IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CIVIL MISC. WRIT PETITION NO.1204 OF 2008 (OLD NO.5011/1985) Naim Akhtar ……… Petitioner Versus State of Uttarakhand & others .…… Respondents Dated: December 15, 2009 HON. DHARAM VEER, J. By means of this writ petition, moved under Article 226 of The Constitution of India, the petitioner has prayed for issuing a writ in the nature of mandamus directing the respondents to pay the petitioner compensation as claimed by him or they may be directed to re-determine the compensation for 450 trees which were standing on the spot. Heard Sri Lok Pal Singh, learned counsel for the petitioner as well as Sri Sudhir Kumar, learned Brief Holder for the State and also perused the record. Brief facts of the case are that 66 Bighas 19 Biswas and 13 biswansi land of the petitioner was declared surplus on which the State Government had taken over possession on 7.8.1977. Thereafter Tehsil details in form no.7, 8 and 9 were received and notice in form no.12 was given to the petitioner. The petitioner did not file any objection against the notices and the assessment roll was made final on 3.7.1978 and a sum of Rs.8109.40P was assessed as compensation. Thereafter form no.20 was issued under Rule 43 and 44 to the petitioner and since no objections were filed, the petitioner was paid Rs.1,000/- as first installment on 4.7.1978. Thereafter on 10.7.1978 the petitioner moved an application that the compensation regarding trees standing on the land should be again calculated and the matter may be reconsidered. It was alleged that the 2 compensation assessed is not per law. On that application, the then Prescribed Authority passed an order on 13.7.1981 and directed the Tehsildar to go on the spot and submit the report about the actual price of trees within 15 days. In this regard, Supervisor Qanungo, Bhagwanpur submitted his report dated 1.3.1982 where he assessed the value of wood of trees at Rs.1,13,760/-. On doubting this report, the Prescribed Authority/S.D.M. himself inspected the spot alongwith Naib Tehsildar, Bhagwanpur, Pradhan Kheri Shikohpur, Supervisor Qanungo Bhagwanpur, Lekhpal of the area and the petitioner and found 65 trees on the spot. Out of those 65 trees, there were 30 guava trees which were not more than two years old and the remaining were mango trees whose age was also not more than two years. Ultimately it was observed that the trees were planted by the petitioner after taking over the possession by the State Government. After observing all the conditions the then Prescribed Authority rejected the application dated 10.7.1978 of the petitioner and maintained the assessment table dated 7.3.1978 vide order dated 26.3.1983. Against that order, the petitioner filed an appeal before the District Judge. The same was dismissed by IInd Addl. District Judge vide his order dated 9.1.1985. Feeling aggrieved with the aforesaid orders dated 26.3.1983 and 9.1.1985, the petitioner has filed this petition before this Court. Learned counsel for the petitioner has argued that the learned Prescribed Authority as well as the IInd Addl. District Judge has not determined the amount of trees as per Section 17 and Schedule IV(c) of Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter to be referred as the Act). Learned Brief Holder for the State has also conceded on this point. At this juncture, learned counsel for the parties prayed that the matter may be remanded back to the Prescribed Authority for re- 3 determination of the compensation of trees as per Section 17 and Schedule IV(c) of the Act. Section 17 of the Act reads as under:- “17. Manner of calculation of amount – (1) Subject to the provisions of sub-section (2), every tenure- holder, whose surplus land has vested in the State under the provisions of this Act, shall be entitled to receive and be paid amount as laid down in the Schedule and as determined in the manner provided hereinafter. (2) The sub-tenant of asami of the tenure-holder, not being an asami mentioned in Section 11 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, shall be entitled to receive and be paid a portion out of the amount payable to the tenure-holder. The proportion of amount payable to the sub-tenant or the asami shall be aggregate of the land revenue for the unexpired period of his subordinate interest computed at hereditary rates, so however, that the sub-tenant or the asami shall not in any case, be entitled to more than one-fourth of the amount payable to the tenure-holder. The amount shall be apportioned between the tenure-holder and the sub-tenure or the asami by the Prescribed Authority. (3) Nothing in this Act shall prevent any person, not being a person referred to in sub-sections (1) and (2), having any right, title or interest in the surplus land, or any person having any claim to amount against the person entitled thereto under the provisions of this Act, from claiming any right, title or interest in such amount in any court of competent jurisdiction.” Schedule IV(c) of the Act reads as under:- (c) Trees- (1) Fruit bearing trees Eight times the annual fair average value of fruit crops. (2) For young fruit trees which have not yet borne fruits. Cost of the plant and expenditure on labour and planting. 4 (3) Trees whose value lies mainly in the timber thereof. Eight times the annual fair average value of such trees. On perusal of the aforesaid section and schedule of the Act, it transpires that the Prescribed Authority as well as the IInd Addl. District Judge has not determined the compensation of trees to be given to the petitioner as per Section 17 and Schedule IV (c) of the Act. I find that the order dated 26.3.1983 passed by Prescribed Authority and order dated 9.1.1985 passed by IInd Addl. District Judge are not justified as per law and are liable to be set aside. The judgment and order dated 26.3.1983 passed by Prescribed Authority and the judgment and order dated 9.1.1985 passed by IInd Addl. District Judge are set aside. The matter is remanded back to the Prescribed Authority who will decide the matter afresh as per provisions of Section 17 and Schedule IV(c) of the Act expeditiously, preferably within a period of three months, after receipt of certified copy of this order. With the aforesaid observations, the writ petition is disposed of finally. (Dharam Veer, J.) 15.12.2009 RG