2025:UHC:4820-DB 1 HIGH COURT OF UTTARAKHAND AT NAINITAL HON’BLE THE CHIEF JUSTICE MR. G. NARENDAR AND HON’BLE SRI JUSTICE ALOK MAHRA 11TH JUNE, 2025 WRIT PETITION (MB) NO. 351 OF 2025 Balbir Singh ....Petitioner Versus State of Uttarakhand and others. …..Respondents Counsel for the petitioner : Mr. Rajendra Dobhal, learned Senior Counsel assisted by Mr. Suryakant Maithani, learned counsel. Counsel for the State : Mr. Sunil Khera, learned Deputy Advocate General with Mr. Yogesh Chandra Tiwari, learned Standing Counsel. JUDGMENT :(per Mr. G. Narendar, C.J.) Heard Mr. Rajendra Dobhal, learned Senior Counsel assisted by Mr. Suryakant Maithani, learned counsel for the petitioner and Mr. Sunil Khera, learned Deputy Advocate General with Mr. Yogesh Chandra Tiwari, learned Standing Counsel for the State. 2. The case of the petitioner is that Madhyamaheshwar temple is one of the “panch kedar” temples in Uttarakhand; that the petitioner is a native of Gondar village and his ancestors were appointed as caretakers of Madhyamaheshwar temple and have been residing in the premises since time immemorial; that the Madhyamaheshwar temple is not accessible by motorable 2025:UHC:4820-DB 2 road and is a 22 kilometer trek from Ransi, Tehsil Ukhimath, District Rudraprayag; that the petitioner and other villagers of Gondar reside in huts and temporary constructions on the trek route and nearby the temple; that they eek-out their living by performing seva to the temple. 3. Learned Senior Counsel has placed reliance on Annexure-6 to buttress his argument that certain rights have been conveyed to his forefathers with regard to performing services in the Madhyamaheshwar temple. He would also place reliance on the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for short ‘the Forest Rights Act’) to contend that in the absence of constitution of a Committee, as mandated under the Act and the Rules, the action initiated under Section 61 of the Indian Forest (Uttaranchal Amendment) Act, 2001 is per se illegal; that the order passed without an inquiry into the rights assured to other traditional forest dwellers, as defined under Section 2(o) of the Forest Rights Act, amounts to pre-judging the rights under the Forest Rights Act; that in the absence of a Committee and in the absence of a finding with regard to the rights of that class of persons, as defined under Section 2(o) of the Forest Rights Act, the impugned action tantamount to a colourable 2025:UHC:4820-DB 3 exercise of power. 4. We have queried the learned Deputy Advocate General. He submits that he has no instructions regarding constitution of the Committee, as mandated under Rule 4 to Rule 9 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 (for short, ‘the Rules of 2007’). 5. In that view of the matter, we are of the considered opinion that in the light of the claims made and in the absence of determination of such rights under Rule 12 of the Rules of 2007, the instant action of eviction, in our considered opinion, is impermissible. 6. The fact that the petitioner is residing there is not in dispute. The fact that requires to demonstrated is, whether the ancestors and forefathers of the petitioner were also residing in the same place and rendering services, as asserted by the petitioner. The same can be concluded after a properly constituted inquiry, as mandated by the Rules. 7. In that view of the matter, we are of the considered opinion that it would be proper to grant protection to the petitioner till the constitution of the Committee and determination of the rights as provided under the Act and the Rules. 2025:UHC:4820-DB 4 8. Accordingly, the instant writ petition is disposed of by permitting the petitioner to submit an Application, as mandated under Rule 11(1)(a) of the Rules of 2007 within a period of two weeks, and if such an application is made along with the supporting documents, the respondents / competent authority shall carry-out the inquiry, as mandated under the Rules and render a decision on the claim of the petitioner. At any rate, the respondents / the competent authority shall expedite the consideration of the application within six months from the date of filing of the said application and till the determination of the application, the respondents shall not initiate any coercive action to implement the order of eviction. It is made clear that this order will not entitle the petitioner to carry-out any commercial activity in the premises. 9. The writ petition stands ordered accordingly. 10. There shall be no order as to costs. 11. Pending application, if any, also stands disposed of accordingly. ________________ G. NARENDAR, C.J. __________ ALOK MAHRA, J. Dt: 11th June, 2025 Rathour PRAVINDRA SINGH RATHOUR Digitally signed by PRAVINDRA SINGH RATHOUR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=23699ccc2fd40ad81b6fd13323779d 9e3aeb1097d17dbb53d481cabd25946eed, postalCode=263001, st=UTTARAKHAND, serialNumber=1F65499E931DF71CDAF92A40 CC6179B8E010331BA695239171F906FD5C45 C4E8, cn=PRAVINDRA SINGH RATHOUR Date: 2025.07.03 10:18:02 +05'30'