Uttarakhand High Court
WPPIL/63/2024 on 12 April, 2024
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
Office Notes,
reports, orders
SL. or proceedings
Date COURT'S OR JUDGES'S ORDERS
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WPPIL No.63 of 2024
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Mr. Prabhat Bohra, learned counsel for the petitioner.
2. Mr. J.C. Pandey, learned Brief Holder for the State.
3. Petitioner has challenged Clause 1(7) of the Nazul Policy 2021, which declares unauthorized occupants over Nazul land as eligible for grant of free hold right. This according to petitioner incentivised encroachment upon Government land and is also in teeth of the direction issued by the Division Bench of this Court in Writ Petition (PIL) No. 132 of 2013 and batch of Writ Petitions including WPPIL No.173 of 2015.
4. Learned counsel for petitioner further contends that although SLP filed by State and certain private individuals against aforesaid judgment is pending; however, Hon'ble Supreme Court had issued notices limited to the directions contained in para nos.20-B and 20-C of the impugned judgment on those SLPs and parties were directed to maintain status quo as existing on the date of passing of said order i.e. 08.10.2018.
5. Learned State Counsel has drawn our attention to subsequent order passed on 03.12.2021 in SLP (Civil) No.27862 of 2018 whereby Hon'ble Supreme Court stayed the effect of judgment and order passed by Division Bench of this Court in Writ Petition (PIL) No. 173 of 2015.
6. Learned counsel for the State contends that revised Nazul Policy was issued in 2021 after interim order passed by the Hon'ble Supreme Court on 03.12.2021, thus, he submits that challenge to Clause 1(7) of Nazul Policy, 2021 2 is tenable.
7. Learned counsel for petitioner has relied upon judgment rendered by Hon'ble Supreme Court in the case of Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh and others (2011) 5 S.C.C. 29. Paragraphs 65 and 66 of said judgment on which reliance is placed are reproduced below:-
"65. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non- discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
66. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the 3 Constitution."
8. We are not inclined to issue notice to respondent no.3 at this stage as we are on the larger issues raised by petitioner.
9. Learned State counsel may file counter affidavit within six weeks.
10. List this petition on 09.07.2024.
11. Grant of free hold right, if any, to unauthorized occupants over Nazul land shall abide by outcome of this writ petition.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) 12.04.2024 Arti