration Act if a deed is registered, no appeal or representation can nullify the execution of the sale deed and the remedy lies with the civil court alone. In view of the above liberty is given to the petitioners to approach the civil court for their grievances as the remedy lies before the civil court and not by way of representation before the Commissioner, who becomes functus offitio after the execution of sale deed. In view of the alternative remedy available to the petitioners writ petition is dismissed. However, it will be open for the Petitioners to approach the Civil Court. Subject to above, writ petitioners are dismissed on the ground of alternative remedy. (Rajesh Tandon, J.) 18/04/2006 A.Roy