Ramesh Chandra Garg vs Estate Officer And Another
2018 Latest Caselaw 591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 51
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 3507 of 2018
 

 
Petitioner :- Ramesh Chandra Garg
 
Respondent :- Estate Officer And Another
 
Counsel for Petitioner :- Mahesh Narain Singh,M.N. Singh
 
Counsel for Respondent :- Vivek Ratan Agrawal
 

 
Hon'ble Suneet Kumar,J.

Heard Sri M.N. Singh, learned counsel appearing for the petitioner and Sri Vivek Ratan Agrawal, learned counsel appearing for the respondents.

Petitioner by the instant petition is assailing the order dated 31 March 2018 passed by the District Judge, Sonbhadra in Misc. Civil Appeal No. 26 of 2013 arising from order dated 28 December 2012 passed by the Estate Officer in Estate Case No. 26 of 2002 (N.T.P.C. vs. Ramesh Chandra Garg), whereby, petitioner has been directed to remove encroachment from the public premises in proceedings under Section 5-A of Public Premises Act, 19711.

It is urged that 71-6-0 Bigha of land of plot no. 1299 measuring 87-4-0 Bigha vesting in the Gaon Sabha was resumed by the State Government in exercise of power conferred under Sub-section (6) of Section 117 of U.P. Zamindari Abolition and Land Reforms Act, 19502, for establishment of Rihand Power Project by N.T.P.C. a public sector unit of the Government of India. The land was resumed in 1983, transferred to the N.T.P.C. and duly mutated/entered in the revenue record. N.T.P.C. approached the Estate Officer by filing a petition under the Act, 1971, contending that the land occupied by the petitioner is 'public premises' within the meaning of Section 2(e) of Act, 1971 which belongs to N.T.P.C. Consequently, proceedings were undertaken under Section 5-A before the Estate Officer against the petitioner for removing the unauthorized encroachment.

The facts, inter se, parties are not in dispute. It is admitted by the petitioner that plot no. 1299 vests in Gaon Sabha, of which, 71-6-0 Bigha was resumed by the State Government in 1983 and transferred to N.T.P.C.; thereafter, it transpires that petitioner encroached upon the resumed land. It is contended that as mandated by Section 131-A of the UPZA & LR Act, petitioner being in possession of a portion of plot no. 1299 prior to 30 June 1978, shall be deemed to have become tenure holder with non-transferable rights insofar it relates to the disputed property. Learned counsel for the petitioner has further placed reliance on the decision of this Court rendered in Smt. Manju Agrawal vs. XIII A.D.J. Meerut & Others3, to contend that in a case where dispute of title of the land is involved, without deciding the title by the competent court, petitioner cannot be removed from the disputed land in summary proceeding. In other words, it is urged that in the given facts where arises bona fide dispute in respect of title between the Government and the occupant must be adjudicated upon by the ordinary courts of law. The Government/Estate Officer is not competent to decide questions of title unilaterally in its own favour and evict any person summarily on the basis of such decision taken under Act, 1971.

I have gone through the averments made in the petition, material brought on record, in particular, the impugned order with the assistance of learned counsel for the parties. Proceeding was initiated against the petitioner under Section 5-A of Act, 1971 vide notice dated 18 January 2005, calling upon the petitioner to remove the temporary construction situated in front of the main gate of the power station from the plot belonging to N.T.P.C. The encroachment is upon 3850 sq. feet shown by the boundaries, which is part of the impugned order. Petitioner filed objections contending that he is in possession over the land in dispute for the past 30-35 years prior to 1385 Fasli (1978). Further, it is urged that the property of the petitioner was acquired due to defective revenue record and possession thereof was taken, but no compensation was paid. In other words, petitioner admitted in his objection that the land over which he has raised temporary construction was resumed/acquired though he claims possession and bhumidhari rights in view of Section 131-A of UPZA & LR Act. Taking the contention of the learned counsel for the petitioner on face value appears to having merit but on deeper analysis it is devoid of merit.

Section 131 of UPZA & LR Act was inserted by U.P. Act No. 14 of 1987 w.e.f. 15.04.1987. Relevant portion for the purpose of the instant case reads thus:

"[131A. Bhumidhari rights in Gaon Sabha or State Government land in certain circumstances.- Subject to the provisions of Section 132 and Section 133-A, every person in cultivatory possession of any land, vested in a Gaon Sabha under Section 117 or belonging to the State Government, in the portion of District Mirzapur South of Kaimur Range, other than the land notified under Section 20 of the Indian Forest Act, 1927, before the 30th day of June, 1978, shall be deemed to have become a Bhumidhar with non-transferable rights of such land :

Provided ..."

Section 117 of UPZA & LR Act provides for vesting of certain lands, etc. in Gaon Sabha and other local authorities. At any time after the publication of the notification referred to in Section 4, the State Government may [by general or special order to be published in the manner prescribed], declare that as form a date to be specified in this behalf, all or any of the lands etc. which was vested in the State under the Act, was vested in Gaon Sabha or any other local authorities established for a whole or part of the village in which the said lands or things are situate.

Sub-section (6) of Section 117 confers power upon the State Government to resume such land or things of the Gaon Sabha. Sub-section(6) reads as follows:

"(6) The State Government may at any time, [by general or special order to be published in the manner prescribed], amend or cancel any [declaration, notification or order] made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority and resume such thing and whenever the State Government so resumes any such things, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things :

Provided..."

In view of sub-section (6), State Government delegates power to resume all or any of the things specified from clauses (i) to (iii) of sub-section (2) of section 117, vested in Gaon Sabha and local authorities. The said order is transaction involving only two parties, namely, State Government and the Gaon Sabha concerned. No third party has any right or locus to object to the land. State Government, however, at the same time has no authority of law to issue any notification in respect of the land of which a person is owner inasmuch as the said land does not belong to the Gaon Sabha. The notification under Sub-section (6) of Section 117 of UPZA & LR Act, in the instant case, was issued on 3 December 1983. Had the petitioner been in possession over Gaon Sabha land on or before December 1983, the Land Management Committee would have initiated proceedings under Section 122-B of UPZA & LR Act by approaching the collector to remove the encroachment.

Sub-section(1) of Section 122-B was inserted by U.P. Act No. 20 of 1982 w.e.f. 03.06.1981 providing that where any property vested in a Gaon Sabha or local authority is damaged or misappropriate or where the Gaon Sabha or local authority is entitled to take or retain possession of any land and such land is occupied otherwise than in accordance with the provisions of UPZA & LR Act, the Land Management Committee or the local authority, as the case may be, shall inform the Assistant Collector concerned, who in turn is satisfied that the property is in unauthorized occupation of any person, he shall issue notice to show cause as to why such person should not be evicted from such land. It appears that petitioner was not in possession of the disputed land until notice was issued in 2005 under Act, 1971. Had the petitioner been in occupation of Gaon Sabha land on or before resumption in 1983, proceedings would have necessarily been initiated by the Land Management Committee against him under Section 122-B. It is not the case of the petitioner that proceeding was initiated against him for eviction.

Section 131-A of UPZA & LR Act confers bhumidhari right on Gaon Sabha or State Government land in certain circumstances. The notification under Section 117(6) records that the land is being resumed for Rihand Super Thermal Power Project in district Mirzapur. It is further not being disputed by learned counsel for the petitioner that upon resumption, N.T.P.C. was duly entered in the revenue record over the land for the purpose of power station and they came in possession in 1983. Any person, including the petitioner, occupying the resumed land on the said date had no right or interest over the resumed property which vested with N.T.P.C. free from all encumbrances. Petitioner taking advantage of Section 131A of UPZA & LR Act, attempted, by setting up a case, contending that he is in possession of the land prior to June 1978. No material, including extracts of revenue record, was placed before the Estate Officer or before this Court to show that on April, 1987 upon enactment of U.P. Act No. 14 of 1987, or on the date of notification under Section 117(6) issued in December 1983, petitioner was having cultivatory possession of any land vesting in the Gaon Sabha. Even otherwise, on the date of insertion (15.04.1987) of Section 131A, the disputed parcel of land was no longer vesting in the Gaon Sabha, it was a property belonging to NTPC. Section 131A would not apply to the land not vesting in the Gaon Sabha on the date of its insertion. The purpose and purport of Section 131A is to confer bhumidhari rights on Gaon Sabha land and not on the land which were resumed and transferred to third party. The claim of the petitioner under Section 131A is misconceived, therefore, rejected.

The decision rendered in Manju Agrawal (supra) is of no assistance or help to the learned counsel for the petitioner. The dispute before the Court related to a house which was transferred by sale-deed categorically stating therein that it is a freehold property. The legal heir submitted building plan for reerection of the disputed house, whereby, notices under Section 5A/5B of Act, 1971 was issued and the impugned order came to be passed. The case set up by the petitioner in Manju Agrawal was that property was purchased by her mother-in-law in 1940 being freehold property, the respondent-Cantonment Board failed to show as to how the property was a public premises, therefore, the Court was of the opinion that there cannot be a presumption that the property either belongs to the government or leased or requisitioned by it.

In the facts of the instant case, it is not being disputed that the land claimed by N.T.P.C. vested in the Gaon Sabha and was duly resumed and it is the property of the NTPC. It is urged that N.T.P.C. should first establish that the land belongs to them and only thereafter the provisions of Act, 1971 would apply. Reliance has been placed on certain notice and information sought by N.T.P.C. from the revenue authorities but that is of no assistance to uphold on behalf of the petitioner that he is in occupation of Gaon Sabha land. It is not the case of the petitioner that he has right or title over the property but merely claims right in terms of Section 131A. The decision relied upon is distinguishable and not applicable to the facts of the present case.

Learned counsel has urged that since he is in possession over the Gaon Sabha land, therefore, in view of Section 131-A became owner of the property by operation law. The plea cannot be accepted for the reasons stated herein above, further, no material has been placed on record including extract of khasra (Field Register) to show that petitioner was having cultivatory possession over the disputed plot prior to 1978 and neither it is the case of the petitioner that he ever raised such claim against N.T.P.C. before any revenue authority that he has title and bhumidhari right over the said land.

The occupation of Gaon Sabha land cannot be proved exclusively by leading oral evidence without being supported by any credible documentary evidence to support the contention of the petitioner that he has been in possession prior to 1978. This Court in a number of decisions while deciding whether a person acquires any right under Sub-section (4F) of Section 122-B has gone into the question with regard to possession. The last part of Sub-Section (4F) of Section 122B confers by a statutory fiction the status of bhumidhar with non-transferable rights on the occupant to the land as is under Section 131-A.

The occupant can get the benefit of Sub-section (4F) only if the occupant can show that his name was entered in the revenue record as occupant (kabza) before the cut of date and not otherwise. [Refer: Sanjai Kumar vs. Collector/District Magistrate, Kanpur Dehat4; Ghanshyam Singh vs. State of U.P. through Secretary Revenue, Secretariat, Lucknow and others5; and Satya Veer and another vs. State of U.P. and others6].

Section 131-A uses the expression "cultivatory possession", meaning thereby that any person claiming possession on the date on which Section 131-A was inserted (1987) must show from the revenue record or any other material that his name was duly entered as occupant in the khasra of the relevant year. On the date on which the notification under Section 117(6) resuming the land for setting up power plant, no occupation or possession is recorded/established or proved.

Learned counsel appearing for the petitioner, on specific query, submitted that there is no documentary evidence to show his possession. It is merely his contention taken before the Estate Officer after the petitioner encroached the land some time in 2004-05. Even otherwise, petitioner cannot claim any right under Section 131-A of UPZA & LR Act for the reason that on the date on which Section 131-A was inserted, it is not the case of the petitioner nor it is reflected from any of the documents and material brought on record to show that in 1987, petitioner was having possession. The year is relevant because any person not in possession in 1987, over Gaon Sabha land cannot claim any right under Section 131A. Even otherwise, the disputed land ceased to vest in Gaon Sabha much prior to 1987, therefore, Section 131-A would not apply to the disputed land owned by NTPC.

Having due regard to the fact and circumstances of the case and for the law and reasons stated herein above, I find no illegality, infirmity or perversity in the impugned orders.

The petition is, accordingly, dismissed.

However, dismissal of the petition shall not preclude the petitioner from taking an appropriate remedy, if any, available in the law.

Order Date :- 17.5.2018

Mukesh Kr.