C/M Durga Narain College And Adity ... vs State Of U.P. Thru Prin. Secy. ...
2018 Latest Caselaw 665 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 40
 

 
Case :- WRIT - C No. - 3042 of 2009
 

 
Petitioner :- C/M Durga Narain College And Adity Kumari School & Ors.
 
Respondent :- State Of U.P. Thru Prin. Secy. Reveneu And Others
 
Counsel for Petitioner :- Triveni Shanker,Ajay Shanker
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Shashi Kant,J.

This writ petition has been filed by the Management of the Durga Narain College and Aditya Kumari School, Tirwa, District - Kannauj through its Manager Kunwar Devendra Narain Singh, which is admittedly a recognized Intermediate College under the U.P. Intermediate Education Act, 1921. The College has its buildings, including classes, farm, hostel and other buildings with land appurtenant thereto, situate in Tirwa District - Kannauj. The buildings spread over a considerable area had been established way back in the year 1923. It is undisputed that it was recognized as an Intermediate College in 1946 and was established by a Society registered under the Societies Registration Act. The challenge raised is to the orders dated 08.12.2008 (Annexure 21 and 22) whereby the land in dispute has been resumed by the State through the Collector/District Magistrate, Kannauj under Section 117(6) of the U.P.Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "1950 Act").

The institution came to be established by the then Zamindar Raja Durga Narayan Singh, in his name and his wife Smt. Aditya Kumari by raising several buildings on the land for the purpose of School Classes, hostel as well as agricultural farm etc. which was within his Estate of which he was the Zamindar and the proprietor. The Institution was given recognition in the year 1926 and was upgraded to High School and thereafter was recognized as Intermediate College in 1946.

The Institution is situated on a strategic point on Auraiya-Kannauj Road. The building of the School and other tenements are over several plots including plot no. 623 whereas the Hostel building is over Plot No. 738. Plot No. 623 and 738 are both categorically recorded as 'Abadi'. Certain other plots are admittedly recorded as tenancy in the name of the Institution as is evident from CH Form 45 prepared under the U.P. CH Act 1953 while making final settlement, copy whereof is Annexure-4 to the writ petition.

The dispute in the present case however is with regard to Plot No. 623-Ga and a part of Plot No. 738-M recorded as Abadi. Thus, apart from other land which is already the admitted tenancy of the Institution, these plots which are in the shape of 'Abadi' existing even on the date when the Institution was established, continued to be in the occupation of the Institution since long. For this the petitioners have brought on record the Khatauni (record of rights) of 1348 Fasli which records old Plot No. 795 area 20.21 acres as 'Abadi'. A 'Khatauni' is the revenue record of rights. An entry in the 'Khasra' which is the record of possession of 1348 Fasli, has been also filed and these documents are Annexure Nos. 6 and 7 respectively to the writ petition. The khasra categorically records Plot No. 795 as 'Abadi School Angrezi' (English School). Thus, prior to the abolition of Zamindari, 'Abadi' existed and was in occupation of the same School which is established from the said Khatauni and Khasra. The record of rights and record of possession as maintained then in terms of the Land Record Manual continued.

With the coming into effect of the Act, 1950 with effect from 1st July, 1950 all Zamindari and prorietary rights of the Intermediaries including that of Zamindars came to be divested in favour of the State in terms of Section 4 of the Act, 1950 and then vested again after the State became owner under Section 6 of the Act, 1950. However, 'Abadi' sites in particular relating to the buildings constructed and tenements standing over the said sites together with the land appurtenant thereto stood vested with whosoever was in ownership or occupation namely the Intermediary or the tenants. Thus, by virtue of Section 9 of the Act, 1950 the said 'Abadi' which was in the occupation of the petitioners Institution was that of the Institution and it continued in possession throughout.

The revenue records which were prepared after the abolition of the Zamindari entered this part of the 'Abadi' under category 6(2) of para 124 of the Land Record Manual and revenue records were maintained accordingly. We may again reiterate that we are concerned with the plots which are in occupation of the Institution particularly the Abadi plots which are now sought to be resumed under the provisions of Section 117(6) of the Act, 1950 through the impugned notifications dated 6th December, 2008 and 8th December, 2008, copies whereof are Annexures 21 and 22 to the writ petition.

The aforesaid resumption of the land in favour of the State has been carried out for giving effect to the utilisation of the said land for 'Sahri Garib Awas Yojana' under the Integrated Housing and Slums Development Programme. The notifications impugned herein have been issued and according to the counter affidavit filed on behalf of the respondents, since the land vested in the Gaon Sabha, therefore, the resumption does not suffer from any error of jurisdiction or authority and the petitioners according to the respondents cannot claim any right, title or interest over the said land. It is further submitted that any such occupancy or entry would not amount to any accrual of right in favour of the petitioners so as to resist resumption by the State Government. It is also submitted that corrected entries in respect of Plot No. 623-Kha had been made by the Tehsildar and it continued to be recorded as 'Abadi'. The sum and substance of the stand taken by the State Government is that since the land vested in the Gaon Sabha and belonged to the State therefore, its resumption back to the State by withdrawing its management from the Gaon Sabha for a different public purpose cannot be a matter of challenge by the petitioners. Rejoinder affidavit to the said counter affidavit has been filed reiterating the assertions made and one of the arguments advanced is that such notifications have been issued without conducting any survey, enquiry or any factual report with notice to the petitioners, as a result where of resumption is even in violation of principles of natural justice.

We have considered the submissions raised and we find that occupancy of the petitioners since 1923 onwards never appears to have been disputed before abolition of Zamindari and to the contrary old Plot No. 795 and 819 from which the new plot numbers were carved out have been shown as Abadi in Annexure-5 to the writ petition which is CH Form-41 prepared under the U.P. Consolidation of land Holdings Act and the Rules framed therein. This fact has been stated in paragraph 10 of the writ petition to which reply in paragraph 11 is that the same is matter of record therefore it needs no reply. Perusal of Annexure-5 to the writ petition, which is a record prepared during settlement proceedings under the Consolidation of Land Holdings Act, 1953 demonstrates the connectivity of the plots in dispute with that of old Plot Nos. 795 and 819, particularly Plot No. 623-Ga and 738M which has been shown as 'Abadi'. This entry prepared by the State itself during settlement operation clearly matches with the entry relied on by the petitioners of 1348 Fasli both in the Khatauni as well as Khasra referred to herein above. It is therefore evident from the said entries that 'Abadi' did exist and that area was occupied and inhabited as claimed by the Institution.

The factual matrix about the existence of the Institution and its ownership is also reflected through the details given in the counter affidavit. In paragraph no. 6 of the counter affidavit, six plots excluding the disputed plots are exclusively recorded in the tenancy of the Institution about which there is no dispute. The plots about which the dispute has been raised is evidently contiguous and appurtenant to the said plots admittedly recorded in the name of the Institution. The disputed plots are recorded as Abadi.

As stated above, CH Form-41 which is a settlement record prepared during consolidation operation under the UP Consolidation of Land Holdings Act, 1953 record the old plot numbers and the new plot numbers and also indicates its status. The fact that they were recorded as Abadi, therefore, remains undisputed. If one carefully goes through the said form, it would indicate that a part of the area of Plot No. 623 Ka and Kha, which is a small area compared to the entire area of the two plots, has only been shown as open (khali), whereas the major and substantial part of the area recorded as 623 Ga, 738 Ka, and 738 Kha has been shown to be Abadi. Thus, the open status and the occupied status is clearly reflected in the said revenue records, which has not been disputed in paragraph no. 10 of the counter affidavit. The existence of abadi of such area being that of old plot nos. 795 and 819 are clearly indicated to be continuing in the same shape of Abadi. There is nothing on record to indicate that the Institution was ever called upon to disassociate or withdraw itself from the said plots by any authority. The correction of the entry from unauthorized occupant to abadi in respect of Plot No. 623 Ka as stated in the counter affidavit does not alter the situation in any way about the possession of Abadi.

From an over all conspectus of the revenue map and the actual location of these plots together with the plots already recorded in the name of the Institution about which there is no dispute, the land is clearly appurtenant and part of the complex of the Institution. Apart from this, it would be relevant to mention that the then Zamindar had established the Institution. The register of proprietorship, namely, Khewat is not disputed. Thus the revenue records of Khewat, Khatauni and Khasra prior to the abolition of Zamindari, have not been successfully challenged or questioned in the counter affidavit. The status of the land prior to Zamindari and the entry of the name of the school in paragraph nos. 11 and 12 of the writ petition has been replied to in paragraph nos. 12 and 13 of the counter affidavit. The fact of the records of the pre Zamindari abolition period being correct, has not been denied except for saying that the land has been vested and resumed under Section 117 of the 1950 Act. Consequently, the presumption of the recorded entries in favour of the school prior to the abolition of Zamindari in the revenue records remains unquestioned. Zamindari was abolished with effect from 1st July, 1952. It is nobody's case that the Institution ceased to exist for the purpose for which it was established. To the contrary, it would be appropriate to mention for the purpose of recognition of an intermediate college, the Board of High School and Intermediate examination in terms of the UP Intermediate Education Act, 1921 have prescribed norms for Institutions and in respect of a playground, it clearly states that a minimum of 7,776 sq.mts of playground is required. Thus, by any means, the Institution stood established and in order to cater to the norms as prescribed was required to be in possession of such land and it is for this reason that the Institution was also granted recognition under the 1921 Act. Even otherwise the land prior to abolition of Zamindari was not in the ownership of the then State Government or any local body nor was it recorded as such in accordance with the land record manual. On the said facts and for the reasons stated hereinafter, the said land which is recorded as Abadi and consists of the complex establishment of the Institution stood settled in favour of the Institution upon the abolition of Zamindari. The mere recording of the land as Abadi after abolition of Zamindari would not automatically alter the ownership and possession of the land either in favour of the State or the Gaon Sabha in view of the facts and law discussed hereinafter.

To understand the status of occupation, possession and retention of the land by the petitioner's Institution, historically this Institution was established in the year 1923, and its establishment is undisputed and even acknowledged in the official gazettes of the then District Farrukhabad of which Kannauj was a part. The township of Tirwa was governed by the provisions of UP Town Areas Act, 1914. The Institution was established in 1923 and the fact of its existence since then is mentioned in the gazetteer of India Uttar Pradesh, District Farrukhabad published by the Government of Uttar Pradesh with Dr. Permanand Mishra as its editor. The updated gazetteer of 1988 in Chapter XV relating to Education and Culture at Pg 231 mentions the existence of higher secondary schools. A list of Higher Secondary Institution is stated to be contained in Statement 1 of the said chapter. Statement 1 which is part of the State gazetteer is extracted hereinunder:-

Name

Year of foundation

Year of upgrading

Swarup Narain Intermediate College, Kannauj

Bhartiya Pathshala Intermediate College, Farrukhabad

Narain Arya Kanya Pathshala Intermediate College, Farrukhabad

Durga Narain and Aditya Kumari Intermediate College, Tirwa

Sushila Devi Girls Intermediate College, Kannauj

Christian Intermediate College, Farrukhabad

Municipal Intermediate College, Fatehgarh

Seth Basudeo Sahi Intermediate College, Kannauj

Hira Lal Vaish National Intermediate College, Chhibramau

Bhartiya Shiksha Sadan Intermediate College, Sikandarpur

Rastriya Vidya Mandir Intermediate College, Akbarpur

Kanahiya Lal Ram Sharan Rastogi Intermediate College, Farrukhabad

Madan Mohan Kanaudia Girls Intermediate College, Farrukhabad

Rishi Bhumi Intermediate College, Saurikh

The question of possession of the land recorded as Abadi by the Institution has to be viewed from the point of view of Section 28 of the UP Land Revenue Act, 1901 which is extracted hereinunder:-

"28. Maintenance of map and field book- The Collector shall in accordance with rules made under Section 234, maintain a map and field-book of each village in his district, and shall cause annually, or at such longer intervals as the State Government may prescribe, to be recorded therein all changes in the boundaries of each village or field and shall correct any errors which are shown to have been made in such map or field-book."

The same refers to the maintenance of the village map as well as the field book in accordance with Rules made under Section 234 of the said Act. The field book is the Khasra (record of possession) maintained by the Lekhpal/Patwari. The entry in the Khasra corresponds to the entry in the Khatauni (record of rights). The aforesaid section therefore existed since 1901 and the entries in the field book relating to the map and matched with the findings on the spot are to be entered accordingly. It may be pointed out that the maintenance of such revenue records is in relation to agricultural land but so far as maps and field books are concerned, they also relate to land other than agricultural land. For this, one has to refer to Rule 52 of the Rules framed under Section 234 which is extracted hereinunder:-

52. (1) A list of objects along with signs for them with which they will be marked on the village maps where such objects exist will be found in Appendix II. Objects like roads, masonary wells, canals, guls (permanent irrigation drains in continuation of canals or channels) will be marked after actual measurement, while those like kachcha wells, trees, abadi, etc. will be shown in the map at their approximate places.

(2) If Buildings and Roads Branch of the Public Works Department request for it, their enlarged maps of road areas abetting abadi will be verified and attested in accordance with the instructions contained in Appendix VI.

The said Rule provides for marking of Abadi sites and other objects at their approximate places. The signs with which they are to be marked is provided for in Appendix-II of Appendix-B to the said Rules. The sign allocated for Abadi is at Serial No. 1 and for a school at Serial No. 55. Thus both the Khasra and the map are to be maintained accordingly. The categorization to be mentioned in the Khatauni (record of rights) is provided in paragraph no. 124 of the UP Land Record Manual. The U.P. Land Record Manual has statutory force. (See Mustafa Khan Vs DDC 1972 RD Pg 414)

It would be appropriate to mention about the law relating to Abadi sites. Prior to the abolition of Zamindari, the concerned Talukdar or Zamindar was the proprietor of every inch of land for which he paid revenue to the Government and the land was under his proprietorship subject to the tenancy laws prevalent then. Thus an Abadi site could be settled by the proprietor or the Zamindar and it could be occupied with his consent. Abadi sites were therefore occupied and constructions raised as dwelling units as well as other buildings with regard to which the absolute authority of settlement was with the then Zamindar/proprietor/landlord. There is no dispute that the petitioner Institution was established by the Zamindar on the property which was settled by him.

In order to regulate the law relating to village Abadis, the State legislature after India gained Independence enacted the United Provinces Village Abadi Act, 1948 which is extracted hereinunder:-

"Preamble- Where it is expedient to regulate in certain respects the relations between landlords and house-owners in village abadis in the United Provinces;

It is hereby enacted as follows:

1. Short title, extent and commencement.- (1) This Act may be called the United Provinces Village Abadi Act, 1947.

[(2) It extends to the whole of Uttar Pradesh.]

2. Interpretation and definitions.- In this Act, unless there is something repugnant in the subject or context-

(1) "village abadi" means any land in [a village] which is or, but for an error or omission, would have been recorded as such in the revenue records.

(2) "Landlord" means the proprietor of the land constituting the village abadi and includes a sub-proprietor or under-proprietor thereof.

(3) "House owner" means a person, not being the landlord, who owns a house in a village abadi.

[(4) 'village' means any local area whether compact or otherwise recorded as a village in the revenue records of the district concerned and includes an area declared under clause (25) of Section 3 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 to be a village.]

3. Presumption regarding existing houses.- All houses built in a village abadi and existing on the 15th day of August, 1947, shall, unless the contrary is proved, be presumed to have been built with the consent of the landlord.

4. House-owner's right of user.- Notwithstanding any custom or usage to the contrary in any [village], a house-owner may-

(a) convert his kacha house into pucca, and

(b) make such construction in the sahan darwaza, or land appurtenant to such house as may be necessary for agricultural or domestic purposes,

(c) rebuild or renovate his house whether kachcha or pucca or both, subject to any other law for the time being in force.]"

The said law was repealed but at that point of time, abadi land was under the proprietorship of the landlord.

With the passing of law of the Abolition of Zamindari, all such proprietors and Intermediaries were divested of their rights and the same vested in the State under a notification under Section 4 of the UP Zamindari Abolition And Land Reforms Act, 1950. The State retained the ownership of land subject to the consequences in terms of Section 6 of the Act. It is correct that the State became the owner but it was subject to certain exceptions as contained in Section 9 of the said Act. Section 4, Section 6 and Section 9 are extracted hereinunder:-

"4. Vesting of estates in the State. - (1) As soon as may be after the commencement of this Act, the State Government may, by notification, declare that, as from a [date] to be specified, all estates situate in Uttar Pradesh shall vest in the State and as from the beginning of the date so specified (hereinafter called the date of vesting), all such estates shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.

(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time ta time, the notification referred to in sub-section (1) in respect only of such area or areas as may be specified and all the provisions of subsection (1) shall be applicable to and in the case of every such notification.

6. Consequences of the vesting of an estate in the State. - When the notification under Section 4 has been published in the Gazette, then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensure in the area to which the notification relates, namely :-

(a) all rights, title and interest of all the intermediaries-

(i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries trees (other than trees in village abadi, holding or grove), fisheries, [* * *], tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of sub-section (1) of Section 18 apply; and

(ii) in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not; shall cease and be vested in the State of Uttar Pradesh free from all encumbrances;

(b) all grants and confirmations of title of or to land in any estate so acquired, or of or to any right or privilege in respect of such land or its land revenue shall, whether liable to resumption or not, determine;

(c) (i) all rents, cesses, local rates and sayar in respect of any estate or holding therein for any period after the date of vesting and which, but for the acquisition would be payable to an intermediary, shall vest in and be payable to the State Government and not to the intermediary and any payment made in contravention of this clause shall not be valid discharge of the person liable to pay the same;

(ii) where under an agreement or contract made before the date of vesting any rent, cess, local rate or sayar for any period after the said date has been paid to or compounded or released by an intermediary the same shall, notwithstanding the agreement or the contract, be re-coverable by the State Government from the intermediary and may without prejudice to any other mode of recovery, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III;

(d) all arrears of revenue, cesses or other dues in respect of any estate so acquired and due from the intermediary [or an arrear on account of tax on agricultural income assessed under the U.P. Agricultural Income Tax Act, 1948] (U.P. Act III of 1949) for any period prior to the date of vesting shall continue to be recoverable from such intermediary and may, without prejudice to any other mode of recovery, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III;

(e) all amounts ordered to be paid by an intermediary to the State Government under Sections 27 and 28 of the U.P. Encumbered Estates Act, 1934 (U.P. Act XXV of 1934) and all amounts due from him under the Land Improvement Loans Act, 1883 (U.P. Act XIX of 1883), or the Agricultural Loans, Act, 1884 (U.P. Act XIX of 1884), shall notwithstanding any thing contained in the said enactments, become due forthwith and may, without prejudice to any other mode of recovery provided therefor, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III;

(f) the interest of the intermediary so acquired in any estate shall not be liable to attachment or sale in execution of any decree or other process of any Court, Civil or Revenue and any attachment existing at the date of vesting or any order for attachment passed before such date shall, subject to the provisions of Section 73 of the Transfer of Property Act, 1882 (IV of 1882), cease to be in force;

(g)(i) every mortgage with possession existing on any estate or part of an estate on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such estate or part, be deemed, without prejudice to the rights of the State Government under Section 4, to have been substituted by a simple mortgage;

(ii) notwithstanding anything contained in the mortgage deed or any other agreement, the amount declared due on a simple mortgage substituted under sub-clause (i) shall carry such rate of interest and from such date as may be prescribed;

(h) no claim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is secured by mortgage of such estate or part thereof shall, except as provided in Section 73 of the Transfer of Property Act, 1882 (IV of 1882), be enforceable against his interest in the estate;

(i) all suits and proceedings of the nature to be prescribed pending in any Court at the date of vesting and all proceedings upon any decree or order passed in any such suit or proceeding previous to the date of vesting shall be stayed;

(j) all mahals and their sub-divisions existing on the date immediately preceding the date of vesting and all engagements for the payment of land revenue or rent by a proprietor, under-proprietor, sub-proprietor, co-sharer or lambardar as such shall determine and cease to be in force.

9. Private wells, trees in abadi and buildings to be settled with the existing owners or occupiers thereof. - [All wells], trees in abadi and all buildings situate within the limits of an estate belonging to or held by an intermediary or tenant or other person whether residing in the village or not, shall continue to belong to or be held by such intermediary tenant or person, as the case may be, and the site of the wells or the buildings within the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed."

Together with the above provisions Rule 26 of the UP Zamindari Abolition and Land Reforms Rules, 1952 may also be referred to which is extracted hereinunder:-

"26. Private wells and buildings.-(a) Subject to sub-rule (b), the site of a well or building along with the area appurtenant thereto situate within the limits of an estate shall be deemed to be settled with the owner of the said well, or building, on the following terms and conditions:

(i) He shall have a heritable and transferable interest in the site.

(ii) He shall not be liable to ejectment on any ground whatsoever.

(iii) He shall have the right to use the site for any purpose whatsoever subject to the existing rights to easement.

(iv) Succession shall be governed by personal law.

(v)...........................

(vi)..........................."

It may be mentioned that the said provisions were interpreted from time to time and what needs to be clarified is that the above mentioned provisions are to be read in consonance with Section 117(1) and Section 117(6) of UP Zamindari Abolition and Land Reforms Act, 1950 with which we are concerned in the present case. The said provisions are also extracted hereinunder:-

"117. Vesting of certain lands, etc. in Gaon Sabhas and other Local Authorities.- (1) 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 from a date to be specified in this behalf, all or any of the following things, namely-

(i) lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove;

(ii) forests;

(iii) trees, other than trees in a holding or on the boundary of a holding or in a grove or abadi',

(iv) fisheries;

(v) hats, bazars and melas, except hats, bazars and melas held on lands to which the provisions of Clauses (a) to (c) of sub-section (1) of Section 18 apply or on sites and areas referred to in Section 9; and

(vi) tanks, ponds, private ferries, water channels, pathways and abadi site,-

which had vested in the State under this Act, shall vest in a Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate or partly in one such local authority (including a Gaon Sabha) and partly in another :

Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as may be [specified in such order].

(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 that the State Government may after such resumption make a fresh declaration under sub-section (1) or sub-section (2) vesting the thing resumed in the same or any other local authority (including a Gaon Sabha), and the provisions of sub-sections (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration."

The question as to what would be the meaning of the word vesting in terms of Section 4 in the State came to be considered by the Division Bench in State of U.P. Vs Smt. Ram Sri 1975 RD 339. Under Section 4 of the Act right title and interest of the intermediaries stood divested and was vested in the State with a rider "except as hereinafter provided". Thus only that would vest under Section 4 of the Act except as provided thereafter. What is provided thereafter is to be understood from the consequences flowing from Section 6 of the Act which states that all right, title and interest of intermediaries including Abadi sites would cease to be in force "save as provided in the Act" Then comes Section 9 which is the saving-cum-exception provision which settles buildings, site of buildings and land appurtenant thereto along with wells etc. with the existing owners or occupiers on the date of vesting i.e. 01.07.1950. Thus such settlement as above is by operation of law and the owner or occupier thereof would continue as such with rights from which he cannot be divested as is evident from the absolute nature of rights as explained in Rule 26 of the 1952 Rules. After the State assumes ownership under a notification of Section 4 of the 1950 Act, it has the authority by a separate notification under Section 117(1) of the Act to declare certain classes of land that has vested in the State to vest in the Gaon Sabha or any other local authority. Under Sub-Section (6) of Section 117, the State at any time can withdraw such declaration and retain the land itself. Consequently, the meaning of the word "vest" used in Section 117 of the Act was interpreted as an enabling section for the purpose of allowing the Gaon Sabha to be in possession but that did not mean that the Gaon Sabha was conferred with an absolute title or right over the land mentioned therein after divesting the State of its title. The effect of a notification under Section 117(1) is that the Gaon Sabha has only the right of superintendence, management and control whereas the title over the land remains with the State.

This is, however, subject to the exceptions under Section 9 of the Act read with Rule 26 of the 1952 Rules which by way of fiction mandates that buildings existing over an Abadi site and the site of the building with the area appurtenant thereto, shall be deemed to be settled with the existing owners or occupiers thereof. This stands fortified by Rule 26 of the 1952 Rules extracted hereinabove.

The sum and substance of the aforesaid discussion, therefore, is that the vesting of the right title and interest of the State over such land is subject to the exceptions aforesaid whereby, the land appurtenant together with building sites and wells in occupation of the existing owner or occupier thereof shall be deemed to be settled with such a person. Consequently, the State by virtue of Section 9 acknowledged the existing rights on Abadi sites together with building and land appurtenant thereto in favour of the existing owners and occupiers, such land, therefore, is beyond the control, superintendence or management of the Gaon Sabha. The Gaon Sabha, therefore, cannot claim any such vesting in it in terms of Section 117(1) of the 1950 Act. The natural corollary of the same is that if such land which has been settled with the existing owner or occupier as on the date of vesting which is 1st July, 1952 then the Gaon Sabha cannot be presumed to have been conferred with right of any superintendence, control or management over the same. The issue of either divesting such an owner or an occupier under Section 117(1), therefore, does not arise nor does the said land vest in the Gaon Sabha for superintendence, management and control. Accordingly, such land which has been settled as explained above cannot be subject matter of resumption under Section 117(6) of the 1950 Act, inasmuch as, resumption can be only of such land which has vested in the Gaon Sabha for superintendence, management and control.

This is a statutory right of property acknowledged under Section 9 of the 1950 Act which is further explained by Rule 26 quoted hereinabove which reinforces the rights settled with the existing owner or occupier, making it heritable and even not liable to ejectment on any ground whatsoever. Thus, if Rule 26 of the 1952 Rules creates a statutory Bar of ejectment, then such land which has settled with the existing owner or occupier cannot be made subject matter of resumption under Section 117 (6). The right created under Section 9 read with Rule 26 of the 1952 Rules is a right through a settlement which is permanent in nature. The fiction of deemed settling acknowledges pre existing rights. It is heritable and transferable and is to be governed in matters of succession by personal law. It may be for this reason that the Apex Court in the case of Hinch lal Tiwari Vs. Kamala Devi & Others 2001 (6) SCC 496 in paragraph 8 while construing the provisions of Section 117(1) has held that the expression "and Abadi sites" has been wrongly placed in Clause (vi) of Section 117. The reason is not far to see, namely, land which has been settled in terms of Section 9 would fall outside the purview of Section 117(1) and (6).

Then comes the question of the meaning of the word site of the building, the building and the area appurtenant thereto. This issue has been considered in various cases relating to different types of building. In the case of Raja Sharda Narain Vs. Gram Samaj Thathia 1963 RD 184, the issue was that the existing owner had a dwelling house (Kothi) which was used as a residence by the owner and his employees and infront whereof lay an open area on which a number of trees had been planted and concrete platforms (Chabutra) had been constructed that were being utilized for holding biweekly markets. The plaintiff in the suit was the erstwhile Zamindar of the village who had raised the said constructions prior to the abolition of Zamindari. Since the Gaon Sabha was unlawfully interfering with his possession and enjoyment of the said land appurtenant to the dwelling house and the Chabutras, he filed a suit for injunction. The suit was decreed against which the Gram Sabha filed an appeal that was partly allowed by the learned Additional Civil Judge modifying the decree of the trial court to the extent that the biweekly market held on the land in dispute would not be subject to the said injunction.

The owner filed a second appeal before the High Court in which a cross objection was filed by the Gram Samaj. The appeal was allowed and the cross objection was rejected and the judgment of the trial court was restored in its entirety holding that the concrete chabutras constructed by the plaintiff fell within the definition of building and it will be deemed to have been settled with him by the State Government. The appurtenant land was also part of the Abadi land as involved in the present case. The argument that the said land had vested in the Gaon Sabha was rejected.

As to what is the meaning of the word appurtenant, the Apex Court in the case of Maharaj Singh Vs. State of U.P. AIR 1976 Supreme Court 2602 = 1977 RD Pg 7 reaffirmed the view taken by the Division Bench in the case of State of U.P. Vs. Smt. Ram Sri (supra) relating to the meaning of the word "vest" used in Section 117 and explained that to postulate vesting of absolute title in Gaon Sabha by virtue of Section 117(1) would amount to stultifying and negativing Section 117(6) of the 1950 Act.

The Court held that appurtenance had a distinct and different meaning as to what would be necessary for the enjoyment and used for the purpose of the building would be appurtenant land. It quoted the definition of appurtenance in relation to a dwelling or to school or college which would include land occupied by it and used for the purpose thereof. The Court further clarified that if some other purpose would be fulfilled by the building and the land then it would not fall within the expression appurtenance. The Court further held that in short the touch stone of appurtenance is dependence of the building on what pertains to it for its use as a building.

This issue was again explained with additional clarity after tracing the tenancy laws and their transition upto the abolition of Zamindari in the case of U.P. State Sugar Corporation Ltd Vs. Deputy Director Consolidation reported in 2000 (2) SCC 572. The Gaon Sabha treating the land to have vested in it, leased it out to an individual. The land was actually occupied by the constructions of a Sugar mill since it's establishment in 1932-33 with the permission of the then Zamindar. It was held that the Gaon Sabha on such facts was not empowered to lease out the land as it did not vest in it inasmuch as the land stood settled in terms with Section 9 of the Act with the sugar mill. The constructions and the site were held to be appurtenant to the sugar mill.

The said issue was also examined by a learned Single Judge of this Court in the case of Ramji Rai Vs. Jagdish Mallah & Others 2004 (96) RD 568 (paragraph nos. 10 to 15). The aforesaid issue was also examined by another learned Single Judge in the case of Subhawati & Others Vs. Rajbali & Others 1984 (87) RD 582. In another judgment of this Court by a learned Single Judge in the case of Jaikishan Dass & Another Vs. K.G.K. College & Others 1981 ALJ 683, the building and land appurtenant thereto as understood under Section 9 was explained in relation to quarters, buildings, temples and other such constructions. In the said case, the constructions were existing on slightly less than 2/3 part of the total area consisting of 10 quarters, four to five shops, two kothis and a temple with other tenaments with almost 1/3 of vacant land which was held to be appurtenant to such constructions. The learned Single Judge held that the disputed land appurtenant to the said composite constructions stood settled within Section 9 of the 1950 Act and in our opinion as well the same is the correct exposition of law.

When we speak of a house and all its appurtenances, we mean the house together with all the appliances and accessories adjunct to it as an appendage. Thus, appurtenance has to be understood as belonging naturally and inherently, as a contributory adjunct like a garden to a house. It is a complex scheme and appurtenant land is that which is proper, suited and appropriate for the enjoyment and purpose for which the building was set up. All activities associated with such a building, as in the present context a school, being carried out on such premises would be beneficial for the Institution and for its use in present as well as in future, and hence, would fall within the definition of the word land appurtenant.

It may be mentioned that prior to the abolition of Zamindari, the proprietors of various estates who were Zamindars and Talukdars as well as villagers in general also undertook a lot of philanthropic activities like setting up of Dharamshalas, Vaidhyashalas (Ayurvedic dispensaries), Vyayamshalas (a place for body exercise) and constructions for other sporting activities, for example, Akhadas (a place for wrestling). In addition thereto football fields, playgrounds, and recreation grounds, like Ramlila Maidan purely for religious, charitable and public purposes were also earmarked and continued to be utilized for decades prior to the abolition of Zamindari and even thereafter.

Such places stood protected as was observed by a Division Bench in the case of Janardhan Vs. State of U.P. reported in 1999 (2) AWC 1435 where a land that was collectively enjoyed by the villagers for celebrating "Holika Dahan" (a bonfire on the eve of Holi festival), its user could not be altered by the Village Land Management Committee of the Gram Sabha by reserving it as a place for installing the statue of Baba Saheb Ambedkar.

Apart from this, residential units, offices, garages, stables, granaries, enclosures for haystacks and all such activities connected with village life and rural scenario were set up and utilized not only by the owners and proprietors but also by villagers who raised such constructions for their use. Private wells, concrete water tanks with private facilities for separate bathing of females, performing puja and other religious activities, temples, and other such facilities like concrete drainage connecting private houses also were raised and were meant for private use. Paushalas and cow sheds were a common feature, and therefore, any such building sites and buildings with land appurtenant thereto continued to be utilized for such purposes. Such buildings or land would, therefore, not fall within the resumption Clause of Section 117 (6) as buildings and land appurtenant thereto would stand settled with either the owner or the occupier who was in possession thereof on the date of vesting. Thus, the proportion of the building, its manner of utilization, and its purpose, if established, clearly bring such sites within the fold of Section 9 of the 1950 Act.

Coming to the present case, it is undisputed that the school is running and imparting education in and around Tirwa since the year, 1923 and has been upgraded with facilities like playgrounds, agricultural farm, hostel, office and the like. It is a composite area clearly meant for the purpose of education which is clearly a public purpose and is no less important than housing. The land is being occupied by the school for various purposes and there can be no dispute that every such Institution has the potential of expansion in future. In such circumstances, when once the land has been settled by the Zamindar way back in 1923 itself, which is supported by the 1348 fasli revenue documents indicated above, and also the gazetteer which supports the existence of the Institution for the past almost seven decades, we find the decision of the State to resume the land appears to be abrupt, hasty and without examining the entire material relating to the settlement of land in favour of the petitioner Institution.

The issue of resuming the land for raising a housing colony, ought to have been examined after taking into account the purpose and the utilization of the land by an Educational Institution. The respondents in their counter affidavit have been harping upon the entries and the consequential status of the land as an Abadi of the Gaon Sabha of the abolition of Zamindari.

In view of the facts of this case and the law as discussed hereinabove, what we find is that the land of the Institution which was admittedly being utilized by the Institution for its own purposes has been completely overlooked by the State Government, and even by the authorities, including the Collector who ought to have taken care of these factors before proceeding to recommend any such resumption. To resume the land for another public purpose as against the purpose which is being served currently ought to have been accounted for before proceeding to resume the land. The procedure for resumption under Section 117(6) in the present case is intertwined with the fact of the land having being settled by the proprietor of the estate way back in 1923 and which land continues to be in the possession of the Institution till the passing of the impugned resumption order. Even if the part of the land which was alleged to be under unauthorized occupancy and the entry whereof has been restored back to Abadi, the same would not erase the fact of the establishment of the Institution and the land having been virtually endowed for the said purpose by the then proprietor of the estate. This would, therefore, be a clear settlement in favour of the Institution in terms of Section 9 of the 1950, Act thereby rendering the resumption of the land as unlawful for the reasons already stated hereinabove. There cannot be an unguided procedure adopted for resumption which would clearly be a colourable exercise of power to somehow the other deprive the Institution of a valid possession of the land that can be termed as having been duly settled with the Institution in terms of Section 9 of the 1950 Act. In essence the State Government or the District Magistrate could not have adopted an indirect method of resuming land which the Institution could not be deprived of indirectly. The playground, farm, hostel and land appurtenant thereto cannot be uprooted nor can they be shifted so as to segregate a consolidated complex whereas land for housing can be accommodated elsewhere. The District officials seem to have made no effort to envision this. As already pointed out above Rule 26 of the 1952 Rules prevents ejectment and therefore an indirect method of resumption cannot be permitted on such facts.

We may also put on record that even in matters of land being occupied by Educational Institutions that could be possibly claimed to be a land belonging to the State and managed by the Gram Sabha, the Apex Court in the case of Jagpal Singh & Others Vs. State of Punjab & Others 2011 (11) SCC 396 has made an exception in favour of Educational Institutions observing that if the same amounts to an encroachment it should be compounded, which is however not the case here.

Nonetheless as observed above in the present case, the Institution cannot be said to have been divested of its settlement that has its foundations in the Institution having been established with the land appurtenant by the proprietor of the estate long before the abolition of Zamindari. The said possession and occupation was never disputed and the Institution continued to be in possession. There is also no doubt that the Zamindar/Talukdar who is the proprietor of the estate had full and absolute rights to settle the land as he was proprietor of every inch of the same.

It is also important to bear in mind that at times highhanded village Pradhans create chaos by asserting such authority with the aid of State officials or otherwise and consequently the State and it's authorities or the Gaon Sabha cannot be given a free hand to claim every abadi site even if it belongs to an individual or to an Institution as in the present case.

It has been held that the power of resumption is exercised under delegated authority by the District Magistrate/Collector as observed in Gram Panchayat Rampur Vs. State of U.P. 2009 (106) RD 1 and resumption for another public purpose is permissible as held in Kripa Shankar Pandey Vs. Deputy Director of Consolidation Ballia & Others 2015 (129) RD 690. It has also been held that land earmarked for the general benefit of villagers can be resumed for housing purposes in the case of Dev Nath Yadav Vs. State of U.P. 2010 (111) RD 145 but in that case there was no issue relating to the land having been settled under Section 9 of the Act. It was observed that were no fetters on the power of the State but the said observation is limited in comparison to the powers of Gaon Sabha. The same does not mean to say that there are no fetters even in matters arising out of Section 9 of the Act. We may clarify that powers of resumption cannot be exercised by the State where the land has been settled in terms of Section 9 of the Act. The existence of the Institution is now about a century old. The deemed settlement provision of Section 9 of the 1950 Act consolidates an existing right. The Gaon Sabha could get rights only after 01.07.1952 on such land that was not settled with the owner or occupier. The power of resumption could not be exercised in respect of such land.

Consequently, with this material available on record, it was the duty of the District Magistrate as well as other revenue officials to have first studied the records prior to abolition of Zamindari and made a survey before proposing any such resumption for the scheme of the Government as has been done in the present case. The abrupt notification without carrying out any survey and without there being any participation of the petitioners in any such enquiry being made for resumption, we find that notification of the resumption suffers from an error which deserves to be quashed.

Consequently, for all the reasons given herein above, we find the notification has not been carried out in the bonafide exercise of authority under Section 117(6) of Act, 1950 after following the correct procedure under the law and examining the entries as well as the actual status of the land in question. The land is being utilized by a recognised Institution under the 1921 Act which is serving a public purpose. This aspect also appears to have been over looked and consequently the notifications impugned under Section 117(6) of the Act, 1950 dated 06.12.2008 and 08.12.2008 clearly appear to be an outcome of a decision which is vitiated in law and deserves to be set aside.

We accordingly allow the writ petition and quash the notifications dated 6th December, 2008 and 8th December, 2008 (Annexure 21 and 22 respectively to the writ petition). The consequential endorsement of mutation dated 11.02.2008 is also set aside.

The writ petition is accordingly allowed.

Order Date :- 18.5.2018

A. Verma/S.Chaurasia