# STATE OF UTTARAKHAND AND ANR v. RAVI KUMAR (DECEASED) THROUGH LRS AND OTHERS

- **Citation:** 2023 INSC 550
- **Court:** Supreme Court of India
- **Decided:** 2023-05-18
- **Case number:** Civil Appeal No. 4983 of 2009
- **Bench:** Surya Kant, J. K. Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-uttarakhand-and-anr-v-ravi-kumar-deceased-through-lrs-and-others-36379
- **Pages:** 41

## Headnote

Tenancy laws: Title claim - On facts, land leased out to one
in 1924 for thirty years under the 1895 Act, who sold it to
predecessor-in-interest of the respondents vide sale deed of 1947
and thereafter the land was recorded in his name and on his death
his successor, and they are continuously recorded as Bhumidhar of
the said land - Different set of legal proceedings which proceeded
in parallel - Issues pertaining to sale of ownership rights or
leasehold rights to the respondents; status of the respondents under
the applicable tenancy law and if the status entitled them for
ownership of the suit land; if the leasehold rights validly transferred
under the 1924 lease deed; determination of the 1924 lease deed,
breach of the condition of prior approval and expiry of initial lease
deed period; and was it possible for predecessor of respondents to
be accorded the status of 'Occupancy Tenant' under the 1939 Act,
which resulted in them being subsequently accorded the status of
'Sirdar' under the Zamindari Notification - On appeal, held: High
Court while deciding the issue of ownership in favour of the
respondents on the strength of the Sale Deed, have come to different
conclusions as such to the nature of the instrument - Both these
parallel findings by the High Court have been without any serious
examination of the nature of the Sale Deed itself - Reasoned finding
on both the nature of Sale Deed as well as whether the same was
violative of conditions of the 1924 Lease Deed very important,
because of which the issue of determination of lease remains
unanswered - High Court made sweeping remarks in respect of the
tenancy status without any serious consideration as to whether the
same were legally tenable or not - No reference is made to any
proceedings wherein the status as an occupancy tenant was ever
granted to the predecessor of the respondent and, if so, how and
when the same culminated into the status of 'Sirdar' under the
Zamindari Notification - Thus, there are compelling circumstances
[2023] 10 S.C.R. 936 : 2023 INSC 550
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which have been left unanswered by the courts below, because of
which determination of several factual issues have been left in limbo
- In dearth of appropriate records, ownership rights in respect of
an immovable property cannot be decided casually - Thus, the Court
is reluctant to give a final opinion on the matter until the Court is
satisfied on the basis of the entirety of documents - Matters remanded
to the High Court for a fresh adjudication on the issues formulated,
even though pending before this Court for more than 15 years -
Government Grants Act of 1895 - U.P. Tenancy Act, 1939.
Partly allowing the appeals, the Court
HELD: 1.1 The High Court while deciding the issue of
ownership in favour of Respondents on the strength of the Sale
Deed, have come to different conclusions as such to the nature
of the instrument. Respondents in the plaint filed by them in 1983
Injunction Suit, the respondents claim to tenure holders who were
later accorded the status of 'Bhumidhar' on the basis of Zamindari
Notification. On the other hand, in the Second Writ Petition, the
respondents stated that the Sale Deed was actually in respect of
the title per se. The recitals of the Sale Deed highlight that the
relationship between JV and ML seemed more akin to that of a
vendor vendee in a title sale than that of the sale of leasehold
rights. [Paras 37 and 38][965-B-C; 966-E]
1.2 In respect of the two parallel findings given by the High
Court, the respondents for the first time before this Court have
given up the finding which treated the Sale Deed as a sale of title.
However, it is noted that both these parallel findings by the High
Court have been without any serious examination of the nature
of the Sale Deed itself. The High Court erred in respect of these
findings and as the same was essential to determine the present
dispute on merit, it is deemed to be a fit case to exercise the
power of remand. A

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STATE OF UTTARAKHAND AND ANR.
v.
RAVI KUMAR (DECEASED) THROUGH LRS AND OTHERS
(Civil Appeal No. 4983 of 2009)
MAY 18, 2023
[SURYA KANT AND J. K. MAHESHWARI, JJ.]
Tenancy laws: Title claim - On facts, land leased out to one
in 1924 for thirty years under the 1895 Act, who sold it to
predecessor-in-interest of the respondents vide sale deed of 1947
and thereafter the land was recorded in his name and on his death
his successor, and they are continuously recorded as Bhumidhar of
the said land - Different set of legal proceedings which proceeded
in parallel - Issues pertaining to sale of ownership rights or
leasehold rights to the respondents; status of the respondents under
the applicable tenancy law and if the status entitled them for
ownership of the suit land; if the leasehold rights validly transferred
under the 1924 lease deed; determination of the 1924 lease deed,
breach of the condition of prior approval and expiry of initial lease
deed period; and was it possible for predecessor of respondents to
be accorded the status of 'Occupancy Tenant' under the 1939 Act,
which resulted in them being subsequently accorded the status of
'Sirdar' under the Zamindari Notification - On appeal, held: High
Court while deciding the issue of ownership in favour of the
respondents on the strength of the Sale Deed, have come to different
conclusions as such to the nature of the instrument - Both these
parallel findings by the High Court have been without any serious
examination of the nature of the Sale Deed itself - Reasoned finding
on both the nature of Sale Deed as well as whether the same was
violative of conditions of the 1924 Lease Deed very important,
because of which the issue of determination of lease remains
unanswered - High Court made sweeping remarks in respect of the
tenancy status without any serious consideration as to whether the
same were legally tenable or not - No reference is made to any
proceedings wherein the status as an occupancy tenant was ever
granted to the predecessor of the respondent and, if so, how and
when the same culminated into the status of 'Sirdar' under the
Zamindari Notification - Thus, there are compelling circumstances
[2023] 10 S.C.R. 936 : 2023 INSC 550
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which have been left unanswered by the courts below, because of
which determination of several factual issues have been left in limbo
- In dearth of appropriate records, ownership rights in respect of
an immovable property cannot be decided casually - Thus, the Court
is reluctant to give a final opinion on the matter until the Court is
satisfied on the basis of the entirety of documents - Matters remanded
to the High Court for a fresh adjudication on the issues formulated,
even though pending before this Court for more than 15 years -
Government Grants Act of 1895 - U.P. Tenancy Act, 1939.
Partly allowing the appeals, the Court
HELD: 1.1 The High Court while deciding the issue of
ownership in favour of Respondents on the strength of the Sale
Deed, have come to different conclusions as such to the nature
of the instrument. Respondents in the plaint filed by them in 1983
Injunction Suit, the respondents claim to tenure holders who were
later accorded the status of 'Bhumidhar' on the basis of Zamindari
Notification. On the other hand, in the Second Writ Petition, the
respondents stated that the Sale Deed was actually in respect of
the title per se. The recitals of the Sale Deed highlight that the
relationship between JV and ML seemed more akin to that of a
vendor vendee in a title sale than that of the sale of leasehold
rights. [Paras 37 and 38][965-B-C; 966-E]
1.2 In respect of the two parallel findings given by the High
Court, the respondents for the first time before this Court have
given up the finding which treated the Sale Deed as a sale of title.
However, it is noted that both these parallel findings by the High
Court have been without any serious examination of the nature
of the Sale Deed itself. The High Court erred in respect of these
findings and as the same was essential to determine the present
dispute on merit, it is deemed to be a fit case to exercise the
power of remand. Additionally, despite these findings being a
serious lacuna to reach a conclusive decision, the appellants have
raised no serious objection to the modified stand taken by the
respondents wherein they stated that the Sale Deed was in respect
of leasehold rights only. [Paras 39 and 40][966-F-H]
1.3 It can be safely deduced that the appellants did contend
the issue of prior approval from the initial stage itself. Apart from
STATE OF UTTARAKHAND AND ANR. v. RAVI KUMAR
(DECEASED) THROUGH LRS AND OTHERS
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the said eviction suit, two other proceedings need to be
highlighted, i.e. consolidation proceedings which occurred
between 1959-1960 and acquisition proceedings for a portion of
land initiated by the military authorities in 1963. In respect of the
consolidation proceedings, the stand taken by State cannot be
deduced as no document or order in respect of the same has
been produced. However in respect of the acquisition, order dated
22.11.1965 passed by the concerned Land Acquisition Officer,
which granted compensation to the predecessor of respondents
has been brought on record wherein it must be noted that
compensation was granted on the basis of revenue entries and
without any serious examination of the validity of the same.
Hence, both these proceedings cannot be treated as an admission
of validity of revenue entries or as accepting the waiver of breach
of the condition in respect of prior approval from the Deputy
Commissioner. [Para 42][968-B-D]
1.4 The order dated 07.08.1980 passed by the
Commissioner, Kumaon, in the mutation proceedings makes it
apparent that the approval from the appropriate authority as per
the lease deed, i.e. Deputy Commissioner was granted only on
06.12.1948 which is more than a year later than the Sale Deed.
On the contrary, as per the recitals contained in the Sale Deed, it
is mentioned that due permission was obtained and the
consequent mutation was effected in the office of Superintendent,
Tarai and Bhabar, Nainital before its execution. Hence, this abovementioned recital leads to immense confusion as to whether any
approval was ever granted at the first instance. Even if such
approval was granted, no indication is given as such to actually
who granted the approval and if it is assumed that a subordinate
authority granted the approval, no statutory instrument is
produced to highlight whether this delegation was possible or
not. The subordinate courts as well as the High Court have merely
relied on the order dated 07.08.1980 passed by the Commissioner,
Kumaon to come to a sweeping conclusion that a valid approval
existed in favor of the predecessor of the respondents despite
glaring contradictions which were on the face of the record.
Consequently, on this issue of breach of the conditions of the
1924 Lease Deed, this Court fails to arrive at a decisive conclusion
as neither the original record nor its true copies have been placed
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on record of this Court or the High Court as well as the other
forums. Finally, while the respondents argued that until there
existed an express refusal by the Deputy Commissioner for sale
of leasehold rights, the sale was valid especially in light of post
facto approval granted by the Deputy Commissioner as has been
recorded in order dated 07.08.1980 passed by the
Commissioner. [Paras 43-45][968-H; 969-A-F]
1.5 It is settled law that any contractual term or condition
is to be interpreted as per the natural and ordinary meaning
appended to the language used by the parties unless the same
leads to absurdity. In the present case, condition (e) of the 1924
lease deed makes it clear that no rights in the Suit Land are
allowed to be transferred or created "without the written approval
of the Deputy Commissioner of Nainital" which bears the crystal
clear requirement of the prior assent needed from the Deputy
Commissioner. This interpretation is also supported from the
fact that leases under the Government Grants Act of 1985 are to
be strictly constructed as per the terms of the grant, regardless
of any other provisions of the law. Even otherwise, the High Court
and other authorities have proceeded on the premise of a valid
approval. They are completely silent on whether the post facto
approval could be granted and if so, who granted such approval.
Again, no records are produced and its not known whether any
approval was ever actually granted and when or by whom. [Paras
46 and 48][970-F-G; 971-A, E-F]
1.6 A reasoned finding on both the nature of Sale Deed as
well as whether the same was violative of conditions of the 1924
Lease Deed goes to the heart of the present dispute, because of
which the issue of determination of lease remains unanswered.
Hence, in light of the same, the respondents' claim on the strength
of doctrine of holding over or through doctrine of acquiescence
as well as the reliance on the conduct of appellants, remains in
doldrums as the same are hinged on the finding in respect of
determination of lease. It is also highlighted that decades have
passed in litigation, and it would be extremely iniquitous to remand
the case to revenue authorities at such a belated stage. [Para
49][971-G; 972-A-B]
STATE OF UTTARAKHAND AND ANR. v. RAVI KUMAR
(DECEASED) THROUGH LRS AND OTHERS
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1.7 Even assuming that JV was deemed to have been
granted status as an 'Occupancy Tenant' under the 1939 Act, it
should be noted that his status as an 'Occupancy Tenant' cannot
be transferred to the predecessor of respondents in light of
Section 33 of the 1939 Act. The only exception to the bar on
transfer of status as an 'Occupancy Tenant' in the section 33 is
under sub-clause (b) of clause (2) wherein reference is made to
Section 251 which in turns deals with sale of occupancy rights
when the tenant himself is facing the execution of a decree for
arrears of rent. As no factual situation has been indicated stating
that JV had suffered a decree for rent arrears, there is no surety
as to how any transfer of 'Occupancy Tenant' status in favour of
the predecessor of respondents was sustainable. This confusion
further indicates that the predecessor of respondents could not
have been accorded the status of 'Sirdar' under the Zamindari
Notification on the strength of revenue entries which recorded
him as an 'Occupancy Tenant'. [Para 52][973-B, G-H; 974-A-B]
1.8 The High Court again made sweeping remarks in
respect of the tenancy status without any serious consideration
as to whether the same were legally tenable or not. No reference
is made to any proceedings wherein the status as an occupancy
tenant was ever granted to the predecessor of the respondent
and, if so, how and when the same culminated into the status of
'Sirdar' under the Zamindari Notification. These proceedings
which ultimately led to the grant of status of 'Bhumidhar' in favour
of the predecessor of respondents for the first time, could have
potentially served as the litmus test for the validity of these
revenue entries. [Para 53][974-B-D]
1.9 The High Court held that predecessor of respondents
was rightly accorded the status of 'Sirdars' under the Zamindari
Notification on the ground that they were leaseholders governed
by the Government Grants Act of 1895. However, this finding
again appears unsustainable because there is no proper factual
analysis as to when the 1924 Lease Deed stood determined or
whether the same subsisted after the initial period of thirty years.
[Para 54][974-D-E]
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1.10 Initially the 1939 Act was not applicable to the Suit
Land as the concerned area where it is situated was excluded
from the purview of the 1939 Act, as it was specifically included
in the First Schedule. Any future application of the 1939 Act in
respect of the Suit Land was supposed to be through a separate
notification, but the same has again not been produced in these
proceedings or before any forum, which further dissuades from
rendering any final opinion at this stage. The same aspect has
been highlighted by the appellants who contend that the area in
which the Suit Land is situated was governed by the Kumaon
Tenancy Rules of 1918. On the other hand, the respondents have
produced on record a G.O. No. 5678/ 1-B-1212~B-19 dated the
30.04.1948 which indicates the possibility of hereditary rights
being accrued on predecessor of Respondents under the 1939
Act but again, this Court constrained to give any finding on the
same because of the lack of proper documents on record to
ascertain the tenancy status of the Respondents. Hence, on this
ground also the instant appeals are liable to be remanded back
so that the relevant statutory notifications, original records can
be placed before the High Court to enable it to determine the
applicable tenancy law and their impact on the alleged rights of
the respondents. [Paras 55 and 56][974-F-H; 975-B-D]
1.11 These appeals have been pending before this Court
for more than 15 years. In normal circumstances, this Court would
have ventured to decide the issues but in light of the
abovementioned observations and dearth of appropriate records,
ownership rights in respect of an immovable property cannot be
decided casually. The hands are further tied because of the fact
that the ownership of certain portions of the Suit Land has
apparently changed hands on account of subsequent sale by the
respondents. Furthermore, the value of the Suit Land has
increased exponentially during the entire period of litigation and
the relevant parties have also done certain valuable
developments. Any decision now cannot be based on conjectures
and surmises or on the basis of mere guesswork. Hence, the
Court is reluctant to give a final opinion on the matter until the
Court is satisfied on the basis of the entirety of documents which
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(DECEASED) THROUGH LRS AND OTHERS
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showcase how the ownership or possessory rights were created
on the Suit Land. [Paras 57 and 58][975-D-G]
1.12 There are indeed compelling circumstances which
have been left unanswered by the courts below, because of which
determination of several factual issues have been left in limbo.
Therefore, in light of the peculiar situation, it is expedient to
remand the appeals back to the High Court for fresh adjudication
on the issues formulated. In light of the long-drawn pendency of
these disputes, the High Court is requested to take up these
matters at the earliest and dispose of the same as early as
possible. The impugned judgments of the High Court are set
aside, and the matters are remanded to the High Court for a
fresh adjudication. It is made clear that casual findings/
observations made by Revenue Authorities or the Civil Court
shall not be accepted at their face value unless the High Court is
satisfied on a thorough inspection of the original or certified copies
of the relevant record. The parties are directed to keep status
quo until the matters are decided afresh by the High Court. [Paras
59-61][975-H; 976-A-E]
U.P. Avas Evam Vikas Parishad v. Friends Coop.
Housing Society Ltd. (1995) 3 Supp SCC 456 : [1995]
3 SCR 729; State of Punjab v. Gurdev Singh (1991) 4
SCC 1 : [1991] 3 SCR 663; State of Kerala v. M.K.
Kunhikannan Nambir Manjeri Manikoth Naduvil (1996)
1 SCC 435 : [1995] 6 Suppl. SCR 139; Tayabbhai M.
Bagasarwalla v. Hind Rubber Industries Pvt. Ltd. (1997)
3 SCC 443 : [1997] 2 SCR 152; State of U.P. v. Zahoor
Ahmad (1973) 2 SCC 547 : [1974] 1 SCR 344; M.O.H.
Uduman v. M.O.H. Aslum (1991) 1 SCC 412 : [1990] 2
Suppl. SCR 663; Life Insurance Corpn. of India v.
Escorts Ltd. (1986) 1 SCC 264 : [1985] 3 Suppl. SCR
909; Lord Krishna Textiles Mills Ltd. v. Workmen AIR
1961 SC 860 : [1961] SCR 204 - referred to.
Smith v. East Elloe Rural District Council [1956] 1 All
ER 855; Investors Compensation Scheme Ltd vs. West
Bromwich Building Society [1998] 1 All ER 98 -
referred to.
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Shambhu Dayal Singh, The Law of Tenancy in U.P. (3rd
edn, Empire Press, 1949) 131 - referred to.
Case Law Reference
[1995] 3 SCR 729
referred to
Para 33 (a)
[1991] 3 SCR 663
referred to
Para 33 (d)
[1995] 6 Suppl. SCR 139
referred to
Para 33 (d)
[1997] 2 SCR 152
referred to
Para 33 (d)
[1974] 1 SCR 344
referred to
Para 33 (f)
[1990] 2 Suppl. SCR 663
referred to
Para 46
[1985] 3 Suppl. SCR 909
referred to
Para 47
[1961] SCR 204
referred to
Para 47
CIVIL APPELLATE/INHERENT JURISDICTION: Civil Appeal
No. 4983 of 2009.
From the Judgment and Order dated 05.08.2006 of the High Court
of Uttaranchal at Nainital in RA No.150 of 2005 in WP No. 920 of 2001,
RA No. 151 of 2005 in WP No. 7176 of 2001 and RA No. 152 of 2005
in WP No. 808 of 2002.
With
Civil Appeal Nos. 4988, 4984, 4985 Of 2009, Contempt Petition
(Civil) Nos. 165-168 of 2007 in Civil Appeal No. 4983 of 2009 and Civil
Appeal Nos. 4989-4992 of 2009.
Harin P. Raval, Sr. Adv., Atul Sharma, Vikas Negi, A. Venayagam
Balan, Krishnam Mishra, Rajeev Kumar Dubey, Ashiwan Mishra,
Kamlendra Mishra, Prashant Kumar, Aditya Dev Triguna, Saurabh S.
Sinha, Satyajit A Desai, Satya Kam Sharma, Abhinav K. Mutyalwar,
Siddharth Gautam, Gajanan N. Tirthkar, Ms. Anagha S. Desai, Manish
Kumar, Amit Kumar, Rahul Prabhakar, Ms. Aparajita Jha, Karan Singh,
Mahesh Tiwari, Rakesh K. Sharma, P. N. Gupta, Advs. for the appearing
parties.
STATE OF UTTARAKHAND AND ANR. v. RAVI KUMAR
(DECEASED) THROUGH LRS AND OTHERS
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The Judgment of the Court was delivered by
SURYA KANT, J.
1. The core question that arises for our consideration in the present
set of connected matters pertains to the ownership of land measuring
183 bigha 8 biswa which is equivalent to 28.56 acres of land, bearing
Khasra Nos. 2, 3/1, 3/2, 4 to 28/1, 28/2, to 49 and situated in Village
Haripur, Tehsil Haldwani, District Nainital (hereinafter, 'Suit Land').
2. Since these appeals arise out of a complex factual scenario
and different sets of legal proceedings which proceeded in parallel, it
would be appropriate to discuss the same at length before delving into
the issue of law, which require adjudication before us.
A. FACTS
A.1 THE COMMON FACTS: 1924 SALE DEED, 1967
EVICTION SUIT AND 1978 MUTATION
PROCEEDINGS
3. The genesis of these disputes began on 20.06.1924, when one
Mr. John Vaughn, son of Mr. Charles Vaughn obtained a lease of the
Suit Land (hereinafter, '1924 Lease Deed') from the erstwhile colonial
rulers through the Secretary of State for India in Council for thirty years
on payment of rent as agreed between the parties. The lease was also
extendable for another thirty years and was subject to certain conditions,
which are reproduced as follows: -
"X-X-X-X
(a) The lessee to pay the first period of thirty years the
yearly rental of No.183-6-4 clear of all deductions on the
first day of March in each year at the Haldwani Tehsil or at
such other place as the Deputy Commissioner of Nainital
shall form time to time appoint in this behalf and also from
time to time and at all times during the continuance of the
said lease pay and discharge all rates, taxes, charges and
assessment of every description which are now or may at
any time hereafter during the said lease be assessed,
charged or imposed upon the land hereby demised.
(b) Lessee agree that the said plot of land will be used for
residential purposes, for poultry farming for orchards and
for vegetable cultivation only.
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(c) The lessee agrees that he will submit the plan of any
building which he wish to erect or of any existing building
which he has to modify to the Deputy Commissioner of
Nainital for approval before starting building operations,
that he will complete the sanctioned building within two
years of the receipt of approval and that he will keep every
building erected by him and also the Government buildings
standing on the said plot of land and shown on the plan
annexed in good and substantial repair and condition both
externally and internally.
(d) The lessee agrees that he shall not claim the benefits
which agricultural tenant and lessees are given in the Tarai
and Bhaber estates.
(e) The lessee agrees that he will not transfer or sublet
said plot of land without the written approval of the Deputy
Commissioner of Nainital.
(f) The lessee agrees that he shall be responsible for the
observance of Estate rules in force now or at any time
hereafter regarding sanitation, reporting cattle disease etc.
(g) The lessee agrees that he shall have no right to any
minerals in the aid plot of land.
(h) The lessee further agrees that if he dies heirless before
the expiry of lease as also on the expiry of lease, the land
hereby demised and all buildings standing on the land shall
revert to the lesser without compensation.
(i) The lessee shall have the right to erect masonry wall
not exceeding 4.5 feet in height or a wire fence along the
boundary of the said land hereby demised.
(j) The lessee shall have the use of a share of the water
when available for irrigation purposes from the tank fixed
approximately at mile 6 furlong 70 feet left of the main
gailuwar canal, but the lessor reserve on control over this
outlet which the lessor is empowered to decrease or close
whenever such decrease or closure is required on account
of short supplies in or on account of executing repairs,
extensions or improvements canal works etc. and the lessee
STATE OF UTTARAKHAND AND ANR. v. RAVI KUMAR
(DECEASED) THROUGH LRS AND OTHERS [SURYA KANT, J.]
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SUPREME COURT REPORTS
[2023] 10 S.C.R.
shall have no right to claim compensation for any damage
done by such reduction or closer of the water supply to the
said plot of land.
(k) The lessee shall have and unrestricted right to dispose
of the produce of the land leased to him in any manner he
may choose and the lessee shall be allowed to clear and
use for his requirements the trees and bushes standing on
the land hereby demised.
(l) If there be any breach by the lessee of any covenant
herein before contained the Deputy Commissioner of
Nainital may, not withstanding the waiver of any previous
breach by the lessee giving the Deputy Commissioner of
Nainital the right of re-entry, enter upon any part of whole
of the land hereby demised or of the buildings standing on
the said plot of land and thereupon the said land and buildings
shall remain to the use of and be vested in the Secretary of
State and the lessee shall not been titled to any
compensation for any building erected by him or for any
improvements made by him upon the land demised and this
demise shall absolutely determine.
(m) The Deputy Commissioner of Nainital agrees to stamp
the lease at his expense.
X-X-X-X"
(Emphasis Applied)
4. After the execution of the 1924 Lease Deed which was
registered on 22.08.1925, it appears that revenue entries were made in
favour of one Manohar Lal, who is said to have purchased the Suit Land
through a sale deed dated 17.11.1947 (hereinafter, 'Sale Deed'). The
same Manohar Lal is also stated to be the paternal uncle of the primary
contesting respondents before us, namely Virendra Kumar and Ravi
Kumar (hereinafter, 'Respondents'), as the relief sought by all the
remaining private parties in connected matters flows from their claim on
the Suit Land. It would be appropriate at this stage to reproduce the
relevant portion of the Sale Deed, which records the factum of prior
permission as required under the 1924 Lease Deed. The same is as
follows -
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"......whereas the vendor has full right to sell the aforesaid
buildings and constructions with the permission of the
Deputy Commissioner, Nainital for which the vendor has
obtained the necessary permit from the proper authorities
and mutation has been duly effected in the name of the
vendee on 25.9.47 in the Government records in the office
of the Superintendent, Tarai & Bhabar, Nainital......"
(Emphasis Applied)
5. Thereafter, it is to be noted that revenue records continued to
depict the name of the predecessor of the Respondents as 'Occupancy
Tenant' on the strength of the said Sale Deed. Interestingly, at the expiry
of thirty years in 1954, it is admitted that predecessor of Respondents
applied for renewal and paid enhanced rent as per the 1924 Lease Deed.
After that, consolidation proceedings took place between 1959-1960
wherein revenue entries remained in favour of Manohar Lal and even
compensation was also awarded for a portion of Suit Land which was
acquired by the military authorities in 1963.
6. It was not until 1967 that the State filed a suit for possession of
the Suit Land along with the damages before the concerned District
Judge. During the pendency of the said suit, UP Public Premises (Eviction
of Unauthorised Occupants) Act, 1972 was promulgated and accordingly,
the said suit stood transferred to the Prescribed Authority under the Act.
In the interregnum before the final adjudication took place before the
Prescribed Authority, it is pertinent to note that Bhumidhari certificates
were also issued to the predecessor of Respondents under the applicable
tenancy law by depositing the amount which was equal to twenty times
the land revenue for the Suit Land. Eventually, the Prescribed Authority
dismissed the suit on 25.03.1975 as being non-maintainable in view of
the exclusion clause contained in the UP Public Premises (Eviction of
Unauthorised Occupants) Act, 1972 whereby the lands which were held
by any class of tenure-holder are exempted from the applicability of the
said Act. The State's appeal against the said order before the District
Judge was also dismissed on the grounds of being time-barred and the
suit being non-maintainable. The relevant extract of the District Judge's
order dated 30.07.1976 is as follows -
"There are document on record to show that in 1366 Fasli
the Respondent were recorded as Occupancy tenants.
STATE OF UTTARAKHAND AND ANR. v. RAVI KUMAR
(DECEASED) THROUGH LRS AND OTHERS [SURYA KANT, J.]
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Similar entries exist on the Khatauni for the year up to 1375
Fasli and in the Khatauni for 1376 Fasli the Respondents
are recorded Sirdar. The learned Counsel for the
respondents has referred me to section 2(b) which defines
the expression "Premises". There are certain exception
mentioned and sub section (ii) is in respect of land by a
tenure holder under the U.P. Tenancy Act. The land in
dispute has to be excluded from the expression "Premises"
and the prescribed authority was justified in holding so.
The appeal must, therefore be dismissed."
(Emphasis Applied)
7. Hence, the suit which was instated in 1967 was never
adjudicated on merits per se in respect of the claim of tenancy by the
Respondents, but on the technical grounds of the bar contained in the
UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 as
well as on the ground that the appeal against the Prescribed Authority's
order was time barred. However, the District Judge's order dated
30.07.1976 remained unchallenged and ultimately, after the demise of
Manohar Lal, who died issueless, mutation proceedings were initiated in
1978 by the present Respondents on the basis of a family settlement.
8. While the relevant orders in the said mutation proceedings have
not been made part of the records produced before us, it is stated that
the Tehsildar, Haldwani passed an order dated 04.07.1978 in favour of
the Respondents. This order was later confirmed by another order dated
30.08.1978 passed by the concerned SDM directing the Tehsildar,
Haldwani to mutate the Suit Land in favour of Respondents in revenue
records. Against the order of the SDM, the State preferred an appeal
before the Commissioner, Kumaon which was rejected vide order dated
07.08.1980 and even the revision application against the same was
dismissed on 31.12.1980. It is pertinent to note that during the proceedings,
a vernacular copy of the order dated 07.08.1980 was produced before
us, which we will refer to at a later stage.
9. In the end, because of the fact that the Respondents were
successful in the mutation proceedings, the Pargana Officer, Haldwani
passed an order dated 30.09.1981 accepting the partition between the
concerned Respondents, i.e. between Virendra Kumar and Ravi Kumar,
on the basis of family settlement. Meanwhile, orders dated 07.08.1980
and 31.12.1980 were challenged before the Board of Revenue in revision
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proceedings, but the same were dismissed via order dated 20.01.1982
with the following observation -
"In fact, the challenge which is raised on behalf of the
government, is in respect of ownership of the land and this
matter cannot be decided finally in the mutation proceeding.
Therefore, the matter should be proceeded in other
competent court."
Thus, the issue of ownership again remained unadjudicated even
at this stage.
10. For the ease of analysis, the key events in these proceedings
are summarised as follows -
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A.2 THE CANCELLATION OF REVENUE ENTRIES AND
RESTRAINT ON SALE OF LAND: CIVIL APPEAL NO 4983
OF 2009 AND CIVIL APPEAL NO 4985 OF 2009
11. The subject matter of these appeals arose from an order dated
31.12.1981 passed by the District Collector, Nainital (hereinafter,
'Expunction Order') during the pendency of the revision proceedings
before the Board of Revenue in the abovementioned mutation
proceedings. In the said order, the Collector noted that on perusal of the
revenue records, it was found that after the initial lease period of thirty
years had expired, the Respondents had illegally gotten themselves
recorded as 'Bhumidhar' of the Suit Land in the revenue records.
Accordingly, the Collector directed the expunction of the revenue entries
in favour of the Respondents and recommended that eviction proceedings
be initiated against them.
12. Against the Expunction Order, the Respondents preferred a
revision before the Commissioner, Kumaon who passed an interim order
dated 20.01.1982 directing that no revenue entries should be deleted in
light of the fact that the matter was pending before the Board of Revenue
in mutation proceedings. However, as noted above, the Board of Revenue
dismissed the said pending revision in the mutation proceedings on the
same date. Consequently, it is stated that despite the abovementioned
interim order dated 20.01.1982 of the Commissioner, the Tehsildar acted
on Expunction Order and proceeded to expunge the revenue entries in
favour of Respondents.
13. Afterwards, on 16.08.1983, the Commissioner, Kumaon
dismissed the revision pending against the Expunction Order noting that
the same was not maintainable in view of the fact that no provision
provided for revision of an order passed under the Government Grants
Act of 1895 as applicable to the then State of Uttar Pradesh vide
amendment made in 1960. The relevant provisions after the 1960
amendment to the Government Grants Act of 1895 are as follows -
"2. (1) Transfer of Property Act, 1882, not to apply to
government grants.-Nothing contained in the Transfer of
Property Act, 1882, shall apply or be deemed ever to have
applied to any grant or other transfer of land or of any
interest therein, heretofore made or hereafter to be made,
by or on behalf of the Government to or in favour of any
person whomsoever; and every such grant and transfer shall
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be construed and take effect as if the said Act had not been
passed.
(2) U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 not
to affect certain leases made by or on behalf of the
Government.-Nothing contained in the U.P. Tenancy Act,
1939, or the Agra Tenancy Act, 1926, shall affect, or be
deemed to have ever affected any rights, created, conferred
or granted, whether before or after the date of the passing
of the, Government Grants (U.P. Amendment) Act, 1960,
by leases of land by, or on behalf of, the Government in
favour of any person; and every such creation, conferment
or grant shall be construed and take effect notwithstanding
anything to the contrary contained in the U.P. Tenancy Act,
1939, or the Agra Tenancy Act, 1926.
(3) Certain leases made by or on behalf of the Government to
take effect according to their tenor.-All provisions,
restrictions, conditions and limitations contained in any such
creation, conferment or grant referred to in Section 2, shall
be valid and take effect according to their tenor; any decree
or direction of a court of law or any rule of law, statute or
enactment of the legislature, to the contrary
notwithstanding:
Provided that nothing in this section shall prevent, or be
deemed ever to have prevented, the effect of any enactment
relating to the acquisition of property, land reforms or the
imposition of ceiling on agricultural lands."
It must also be highlighted that the Respondents, against the
aforesaid action of the Tehsildar wherein he expunged the revenue entries
in favor of Respondents, preferred a contempt petition before the
Allahabad High Court, which was dismissed in limine on 16.08.1986
after the concerned officials tendered unqualified apologies.
14. Aggrieved by the said order dated 16.08.1983 of the
Commissioner, the Respondents filed a revision before the Board of
Revenue, which was heard by a Single Member who vide its order dated
22.01.1993 (hereinafter, 'Single Member's Order') set aside the
Expunction Order. The Single Member's Order noted that the Expunction
Order was not passed under the Government Grants Act of 1895 but
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under the applicable land revenue laws, making it susceptible to revisionary
jurisdiction. It furthermore noted that no enquiry report was ever obtained
nor was any opportunity given to Respondents for being heard while
passing the Expunction Order.
15. Against the Single Member's Order, the District Magistrate
of Nainital wrote a letter to the Board of Revenue seeking permission to
challenge the same through a writ petition and during the interregnum,
the State filed a writ petition in 1996 against the Single Member's Order
(hereinafter, 'First Writ Petition'). Meanwhile, the Board of Revenue
acted on the abovementioned letter addressed by the District Magistrate
of Nainital and constituted a Three Member Bench to scrutinise the
Single Member's Order.
16. The Three Member Bench in turn vide its order dated
20.12.1996 (hereinafter, 'Three Member Bench's Order') held that
Single Member's Order was without any jurisdiction as no power for
revision existed under the land revenue laws and also noted that the
Expunction Order was passed under the Government Grants Act of
1895. It furthermore noted that the Collector had rightly issued the
Expunction Order as the Respondents illegally obtained revenue entries
in their favour in collusion with revenue officials after the expiry of the
initial lease period of thirty years. Hence, it observed that the Suit Land
stood automatically resumed in favour of the State after the expiry of
the lease period, and no notice was required to be given to the
Respondents at the time of passing the Expunction Order. Against this
Three Member Bench's Order, Respondents filed a writ petition in 1997
(hereinafter, 'Second Writ Petition').
17. Afterwards, a review petition was filed before the Single
Member of the Board of Revenue in view of the observations in the
Three Member Bench's Order. Accordingly, the Single Member on
03.03.1997 directed that the review petition be placed before the same
bench that rendered the Three Member Bench's Order. In turn, the said
bench on 18.12.1997 is said to have passed an order stating that Three
Member Bench's Order did not alter the Single Member's Order and
directed that the review should be filed before the Single Member only.
Though, it is stated by the Respondents that no such review proceedings
took place as none of the parties pursued it any further and instead the
matter was kept pending in the writ proceedings as noted above. However,
it has come on record that a review was indeed filed by the Appellants,
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which was directed to be heard urgently and later on was transferred to
the revenue court of Additional Chief Revenue Commissioner, Nainital
after the formation of State of Uttarakhand.
18. During the pendency of the aforesaid writ proceedings as
well as the review before the revenue court, the District Magistrate
passed orders dated 02.05.2001 and 21.05.2001 (hereinafter, 'Restrain
Orders') directing the Special Land Acquisition Officer and the
concerned Tehsildar to restraint the Respondents from selling, transferring
or mutating the Suit Land or any part thereof. Aggrieved by the said
orders, the Respondents filed an injunction suit, but the same was
dismissed on 06.06.2002 on account of being non-maintainable. Upon
dismissal of the suit, the Respondents instead filed a revision petition
before the Additional Chief Revenue Commissioner, who vide his order
dated 22.07.2002, declared Restrain Orders as void and illegal. It also
noted that the Single Member's Order had attained finality, the State
recognised ownership of the Respondents as they granted them
compensation for the land acquired by military authorities in 1963 and
that the revenue entries were longstanding in favour of the Respondents.
It must be noted that the Appellants filed a writ petition against the order
dated 22.07.2002 before the High Court (hereinafter, 'Third Writ
Petition').
19. Ultimately all three writ petitions were heard together by the
High Court, which vide the impugned judgement dated 07.10.2005 in
Civil Appeal No 4985 of 2009 decided the matter in favour of
Respondents. The High Court noted that, firstly the predecessor of the
Respondents validly got the approval of the Commissioner as required
under the 1924 Lease Deed, which was reflected in the order dated
07.08.1980 passed by the Commissioner in the mutation proceedings.
Secondly, the revenue entries have long been standing in favour of the
Respondents since 1948 which reflects that they have been accorded
the status of 'Bhumidhar'. Furthermore, it noted that these entries became
final since the Appellants never initiated any proceedings for their
correction, and these entries could not be deleted through an administrative
order as done by the Expunction Order. Consequently, the Respondents'
writ, i.e. Second Writ Petition, was allowed while the remaining writ
petitions filed by the Appellants were dismissed.
20. Interestingly after the High Court passed the impugned
judgement dated 07.10.2005, the pending review before the revenue
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court of Additional Chief Revenue Commissioner, Nainital was decided
in favour of the Appellants vide an order dated 21.10.2005 wherein the
authority set aside the Single Member's Order and directed that in view
of the Three Member Bench's Order, the Expunction Order must be
complied with.
21. Consequently, the Appellants preferred review applications
against the judgement dated 07.10.2005, which the High Court dismissed
vide the impugned judgement dated 05.08.2006 in Civil Appeal No 4983
of 2009 wherein it was noted that no ground for review was made out
by the Appellants and the observations of the order dated 07.10.2005
were reiterated.