Chandrapal And Others vs State Of U.P. Thru Its Secy. And ...
2017 Latest Caselaw 3119 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 

 
Case :- WRIT - C No. - 60570 of 2011
 

 
Petitioner :- Chandrapal And Others
 
Respondent :- State Of U.P. Thru Its Secy. And Others
 
Counsel for Petitioner :- Anjana Singh Dewal,Surendra Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Sri K.R. Siroti, learned Senior Counsel assisted by Sri Surendra Tiwari for the petitioner.

The challenge raised in this writ petition is to the order of resumption under Section 117(6) of the then UPZA & LR Act, 1950 vide order dated 28.12.2006 wherein the land treating it to be within the management of the Gaon Sabha has been resumed by the State.

This power of resumption has been challenged primarily on the ground that all the petitioners have perfected their title over the said land with their long standing possession for which reliance has been placed on a  number of documents including revenue records and intervening decisions by the revenue authorities.

Learned counsel has further invited the attention of the Court to the fact that the attempt for evicting the petitioners has also failed and their possession has been found to be valid.

However in relation to proceedings with regard to the expunging of the entries standing in favour of the Gaon Sabha was contested before the consolidation authorities under the U.P. Consolidation of Holdings Act, 1953 where the land was declared to be that of the Gaon Sabha before the Consolidation Officer and the Settlement Officer Consolidation but the said decisions were reversed by the Deputy Director Consolidation and the matter was remanded back to the Consolidation Officer for a decision afresh. The said consolidation proceedings were however terminated with a notification under Section 6 of the 1953 Act and therefore, the position that emerges is that the declaration with regard to title of the petitioners remained undecided.

The petitioners claim that they continued in possession and consequently the intervention of this resumption is a cloak in order to acquire the tenancy of the petitioners, the holdings whereof belong to the petitioners over which they have perfected their title. It is therefore, the argument of the learned counsel for the petitioners that the proceedings of resumption cannot be utilized as a cover in order to acquire the land of the petitioner without giving compensation and consequently this exercise deserves to be annulled. The prayer therefore, is to quash the resumption proceedings.

An Amendment application and a supplementary affidavit has also been filed contending that this process adopted by the respondents also violates Article 31-A of the Constitution of India and consequently the relief as prayed for deserves to be granted.

Having heard learned counsel for the parties, what we find is that this writ petition had been dismissed by the following judgment on 20th October, 2011:-

"1.This is a Writ Petition against the Notification dated 28.12.2006 resuming the land under section 117(6) of the U.P. Zamindari Abolition and Land Reforms Act, 1951.

2.We have heard counsel for the petitioners and Standing Counsel and Sri A. K. Misra, Sri V. K. Birla for the respondents and Sri Pankaj Dubey.

3.As the land belongs to the State Government, the State Government has merely resumed its own land. There is no illegality in the same.

4.In view of this, there is no merit in the Writ Petition. It is dismissed."

The petitioners filed a special leave to appeal to the Apex Court where the petitioners sought permission and they filed additional documents, the order of the Apex Court dated 8th May, 2012 is extracted hereinunder:-

"The application for permission to file additional documents is allowed.

Issue notice."

The Special leave to appeal was ultimately allowed by the judgment dated 1st July, 2013 and the same is extracted hereinunder:-

"Leave granted.

This appeal is directed against order dated 20.10.2011 passed by the Division Bench of the Allahabad High Court summarily dismissing the writ petition filed by the appellants against notification dated 28.12.2006 issued under section 117(6) of the U.P. Zamindari Abolition and Land Reforms Act, 1951.

We have heard Shri Pallav Shishodia, learned senior counsel appearing for the appellants and perused the record.

In our considered view, the order under challenge is liable to be set aside only on the ground that the High Court has not considered any of the grounds raised by the appellants for challenging notification dated 28.12.2006.

For the reason aforesaid, the appeal is allowed, the order under challenge is set aside and the matter is remitted to the High Court for fresh disposal of the writ petition on merits.

M/s Shiv Nadar Foundation, which has filed I.A.No. 4 of 2013 is given liberty to file similar application before the High Court which shall be disposed of after giving opportunity to the appellants to contest the same."

This is how the writ petition has now again been listed for disposal.

Having gone through the records and the pleadings, we find that there is a clear distinction between the power of resumption and the power to acquire. The power of resumption in the present case emanates from Section 117(6) of the then existing UPZA & LR Act. It may be placed on record that the said Act has now being repealed and now substituted by UP Revenue Code 2006 where the same provisions are contained in Section 59 of U.P. Revenue Code 2006.

The power of resumption is available with the State Government in respect of such land including land entrusted to the Gaon Sabha for such purpose as the State Government may decide. Learned counsel submits that such resumption, if undertaken for the purpose of extending benefit to any organization would amount to an acquisition and therefore, the present resumption is under a garb an acquisition. Hence, there is a valid reason to challenge the same.

The power of acquisition is now controlled under the consolidated law namely the The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as well as other Central and State Acts for example the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 and the National Highways Act. No such proceedings are involved herein.

The contention of the petitioner appears to be that this method adopted by the State Government of resumption amounts to an acquisition.

Before this question is addressed to by the Court, it will have to be found out as to whether the petitioners have a right to the holding so as to resist either acquisition or resumption for which the petitioners are claiming possession on the basis of revenue entries which they allege to be in their favour.

In our considered opinion, this exercise of establishing the status of the petitioners as a title holder of the land and the declaration of the nature of the tenancy would be squarely governed and controlled by the provisions of the UPZA & LR Act 1950 read with UP Revenue Code 2006 for which the petitioners will have to file a declaratory suit as envisaged under Section 229-B of the 1950 Act and now contained in Section 144 of the UP Revenue Code 2006. The same also includes the provision for grant of injunction under Section 146 thereof. In such a situation where these questions of fact have to be necessarily to be gone into and the evidence relied upon by the petitioners has to be assessed in order to determine as to whether the petitioners are valid title holders and tenants of the land in dispute, then, in that event, the aforesaid remedy has to be adopted. Consequently, we are not inclined to entertain this petition without prejudice to the rights of the petitioners to file a suit for declaration as aforesaid.

With the above observations, this writ petition is dismissed.

Order Date :- 9.8.2017

S.Chaurasia