Allahabad High Court
Brijesh Kumar @ Parideen & Anr. vs State Of U.P.Thru. ... on 10 July, 2018
Bench: Shabihul Hasnain, Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
RESERVED JUDGMENT
Reserved on : 02.05.2018
Delivered on : 10.07.2018
Court No. - 5
Case :- MISC. BENCH No. - 24509 of 2016
Petitioner :- Brijesh Kumar @ Parideen & Anr.
Respondent :- State Of U.P.Thru. Prin.Secy.Housing & Urban Planning & Ors.
Counsel for Petitioner :- Angrej Nath Shukla
Counsel for Respondent :- C.S.C.,Sampurnand Shukla
Hon'ble Shabihul Hasnain,J.
Hon'ble Rajan Roy,J.
(Per Rajan Roy, J.)
This is a writ petition under Article 226 of the Constitution of India seeking the following reliefs :
"(a) to issue a writ, order or direction in the nature of Mandamus directing the opposite parties/authority concerned not to construct road upon the petitioners land i.e. Gata no.54/0.0440 situated in village-Virura, Pargana-Vijnaur, Tehsil- Sarojni Nagar, District-Lucknow without adopting acquisition proceeding provided under Act.
(b) to issue a writ, order or direction in the nature of Mandamus directing the opposite parties/authority concerned to allot the land of equal value in favour of petitioners."
During the course of arguments it transpired that the road has already been constructed on Gata No.54, therefore, the contention of the learned counsel for the petitioners was that they are entitled to compensation in respect of the said land. In fact, it was his contention that the said Gata is not mentioned in the notification issued by the respondent-Corporation under section 28 and 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam 1965 (hereinafter referred as ''Adhiniyam 1965), therefore, the utilization of the said Gata for construction of the road without acquisition was patently illegal, as such the petitioners were entitled to compensation, however, on a perusal of the said notifications, copies of which are annexed as Annexure CA-1 to the counter affidavit, filed on behalf of the U.P. Avas Evam Vikas Parishad (hereinafter referred as ''the Board') the Court finds that in view of the provisions of section 28 and 32 of the Adhiniyam 1965 the boundaries of the area comprised in the scheme alone are required to be mentioned in such notifications which have accordingly been mentioned, meaning thereby, all lands falling within the said boundaries are to be used for public purposes mentioned in the notification, which in this case was a scheme called "Bhumi Vikas Evam Grih Sthan Yojana No.3, Vrindavan, Lucknow".
It is not the claim of the learned counsel for the petitioners in the pleadings nor in the arguments based on the documents on record that the Gata in question did not fall within the boundaries of the scheme as notified under section 28 and 32 aforesaid. In fact it is the specific case of the opposite parties that it was so.
The record reveals that as the said Gata stood vested in the Gaon Sabha, therefore, it was transferred to the Board in exercise of its power under section 38 of the Adhiniyam 1965 vide notification dated 25.6.2008, therefore, the claim of the petitioners for compensation is to be considered in the light of the aforesaid factual and legal scenario, as, neither section 38 of the Adhiniyam 1965 nor the notice dated 25.6.2008 issued thereunder, a copy of which is annexed as Annexure No.CA-4, has been challenged by the petitioners.
The moot point to be considered at this stage is as to whether the land in question continued to vest in the Gaon Sabha even after the alleged predecessor in interest of the petitioners Becha Lal was admitted to the said land by the Land Management Committee/Gaon Sabha in terms of section 195 read with section 198 of the U.P. Zamindari Abolition & Land Reforms Act 1950 (hereinafter referred as ''Act 1950') or not, as, if it continued to vest in the Gaon Sabha, then section 38 would be applicable and in such a scenario the compensation, if any, would be payable to the Gaon Sabha or such other local authority in which it stood vested on the date of such notification. If it was not vested as aforesaid, then of course the validity of the impugned action would be suspect and the entitlement of the petitioners to compensation would have to be considered.
After the coming into force of the Act 1950 the Zamindari System was abolished and all agricultural lands stood vested in the State under sections 4 and 6 of the Act 1950, however, under section 117 the State Government is empowered to vest such land in the Gaon Sabha or any other local authority established for the whole or part of the village in which the things mentioned in the said provision are situate or partly in one such local authority (including the Gaon Sabha) and partly in another. The lands and things which can be so vested are mentioned in the said provision. It is not in dispute that the land in question which was ''Usar Land' was vested in the Gaon Sabha by the State Government.
The claim of the petitioners herein is that Becha Lal was admitted to the said land by the Gaon Sabha, as a Bhumidhar with non-transferable rights as already stated hereinabove. Becha Lal died issueless. The date of death of Becha Lal was not disclosed by the petitioners though repeated queries were made in this regard by the Court. It has also not been disclosed as to whether the wife of Becha Lal is alive nor when did she die. Be that as it may, the fact of the matter is that before Becha Lal was admitted to the aforesaid land in 2003, a notification was issued in the year 1999 itself under section 28 and 32 of the Act 1965 for acquisition of the lands for the scheme already mentioned hereinabove detailing therein the boundaries of the scheme. As already stated, the learned counsel for the petitioners was not able to demonstrate that the said boundaries did not include the Gata in question. The record reveals that such land within the boundaries of the scheme which belonged to the Gaon Sabha was transferred by the Board vide notification dated 25.6.2008 to itself in exercise of the powers vested in it under section 38 of the Adhiniyam 1965 which reads as under:
"38. Transfer to Board of building or land vested in local authority.-
(1) Whenever any building or land or any street, or any part thereof, vested in a local authority lies within the area comprised in any housing or improvement scheme, the Board may give notice to that local authority that the same is required for the purposes of the scheme, and thereupon such building, land or street, or part thereof, shall vest in the Board.
(2) Where the Board makes a declaration while giving notice under sub-section (1) that such land, street, or part, as the case may be, will be retained by the Board or until it re-vests in the local authority as a street or an open space, or part thereof, under Section 41, no compensation shall be payable by the Board to the local authority except in respect of buildings, if any, situated on that land.
(3) Except as provided in sub-section(2), where any land or building vests in the Board under sub-section(1) the Board shall pay to the local authority as compensation, a sum equal to the market value of such land or building or both, as the case may be, as on the date on which the scheme comes into force.
(4) Where after a declaration has been made under sub-section (2), the land does not re-vest in the local authority, the Board shall pay to the local authority compensation in respect of such land in accordance with the provisions of sub-section(3).
(5) If any question arises as to whether any building, land or street, or any part thereof, is required for the purposes of the scheme or as to whether compensation, the matter hall be referred to the State Government whose decision thereon shall be final."
We are of the opinion that mere admission of Becha Lal to the said land bearing Gata No. 54 did not divest the Gaon Sabha from the said land which was vested in it under section 117 of the Act 1950, as, such settlement under section 195 read with section 198 is not a permanent one. Even after such admission to the land under section 195 it continues to vest in the Gaon Sabha albeit for the purposes of its management and the State continues to be its owner. Only limited interest is created in the said land in favour of a Bhumidhar with non-transferable rights as is evident from section 142(2) read with sections 131, 152(2) and (3), sections 183, 186, 190 and 193, read with the relevant Rules of 1954 on the subject. The patta granted under section 195 read with relevant Rules can be cancelled and other eligible persons can be admitted to such land as per proposal of the Gaon Sabha subject to approval of competent authority as per law. The status of a Bhumidhar with non-transferable rights is akin to that of a lessee, subject of course to the provisions of the Act 1950 and that Rules made thereunder. As is evident from the provisions of section 117, the Gaon Sabha would be divested of such land by its resumption by the State under sections 117(6) or by recourse to any other provision of law such as section 38 of the Adhiniyam 1965 and not otherwise.
It is also not out of place to mention and as is evident from the notification dated 25.6.2008 the land in question came to be vested in the Municipal Corporation Lucknow at some point of time, certainly on the date of notification dated 25.6.2008 under section 38 of the Act 1965 as is mentioned therein, a fact which has not been rebutted by the petitioners, even though the date of such vesting in the Municipal Corporation has not been disclosed. In either eventuality i.e. even if the land is treated to have continued to vest in the Gaon Sabha or is treated as having vested in the Municipal Corporation, the fact of the matter is that section 38 of the Adhiniyam 1965 was clearly applicable, as by the date of such notification neither Becha Lal nor the petitioners herein had acquired the interest of a Bhumidhar with transferable rights which becomes available under section 131-B of the Act 1950 by operation of law on completion of 10 years as a Bhumidhar with non-transferable rights. No such right had accrued or vested in Becha Lal or in the petitioners. In fact the scheme for which the lands were required to be acquired or transferred had been notified under section 28 and 32 in the year 1999 itself i.e. much prior to the admission of Becha Lal to the said land, therefore, it is inexplicable as to how he was admitted to the Gata in question as a Bhumidhar with non-transferable rights but without going into this question any further and assuming that he was validly admitted to such land, though it is highly suspect, the fact of the matter is that once a notification was issued under section 38 on 25.6.2008, then, the land stood transferred to the Board and compensation in respect thereof was payable only to the Gaon Sabha or the local authority i.e. Municipal Corporation in which it stood vested on the date of notification, as is mentioned in section 38 and not to Becha Lal who was merely a Bhumidhar with non-transferable rights nor to the petitioner, his alleged legal heirs. It is also surprising as to how after issuance of notification dated 25.6.2008 the petitioners got their names mutated in the revenue records in respect of the said land vide order of the S.D.M. dated 16.9.2011, as the land already stood transferred to and vested in the U.P. Avas Evam Vikas Parishad under section 38 of the Adhiniyam 1965.
Be that as it may, it is not a case of acquisition of land of a Bhumidhar, but transfer of a land vested in the Gaon Sabha to the Board under section 38 of the Adhiniyam 1965, therefore, in the absence of any challenge to section 38 of the Adhiniyam 1965 and the notification dated 25.6.2008 issued thereunder, it is difficult to accept the contention of the petitioners herein that they were entitled to compensation in respect of the land so transferred.
In view of the above, we do not find any valid ground for exercising our discretionary extraordinary jurisdiction in favour of the petitioners under Article 226 of the Constitution of India. The writ petition is accordingly dismissed.
Order Date :- 10.07.2018
A.Nigam
(Rajan Roy,J.) (Shabihul Hasnain,J.)
