Kirti Saran Agarwal vs State Of Uttarakhand And Others on 20 April, 2022

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Uttarakhand High Court

Kirti Saran Agarwal vs State Of Uttarakhand And Others on 20 April, 2022

The petitioner alleging himself to be a recorded tenure holder of the land lying in Plot Nos. 177, 203 and 206 in Village Kamluaganza Narsinghtaalla, Tehsil Haldwani, District Nainital, had approached this Writ Court for the following reliefs :

"i. Issue a writ, order or direction in the nature of mandamus commanding the respondents to measure and demarcate the land of the road constructed over plot No. 177, 203 and 206 in village Kamluaganza Narsinghtalla, Tehsil Haldwani, District Nainital, and to acquire the same in accordance with the directions issued by this Hon'ble Court in judgement dated 10.12.2019, passed in WPMS No. 37 of 2019, Kirti Sharan Agarwal Vs. State of Uttarakhand and others;

ii. issue a writ, order or direction in the nature of mandamus commanding the respondents to deliver the vacant possession of the remaining area, if any after acquisition of Plot No. 177 in village Kamluaganza Narsinghtalla, Tehsil Haldwani, District Nainital, after removing encroachments thereon.

iii. award costs of this petition to the petitioner against the respondent;

AND iv. pass such other and further writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case."

2. In case, if the relief itself is taken into consideration, the writ of mandamus, for the purpose of demarcation to enable and facilitate the acquisition has been carved out by the petitioner to be enforced in a writ jurisdiction under Article 226 of the Constitution of India, under a purported compliance of a judgement of 10th December, 2019, which was rendered by the Division Bench of this Court in Writ Petition No. 3687 of 2019, Kirti Sharan Agarwal Vs. State of Uttarakhand and others.

3. Simultaneously, the petitioner has also sought a writ of mandamus, for directing the respondents to hand over the vacant possession of the remaining area of the land, the possession of which, has been alleged to have been taken by the respondents after taking over of plot No. 177, of the aforesaid village and to remove their encroachment.

4. Factually, the petitioner in support of his contention has made reference to the revenues entries which were made in the khatuni, pertaining to fasli year 1393 to 1398. He contends and claims that he stands recorded in the revenue records as against the land, which was said to have been taken over and is recorded as a Shreni-1Ka bhumidhar, which is one of the class of tenure holder under Section 129 of the U.P. Z.A. & L.R. Act.

5. Meaning thereby, the nature of the land, as it stood recorded in the revenue records on the date of filing of the Writ Petition was well within the category of revenue land covered under Section 129 of the U.P. Z.A. & L.R. Act.

6. For an alleged act of an illegal encroachment, which was contended by the petitioner to have been undertaken by the respondents in contravention to the provisions of Article 14; to be read with Article 300-A of the Constitution of India, the petitioner had earlier already approached before the Division Bench of this Court in Writ Petition (M/S) No. 3687 of 2019, Kirti Saran Agarwal Vs. State of Uttarakhand and others, wherein, the petitioner has sought a writ of mandamus commanding the respondents "not to construct the road on plot No. 177", meaning thereby, according to the relief modulated therein, in fact, by the time, when the petitioner approached earlier before the Writ Court, the act of construction of the road over the petitioner's alleged plot No. 177, was an act, which was yet to be performed. However, the Writ Court by the judgement of 10th December, 2019, had passed the following directions:-

"9. The respondents herein shall identify and earmark the extent, which the petitioner claims to be the owner of i.e. plot no. 177, in his presence; and, thereafter, lay a road thereupon so that, in case it is found later that the petitioner is the owner of the said land, acquisition proceedings can then be initiated by the State Government, under the provisions of "The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013", for acquisition of the said land. As owners of 4 land have the constitutional right, under Article 300-A of the Constitution of India, not to be deprived of their property except in accordance with law, it is made clear that any private land, over which a road is proposed to be laid, shall be acquired in accordance with the 2013 Act; and those, who are owners of the land, shall be paid compensation in terms of the said Act."

7. If the directions given therein are taken into consideration, it is a direction which was issued to the respondents to identify and earmark the extent of land which was alleged to be lying in plot No. 177, which was alleged by the petitioner in the relief clause, that the respondents were proposing to construct the road and thereafter, it was because this pleading that a direction was issued, that the act of the respondents since being in violation of Article 300A and since being in violation of non compliance of the provisions contained under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, it has been observed, that any private land, over which, a road is proposed to be laid, shall be acquired in accordance with the Act of 2013.

8. In fact, this judgement was rendered on 10th December, 2019, and as already observed by the time, when the judgement was rendered, the act of encroachment or construction was yet in offing. The actual possession of the land has not been taken over and that is why, the Division Bench has appropriately observed, that if the land is 'to be taken', it has 'to be taken', in consonance with the provisions of the Act of 2013, in order to meet up the spirit of 5 the provisions contained under Article 300A of the Constitution of India, to be read with Article 14.

9. The petitioner has come up in this Writ Petition with the case, that as a consequence of the project, which the respondents intended to enforce for the purposes of construction of the road, in fact, the respondents apart from constructing the road over his plot No. 177, which was then proposed to be taken over, they had rather extended their act of alleged illegal encroachment over plot Nos. 203 and 206 also of the same village, which the petitioner claims that it was belonging to him, as he was the bhumidhar.

10. The issue would be:-

(i) Firstly, if the respondents had proceeded to take over the land, which was lying in Khasra No. 177, which was a subject matter of the judgement of 10th December, 2019, rendered in Writ Petition No. 3689 of 2019, in that eventuality, if the respondents had violated any of the terms and conditions given in para 9 of the judgement (extracted above), the petitioner ought to have invoked the proceedings under Section 12 of the Contempt of Courts Act, within the prescribed period of alleged contemptuous act of taking over of the land, which was admittedly not resorted to by the petitioner, as no contempt was filed by the petitioner.

ii) Secondly, at least qua the act of respondents of taking over of the land of Khasra No. 177 is concerned, the petitioner would be estopped to raise a case to the 6 contrary, recurringly in the present Writ Petition, qua khasra No. 177, which has been otherwise laid to rest by the Division Bench judgement of 10th December, 2019.

iii) Thirdly, if the petitioner has come up with the case that in continuation thereof, to the act of respondents to construct the road, if they have taken over khasra Nos. 203 and 206 of Village Kamluaganza Narsinghtalla, Tahsil Haldwani, District Nainital, which the petitioner has interpreted, as if, it was a fresh cause of action and an act of encroachment in contravention to the judgement of 10th December, 2019. In fact, the modulation of the relief itself has been portrayed by the petitioner as if, it was the act of the respondents of taking over khasra Nos. 203 and 206, is in extension to the violation of the judgement of 10th December, 2019, and in that eventuality, it has been interpreted by the petitioner that the act of encroachment of khasra Nos.

203 and 206, would be construed to be a fresh cause of action, in order to enable the petitioner to file the present Writ Petition.

11. The petitioner had submitted that if the modulation of the relief, is to be interpreted in its true sense, where the petitioner had sought a writ of mandamus, to acquire the land in accordance with the directions issued by the judgement of 10th December, 2019, with all due reverence at my command, I am of the view that the reference of acquisition made in relief No.1 would not be read qua the subject matter, which was in dispute in the 7 earlier Writ Petition which was decided on 10th December, 2019, i.e. in relation to Khasra No. 177.

12. It's tentacles of the judgment dated 10/12/2019, cannot be extended to be applied for khasra Nos. 203 and 206 also, for the reason being that if the petitioner is construing that it was misdeed on the part of the respondents for taking over khasra Nos. 203 and 206, in extension to the earlier act, which was a subject matter of Writ Petition No. 3687 of 2019, in that eventuality, the petitioner's appropriate recourse would have been to have filed the Contempt Petition against the respondents within the period of limitation prescribed under Section 20 of the Contempt of Courts Act, because the act of encroachment for the remaining khasra numbers 203 and 206, which has been referred to in the relief clause cannot be read qua the relief which stood granted to the petitioner in the judgement of 10th December, 2019, rendered in Writ Petition No. 3687 of 2019.

13. This Court is of the view that merely based on the pleadings, that there was an act of encroachment on Khasra Nos. 203 and 206, would require an adjudication of a civil rights, where first a settlement and a judicial conclusion has to be arrived at based upon the evidence to be adduced by the parties, as to whether at all, an act of encroachment on additional khasra Nos. 203 and 206, had at all been taken by the respondents or not. Hence, until and unless, the said fact is established, by the appreciation of evidence and an adjudication to be made by the competent authority created under law, a writ of mandamus under the garb of the 8 judgement of 10th December, 2019, qua khasra Nos. 203 and 206, cannot be enforced for the purposes of measurement and demarcation of the land to bring it within the scope of the judgement of 10th December, 2019, and more particularly, when the first relief is followed by the second relief of mandamus for handing over of the vacant possession of the land after acquisition of plot No. 177, which yet again entails a consideration of factual aspect and hence the appropriate recourse available to the petitioner, would be to approach the competent revenue authority, under the Land Revenue Act of 1901, for first determining the aspect as to whether at all the case projectd by the petitioner in the Writ Petition, about an act of encroachment of khasra Nos. 203 and 206, is at all made out by the decision to be taken by the competent Authority under the Land Revenue Act, in order to issue any directions by way of writ of mandamus to the respondents to acquire the land under the garb of the judgement dated 10th December, 2019, which is not a case and the petitioner has far-fetchedly extended the implication of the judgement of 10th December, 2019, to be made applicable to khasra Nos. 203 and 206, which requires the factual determination.

14. Though the respondents were directed to file their counter affidavit and respondent Nos. 1 and 2 have filed a counter affidavit, to which, the learned counsel for the petitioner sought time to file rejoinder affidavit. Filing of a rejoinder affidavit first of all under law is not as of a right. Rejoinder is confined to the limited aspect of denying the 9 counter averments made by the respondents in contravention to the pre-existing pleadings in the Writ Petition.

15. Since this Court is of the view that the act of demarcation and identification would be a ground level proceedings, which has to be mandatorily resorted to by the respondents before deriving a prior conclusion, as to whether at all the additional khasra numbers given in the relief clause were at all taken over or not, it entails an exercise of factual appreciation, which has to be undertaken under the Revenue Law and since this Court is of the considered view that until and unless the said aspect is established, the petitioner cannot take the liberty to modulate the relief under the garb of the earlier Division Bench judgement, as if to bring within its ambit, his grievance qua the other khasra numbers also which had been allegedly taken over by the respondents for the construction of the alleged road.

16. Even this Court is of the view, that in fact the attempt made by the learned counsel for the petitioner for pressing upon relief No. 1, for seeking a writ of mandamus for measurement and demarcation and to acquire the land, in fact, was a clever device which has been adopted to overcome the impact of Section 20 of Contempt of Courts Act, to seek an enforcement of the direction for acquiring the land as directed in para 9 of the judgement of the Division Bench dated 10.12.2019, which cannot be resorted to by way of filing of the Writ Petition, to purge the effect of Section 20 of the Contempt of Courts Act.

17. Hence, this in itself, where khasra No. 177 has been yet again been included in the relief clause, this Writ Petition becomes a subsequent Writ Petition, qua the relief related to Khasra No. 177.

18. The contention of the petitioner that this Writ Petition would not be a second Writ Petition in succession for the same relief for reason being that Khasra Nos. 203 and 206 , has been taken over. In fact, the act of taking over, the factual aspect of establishment of the precinct of the land, which has been taken over, or the act of actual physical possession, which has been taken over, are all the aspects, which are to be gone into by the competent Civil or the Revenue Courts, and not by the Writ Courts, which are not equipped with the mechanism to demarcate or identify the land, for which, a writ of mandamus could be issued to acquire the land until and unless, the survey is made by the competent authority under Section 12 of the Act of 2013.

19. In that eventuality, the writ jurisdiction, cannot act as a substitute to the remedy which is available to the petitioner under Section 41 of the Land Revenue Act of 1901, for the purposes of demarcation and measurement or as a substitute to the proceedings under Section 12 of the Act of 2013, for the purposes of enabling the petitioner to determine an act of encroachment over Khasra Nos. 203 and 206, which was not included in the earlier Writ Petition.

20. The learned counsel for the petitioner, for the purposes of substantiating his argument, that this Writ 11 Petition happens to be altogether based upon a fresh cause of action, and hence, would be tenable before this Court, has made reference to a judgment as reported in (2007) 1 SCC 457, State of Haryana and others Vs. M.P. Mohla, and particularly, the Counsel for the petitioner had made reference to para 22 and 32 of the said judgment, which is extracted hereunder :-

"22. We, as at present advised, do not intend to go into the question as to whether the Revised Pay Rules or the ACP Rules will apply in the case of Respondent. The dispute between the parties has to be decided in accordance with law. What, however, cannot be denied or disputed that a dispute between the parties once adjudicated must reach its logical conclusion. If a specific question which was not raised and which had not been decided by the High Court the same would not debar a party to agitate the same at an appropriate stage, subject, of course, to the applicability of principles of res judicata or constructive res judicata. It is also trite that if a subsequent cause of action had arisen in the matter of implementation of a judgment a fresh writ petition may be filed, as a fresh cause of action has arisen.

32. In this case the purported subsequent event is the filing of the contempt petition. Appellants' specific stand in the contempt petition is that the order of the court stood complied with. If the order of the court stood complied with, there was no subsequent event which was necessary to be taken into consideration. Filing of an application under the provisions of the Contempt of Courts Act, 1971 itself cannot be a ground to deny the benefit under a judgment. It is one thing to state that the judgment of the court has been implemented, but it is another think that the effect of the judgment is not that what was being contended by Respondent. It is in that sense, this Court times without number has laid down the law that such subsequent events may give rise to a fresh cause of action."

21. If interpretation of para 22 of aforesaid judgment considered, where the Court has left the avenue open for the litigant to re-approach the Court, when there is a fresh cause of action, due to any positive decision having being taken by the respondents was qua the factual situation, which was prevailing in the said case, which was arising out of an act and interpretation of the impact of the service jurisprudence, where as per the factual backdrop of the case, dealt with in para 2 and 3, it related to the determination of the service benefits which were available to the petitioner, which was denied by the subsequent orders. The subsequent decision taken thereof, would itself will entail a fresh cause of action, and hence, the ratio laid down in para 22, that any subsequent decision, qua the relief claimed in relation to the service jurisprudence, denying the service benefits claimed for in para 2 and 3, the principle of res judicata will not apply, is absolutely in concurrence to my opinion and I agree with that principal; but that cannot be stretched to be made applicable in the instant, where the matter relates to a factual adjudication of civil rights and that too in relation to a land, which is being sought to have been taken over in violation of Article 300A of the Constitution of India.

22. Hence, while agreeing with the ratio of the judgement, I am of the view that this will not be of any avail to the petitioner for the purposes of the present Writ Petition, which deals with a different fact and law altogether.

23. The second judgement, the reference of which has been made by the learned counsel for the petitioner is 13 reported in (2007) 7 SCC 689, The Commissioner, Karnataka Housing Board Vs. C. Muddaiah, and here the petitioner has made reference to para 27 and 31 of the judgement, which is extracted hereunder.

"27. In our opinion, the contention that no fresh petition could be filed by the respondent-writ petitioner in 2000 has also no substance. So far as contempt petitions are concerned, the Court held that the order passed by the Court had been complied with and it could not be said that the Board or its Officers were liable to be punished. An Office Memorandum dated February 2, 1998 is on record. It refers to a decision of the High Court dated October 27, 1997 in Writ Petition No. 1848 of 1992 and states as to how the direction of the Court has been complied with. The relevant part of the said order reads thus:

"Accordingly, the promotion of Sri C.Muddaiah, be worked out with reference to the promotion accorded to Sri K. Srinath and the consequential benefit be allowed to Sri C. Muddaiah, as per the Judgment referred to above". (emphasis supplied)

31. Bare reading of the above order makes it more than clear that the salary to be paid to the writ petitioner was from October 27, 1997 to February 28, 1998. It was expressly stated that the writ-petitioner would not be entitled to arrears of pay and allowances for any earlier period "since he has not actually worked in the cadre of Superintendents and Assistant Revenue Officers". It is thus obvious that in spite of clear direction issued by a competent Court, no payment was made and an express order was passed to the effect that the writ- petitioner would not be entitled to pay as he had not worked. The writ-petitioner, therefore, had legitimate grievance against such direction. A fresh substantive petition, hence, could be filed by him and since he was entitled to such relief, the Division Bench was justified in granting the prayer."

24. The Hon'ble Apex Court in the said case, while 14 dealing with the aspect about the fresh cause of action for the purposes of enabling the person, who had earlier approached the Writ Court, whether, he could at all file a subsequent Writ Petition under the garb of occurrence of a subsequent cause of action was in the context of a decision, which was taken by the Commissioner Karnataka Housing Board, as against the judgement, which was passed by the Division Bench of the Karnataka High Court in Writ Petition No. 6722 of 2003, and quite obviously, any subsequent decision which had been taken by the Authority therein, i.e. Karnataka Housing Board, since was in compliance of the judgment of the Division Bench dated 22nd March, 2005, as therein involved, would obviously give a fresh cause of action for the petitioner, enabling him for filing a fresh Writ Petition, and it will not be a re-agitation of the same issue, which was decided by the Division Bench. This judgement too, since factually being based upon a different context altogether, where the cause of action has accrued due to the decision of the Division Bench of Karnataka High Court, which was subject matter of challenge in the Writ, the said principle will not be applicable herein, and that too, in a peculiar circumstances in this case, where the petitioner has prayed for a measurement and demarcation of the land, which is contemplated under Section 41 of the U.P. Land Revenue Act of 1901 and under Section 12 of the Act of 2013.

25. Until and unless, the first step of measurement, demarcation and identification of the land is taken by the respondents as per settled law for the purposes of proceeding further to determine the adequacy of the compensation and 15 the necessity of issuing notification for acquiring the land, it would be then only an act subsequent to the principle act, which is sought to be enforced by the petitioner in the present Writ Petition.

26. Hence, for the reasons above, I am of the view, that there cannot be an interblending of subject of law of recourses to civil remedies, than that too by keeping it on the common pedestal with that of the law related to service jurisprudence, where the consideration has to be been made absolutely based upon altogether a different pedestal.

27. Thus, I am of the view, that before the benefit of acquisition or the recourses to the acquisition itself is taken by the petitioner, as prayed for in the Writ Petition, its prior steps of Section 41 of the Act of 1901 or prior survey under Section 12 of Act of 2013, has to be resorted to independently, prior to acquiring of the land, which is in much distinction to the cause, which has been agitated herein

28. There is another reason, why this Court is declining to interfere to issue any positive writ of mandamus to demarcate the additional khasra numbers, which had been alleged to have been taken by the respondents i.e. khasra Nos. 203 and 206, for the reason being that, this pleading of the petitioner has had to be first factually established based on evidence and that establishment of fact could only be by the recourses available to the petitioner under law, where factual determination is required to be made based on 16 evidence and not by way of issuance of writ of mandamus for demarcation or measurement.

29. For the reasons aforesaid, with the liberty left open to the petitioner to have his recourses resorted to under Section 41 of the Land Revenue Act of 1901, or to the recourses under Section 12 and other corresponding provisions contained under the Act of 2013, this Court declines to exercise its extra ordinary jurisdiction Article 226 of the Constitution of India, which entails an appreciation of fact, which is not the scope of interference by the Writ Court under Article 226 of the Constitution of India.

30. Accordingly the Writ Petition is dismissed subject to the aforesaid liberty.

(Sharad Kumar Sharma, J.) 20.04.2022 Shiv

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Uttarakhand High Court