- (1.) By means of this petition under Article 226 of the Constitution, a writ of Mandamus has been sought against the Respondents not to interfere in the peaceful possession of the Petitioner over 60 acres of land of plot no. 4 of village Baint Kheri, tahsil Bajpur, district Nainital and not to evict the Petitioner forcibly from the aforesaid land as also the residential house and tube-well situated thereon.
(2.) Relevant fact leading to this writ petition may be briefly indicated as follows : The original Petitioner Gurumukh Singh together with his party claimed to be Bhumidhar of the aforesaid land on the basis of lease granted in 1953. A notification under Section 4 of the Indian Forest Act, 1927 was issued on September 9, 1959, proposing to declare certain area including a part of plot no. 4 aforesaid as reserved forest. Gurumukh Singh preferred objections against the said notification. These objections were rejected on April 30, 1965 by the Forest Settlement Officer, Nainital, whose decision was challenged by Gurumukh Singh in the Court of District Judge, Nainital. The case was accordingly remanded back to the Forest Settlement Officer with a direction to provide opportunity to the parties to adduce evidence and decide afresh. After remand the Forest Settlement Officer vide order dated 8-3-72 released the 60 acres land of plot no. 4 in favour of Gurumukh Singh and his party on the ground that they were in cultivatory possession thereof since 1953. The Forest Department went in appeal against this order but this appeal was dismissed on 14-8-1972 by the District Judge, Nainital. The State Government challenged this decision of the District Judge by means of a writ petition bearing no. 106 of 1973 which was also dismissed by this Court on 18-2-1981. In the meantime, notification under Section 20 of the Indian Forest Act was issued on June 15, 1966 declaring the land of Babua Block along with 452 Bigha 12 Biswas land of plot no. 4 of village Baintkheri as reserved forest. Subsequent to the decision of this Court in the said writ petition, a joint survey measurement was made by the officers of the Forest and Revenue Departments on 28-2-1982 and it was reported that the Petitioner has also taken possession over some area of plot no. 3. The Divisional Forest Officer (Western Circle) district Nainital, thereafter, wrote a letter to the District Magistrate, Nainital on 20-4-1992 saying that the Petitioner had to be evicted and so police and P.A.C., be deputed for the purpose. The District Magistrate also suspended the licences of the original Petitioner's gun and revolver vide order dated 4-5-1982 on the basis of the police report that these arms might be used by the Petitioner at the time of eviction proceedings. This writ petition was accordingly filed by Gurumukh Singh saying that the Respondents wanted to forcibly evict him from the 60 acres land of plot no. 4 in the guise of a joint survey report dated 28-2-1982 which was illegal and without authority of law, particularly when a joint survey team had reported earlier on 16-9-1981 that survey measurement of village Baintkheri was not possible unless a fresh settlement of the said village was done.
(3.) In the counter affidavit filed on behalf of the Respondents, the claim over 60 acres of land of plot no. 4 has been given up by the Forest Department in para 17 thereof. It has, however, been asserted in the counter-affidavit that Gurumukh Singh encroached upon the other part of the reserved forest, particularly of Gabua Block and has raised constructions and fixed a tube-well on the land encroached upon. It has been further averred in the counter-affidavit that Gurumukh Singh has been cutting the uprooting timber and eucalyptus trees. Making a reference to the joint survey report dated 28-2-1982, it has been further claimed in the counter-affidavit that Gurnmukh Singh was found to have made encroachment over the reserved Forest land beyond 60 acres of land of plot no. 4.;