HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.41 (M/S) of 2015 Govind Ballabh Kashniyal @ Govind Kashniyal ………Petitioner Versus State of Uttarakhand & others ………Respondents Mr. Lokendra Dobhal, learned counsel for the petitioner. Mr. R.C. Joshi, Brief Holder for the State. Mr. Siddhartha Negi, learned counsel holding brief of Mr. B.S. Adhikari learned counsel for respondent no.4/1 appeared through video conferencing. Hon'ble Pankaj Purohit, J. (Oral) By means of this writ petition, the petitioner is seeking following reliefs:- “(i) Issue, Writ Order or direction in the nature of certiorari quashing the impugned order dated 09.06.2009, passed by respondent no.3 (Annexure No.7) order dated 08.11.2012 passed by Additional Commissioner, Nainital Camp at Pithoragarh (Annexure No.9) and order dated 07.08.2014 passed by respondent no.2 (Annexure No.12) to this writ petition. (ii) Issue, Writ Order or direction in the nature of mandamus directing the respondents not to implement the order dated 09.06.2009, passed by respondent no.3, order dated 08.11.2012 passed by Additional Commissioner, Nainital Camp at Pithoragarh and order dated 07.08.2014 passed by respondent no.2.” 2. The facts in brief are that one Hoshiyar Singh S/o Shri Daan Singh gifted Khata No.16 Khasra No.1891-92-93 to respondent no.4 late Shiv Singh vide registered gift deed dated 29.01.1979. In pursuance thereof, the name of respondent no.4 late Shiv Singh was mutated as Bhumidhar with transferable rights in the revenue record. On 1 10.02.1983, respondent no.4 sold the aforesaid land to the petitioner through registered sale deed for a sale consideration of Rs.7500/- and the name of the petitioner was mutated in the place of respondent no.4. The petitioner alleges that since the price of the disputed land began to increase respondent no.4 and his wife to dispossess him of the lawfully sold land obtained a certificate from the revenue authorities stating that the respondent no.4 belonged to scheduled tribe. They further filed an application before Assistant Collector 1st Class, Pithoragarh alleging that the petitioner purchased the disputed land without obtaining permission from the collector under Section 157-B of UPJA and LR Act. On 09.06.2009, Assistant Collector 1st Class, Pithoragarh allowed the application of respondent no.4 and rejected the mutation order in the name of the petitioner. Feeling aggrieved from the aforesaid order, the petitioner filed a revision before Commissioner, Kumaun Division under Section 219 of U.P. Land Revenue Act, 1901, which was dismissed on 08.11.2012 for non prosecution and non substituting the legal heirs of respondent no.4. 3. The learned counsel for the petitioner vehemently argued that as the price of the disputed land arose. Respondent no.4 became greedy and in connivance of revenue authorities obtained a forged caste certificate, so that, they could grab the disputed land. He further submits that their conduct is also evident from the fact that the wife of respondent no.4 lodged a false FIR under Section 323, 504 and 506 IPC and under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 2 against the petitioner in which he was eventually acquitted by the learned Session Judge and the acquittal was also affirmed by this Hon’ble Court and in that particular judgment, this Hon’ble Court categorically observed that Khampa Caste (to which the respondent no.4 belongs) does not come under the category of schedule tribe. 4. The learned counsel for the petitioner submitted that the court of Commissioner, Kumaun transferred the revision before Camp Court, Pithoragarh and the petitioner had no knowledge about the transfer of the case and since the petitioner’s wife also expired during the said period. He could not prosecute the case for want of knowledge. He was also not informed of respondent no.4 death therefore, he could not substitute the legal heirs of respondent no.4 and as soon as he got to know about his death he filed a substitution application on 09.04.2014 under Order 22 Rule 3 and 11 of CPC read with Section 151 CPC was substituting the legal heirs of respondent no.4 (deceased). That in spite of the said application, the court of Commissioner Kumaun dismissed the revision of the petitioner. 5. The learned counsel for the petitioner further submits that Khampa Caste does not come in purview of schedule tribe in Uttarakhand. The State of U.P. in 05.02.2000 has also issued a notification that no certificate regarding sub caste of Bhotia is to be issued. On 20.12.2006, the Caste Certificate of respondent no.4 was cancelled by Tehsildar Pithoragarh on the ground that the certificate has been issued to respondent no.4 by mistake. He further 3 submits that the Khampa Caste is only recognized in union territories as a schedule tribe and has not been recognized as a schedule tribe in any State. He further clarifies that the State of Uttarakhand only considers five castes i.e. Bhotia, Boksha, Jaunsari, Raji and Tharu as schedule tribes. Therefore, it can easily be seen that the review authorities had illegally granted respondent no.4 the schedule castes certificate, on the basis of which his lawfully acquired land was not given to him. 6. The learned counsel for respondent no.3 relying upon his counter affidavit submits that it is wrong to allege that the revenue authorities had issued the caste certificate illegally and in connivance with respondent no.4. He further submits that Camp Court, Pithoragarh rightly dismissed the revision of the petitioner as on the date of hearing neither the petitioner or his advocate was present. He further submits that the caste certificate of respondent no.4 was only cancelled on the ground that he should obtain his caste certificate from the Tehsil from which he originally belongs. He further submitted that the petitioner belongs to Bhotia community which is included in schedule tribes and the revenue officers after due inquiry has issued him the caste certificate. 7. Respondent no.4 in her counter affidavit submits that the true facts of the case are that the petitioner got mutated his name in the revenue records on the basis of forged sale deed dated 10.02.1983. As soon as late Shiv Singh got to know about the aforesaid forged deed, he made 4 an application to the competent authorities and S.D.M., Pithoragarh vide his detailed report dated 10.07.2006 has held that the alleged sale deed was forged and thereafter, the Assistant Collector 1st Class cancelled the mutation vide order dated 09.06.2009 and the court of Commissioner Kumanu also affirmed the said decision. She further submitted that the concerned S.D.M. vide order dated 07.07.2007 has restored the caste certificate of respondent no.4 as a schedule tribe. 8. Petitioner in his rejoinder affidavit reiterated that respondent no.4 belongs to Khampa community which is not a sub caste of both the community. He further submitted that his revision was dismissed illegally as he had no knowledge about the transfer of case to Camp Court, Pithoragarh and his wife had also expired during that period. Therefore, he could not in spite of due diligence prosecute the revision. He further submitted that the alleged sale deed is not forged and is a validly registered document. He further reiterated that the Tehsildar vide order dated 28.05.2007 has cancelled the schedule tribe certificate of respondent no.4. 9. Heard learned counsel for the parties. 10. Vide order dated 09.06.2009, the order of mutation made in favour of the petitioner was cancelled. The Revision No.100 (2008-09)/18, 2010-11 was dismissed by the Commissioner Kumaun Division, Camp Court at Pithoragarh for default vide order dated 08.11.2012. The application for restoration/substitution moved by the petitioner dated 09.01.2013 supported by an affidavit was 5 again dismissed by the Commissioner Kumaun Division vide judgment and order dated 07.08.2014. From perusal of the order dated 08.11.2012 and order dated 07.08.2014, it transpires that the learned Commissioner Kumaun Division, Nainital had not applied its judicial mind to facts and reasons given by the petitioner for his non appearance. 11. It was the case of the petitioner that without information to the petitioner, the case was listed in Camp Court, Pithoragarh which resulted into his non appearance and dismissal the application dated 09.01.2013 by the petitioner contained the detailed reasons and further prayer for substitution, but the learned Commissioner Kumaun Division failed to consider these reasons in right perspective. 12. Having considered the overall facts and circumstances of the case, this Court is of the view that lis between the parties should be decided on merits. 13. In such view of the matter, both the judgments and orders dated 08.11.2012 and 07.08.2014 passed by learned Commission Kumaun Division are hereby set aside. The matter is remanded to the learned Commission Kumaun Division to decide the application dated 09.01.2013 moved by the petitioner for restoration and substitution in accordance with law within three months from the date of this judgment. 14. The writ petition is partly allowed. (Pankaj Purohit, J.) 26.09.2025 Ravi 6