Gopal Tandon And Others vs State Of U.P. And Another
2019 Latest Caselaw 2266 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 20.11.2018
 
Delivered on 02.04.2019
 
Court No. - 34
 
Review Petition No. 293694 of 2016
 
			IN
 
Case :- WRIT - C No. - 45331 of 2009
 

 
Petitioner :- Gopal Tandon And Others
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Dr. Madhu Tandon,A.K. Singh, P.K. Srivastava, Ram Swaroop Umrao
 
Counsel for Respondent :- C. S. C.,P.K. Singh,Pradeep Kumar Singh
 

 
Hon'ble Sudhir Agarwal,J.
 
Hon'ble Om Prakash-VII,J.
 
(Delivered by Hon'ble Sudhir Agarwal, J.)
 
1.	This is a review application filed on behalf of Moradabad Development Authority (hereinafter referred to as "MDA") praying for review and recall of judgment dated 05.05.2016 passed by this Court in Writ Petition No. 45331 of 2009. Writ petition was decided on the basis of consensus stand taken by counsel for review-applicant who was appearing at the time of hearing on 05.05.2016. However this review application has been filed through a different counsel.
 
2.	Grounds taken in review are that disputed land was already declared surplus under the provisions of Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as "Act, 1976") and had vested in State whereafter it was transferred to MDA.
 
3.	Before referring to facts stated by review applicant in the affidavit accompanying this application it would be appropriate to refer facts in brief as borne out from pleadings of writ petition.
 
4.	Writ petition was filed by three petitioners, namely, Gopal Tanson, Smt. Madhu Tandon and Vipul Tanson. It was filed in respect of land in Khasra No. 251 area 0.190 hectare (1426.56 sq. meter). It was pleaded by petitioners that aforesaid land was never acquired under the provisions of Land Acquisition Act, 1894 (hereinafter referred to as "Act, 1894") or under any other statute. It was all through a Bhumidhari land of petitioners and in their possession. MDA started development of residential colony in the vicinity of disputed land and approached petitioners to deliver disputed land for being utilized for better formation of colony and in lieu thereof petitioners were assured of given possession of another developed plot/ plots. Possession of disputed land, consequently, was taken by MDA and they agreed to give an equal area of developed plot or price of such plot. Deputy Secretary, MDA prepared a plan proposing plots No. 10C-20 and 10C-21 in Sector 10 of New Moradabad Scheme. In respect of difference of area vis-a-vis development charges, it proposed that a sum of Rs. 3,25,468/- shall be paid by petitioners towards development fee and Rs. 1,39,745/- towards additional area of substituted land. Thereupon Secretary, MDA passed following order:
 
**çkFkhZx.k ls fdlh U;k;ky; esa okn yfEcr u gksus fo"k;d 'kiFk&i= ys fy;k tk; rFkk fodkl 'kqYd ,oa vfrfjDr Hkwfe dh ns;rk dh jkf'k tek djk yh tk;A mDr 'krkZsa ds lkFk çLrko** 
 
"Affidavit be taken from the applicants regarding no case being pending with any court, and development fee and due amount with respect to extra land be ensured to be deposited. Proposal with the said terms."   (English translation by Court) 
 
5.	Petitioners conveyed consent. The said proposal was submitted to Vice Chairman, MDA for approval but it did not approve the same.
 
6.	Petitioners made a representation dated 27.02.2009 stating that their land in Khasra No. 251 area 1426.56 sq. meter was neither acquired nor it was ever part of any ceiling proceeding still forcibly taken in possession by MDA for development of residential colony and assurance to petitioners to provide alternative land ha not been fulfilled; therefore, either alternative land be provided or compensation at the rate of market value be paid.
 
7.	Thereafter petitioners came to this Court in Writ Petition No. 45331 of 2009, in which following order was passed on 08.08.2011: 
 
	"Heard Sri G.N. Verma, learned senior counsel for the petitioner and Sri P.K. Singh appearing for the respondent no.2. 
 
	By this writ petition, the petitioners have prayed for a mandamus directing the respondent no.2 to release the plots of the petitioners of which possession has been taken by them illegally. Learned counsel for the petitioners submitted that petitioners are Bhumidhars of plot no.251, measuring area 1426.56 sq. mtrs. of village Mau, Tehsil and District Moradabad. 
 
	Sri P.K. Singh submits that the development authority itself has issued letter to the petitioners on 28.08.2010, copy whereof is annexed as Annexure SCA-'1' to the supplementary counter affidavit. He submits that by letter dated 28.08.2010, the petitioners were asked to submit their papers regarding ownership of the land, but neither they appeared nor submitted the relevant papers before the authority. 
 
	Learned counsel for the petitioners contended that petitioners have sufficient materials on record to show that they are the owners, including the own admission of the Development Authority. However, we are of the view that since the petitioners have not yet replied the notice of the authority, it is appropriate that petitioners may appear before the development authority along with detail reply of the notice annexing therewith the relevant materials on the basis of which they claim title of the land. We further direct the respondent no.2 to take appropriate decision within a period of four weeks from the date a copy of the representation is submitted by the petitioners. 
 
	List this petition on 15.09.2011. A certified copy of this order be furnished to learned counsel for the petitioners on payment of usual charges by tomorrow."
 
8.	Consequently, Vice Chairman passed order dated 24.09.2011 stating that Gata No. 251 as per Revenue record had total area of 0.360 hectare. As per khatauni, in respect of area 0.170 hectare, MDA was recorded in Revenue records and remaining 0.190 hectare land was declared surplus under Act, 1976. However, in column 7 to 12 of Khatauni, vide order dated 12.08.2002 of Tahsildar Moradabad, it was mentioned in respect of Gata No. 251A, area 0.190 hectare that name of original Tenure Holders, namely, Nasir son of Rahim Bux be deleted and names of purchasers, Rakesh Kumar son of late Dharam Singh; Anil Kumar Singh son of Sri Mahendra Singh and Sudhir Singh son of Sri Nepal Singh be entered. Since in Revenue record there was no mutation of petitioners' name, therefore, petitioners have no claim over disputed land. 
 
9.	Petitioners filed representation dated 14.10.2011 seeking recall and review of order dated 24.09.2011 stating that said order has been passed on incorrect facts. It is said that pursuant to three sale deeds dated 31.01.1998, disputed land was purchased by petitioners. Each sale deed relates to Gata No. 251(M) area 475.52 sq. meter and, therefore, total area of law under above three sale deeds came to 1426.56 sq. meter. Mutation does not affect title particularly when disputed land is not agricultural but Urban and is a part of Abadi within Moradabad City. It was also stated in para 7 of representation that only 0.170 hectare land in Gata No. 251 was shown in the name of MDA but rest land did not belong to MDA. It was validly purchased by petitioners by way of three sale deeds dated 31.01.1998. It was also said that Gata No. 251 had total area of 0.360 hectare out of which 0.170 hectare was acquired/taken/ possessed by MDA. Remaining 0.190 hectare remained in ownership of erstwhile owner and 3/4 part of said land by means of three sale deed was purchased by petitioners and remaining 3/4 part was purchased by Rajesh Kumr, Anil Kumar Singh and Sudhir Singh, i.e., 475.52 sq. meter. Above three persons have not purchased entire 0.190 hectare land but only 1/4 part of said land. It was also pointed out that Gata No. 251 was earlier recorded in the name of Nasir and after deleting his name Tehsildar passed order for mutation of names of Rajesh Kumar, Anil Kumar Singh and Sudhir Singh though above three persons got sale deeds from Ferman Ali and Smt. Reshma, whose names were never mutated.
 
10.	Petitioners also filed application for recall of order dated 12.08.2002 passed in Case No. 1094 of 2002 under Section 34 of Land Revenue Act, 1901. Vide order dated 20.11.2012 Tehsildar (Sadar) revoked order dated 12.08.2002 and subsequently passed order dated 22.04.2013 as under: 
 
	^^fu.kZ;
 
	izLrqr okn dh dk;Zokgh dk;kZy; lc jftLV~kj eqjknkckn ds fodz;i= fnukad 24-04-02] ls izkIr lR;izfrfyfi ds vk/kkj ij okn ntZ jftLVj dj b'rgkj vke tkjh fd;k x;kA tks fd okn rkehy layXu i=koyh gSA dksbZ vkifRr u vkus dh n'kk es fnukad 12-8-02 dks ukekUr.k Lohdkj fd;k x;kA mijksDr fodz;i= fn0 24-4-02 es vafdr xkVk la[;k [email protected] gs0 esa ls [email protected] Hkkx o xkVk la0 [email protected] gS0 esa  ls [email protected]  Hkkx fodzsrk }kjk fodz; fd;k x;k] ctfj;s fodz;i= ds ukekarj.k vkns'k fn0 12-8-02 ds rgr fodzsrk dk uke mijksDr vkjkth ds odnj Hkkx ls [kkfjt dj fn;k x;k] ftlds fo:) xksiky V.Mu ds }kjk oktok uEcj izkFkZuki= izLrqr fd;k] ftl ij i{kksa dks lquus ds ckn fnukad 20-11-12 dks iwoZ es ikfjr ,d i{kh; vkns'k fnukad 12-8-02] fujLr dj okn iquZthfor dj vkifRr gsrq frfFk fu;r dh xbZA foiqy VUMu ds }kjk vkifRr bl vk'k; dh izLrqr dh xbZ] fd iz'uxr vkjkth [kljk uEcj 251v jdck 0-190 gS0 ds iwoZ esa ekfyd ukflj Fks] ukflj dh e`R;q mijkUr muds tk;t okfjl ds :i esa guhQ o 'kjhQ o ;kehu o vlye iq=x.k ukflj ds uke fojklr ds :i ntZ gq,A 'kkjhQ o ;klhu o guhQ ds }kjk eq[rjs vke ekS0 eqfLye dks fu;qDr fd;k x;k rFkk cgSfl;r eq[rkjsvke bu rhuksa Hkw&/kkjdksa dk xkVk la0 [email protected] 0-344 gS0 esa [email protected] va'k o xkVk la[;k [email protected] gS0 esa [email protected] Hkkx eqfLye ds }kjk 3 i`Fkd&i`Fkd fodz;i=ksa ds }kjk dqy fjdkMZ [email protected] o0eks0 jdcbZ vkifRrdrkZx.k dks fodz; dj fn;k rFkk vlye ds }kjk Hkh eq[rkjsvke ekS0 eqfLye dks fu;qDr fd;k x;k] vlye dk va'k [email protected] eq[rkjsvke ekS0 eqfLye us Qjeku vyh ,M0 iq= uks'ks vyh o Jherh js'kek iRuh ekS0 eqfLye fu0 gjFkyk dks fnukad 28-10-99 dks fodz; dj nh] vkifRr ds vUr esa fodz;i=ksa ds vuq:i lHkh mHk;i{kks ds i{k esa ukekUrj.k Lohdkj dj okn dk fuLrkj.k djus dk vkxzg fd;k x;k rFkk lk{; esa fodz; i= fnukad 11-8-98] 18-12-01] 28-10-99 o 24-4-02 o eq[krkjs vke fn0 9-1-98 o 7-1-98 o 1-5-98 o gky [krkSuh o"kZ 1416&1421 Q0 nkf[ky dh gSA
 
	,d vU; i=koyh okn la[;k [email protected] quhQ vkfn cuke ulhj tks ys[kiky dh i-d- 1 ij ulhj dh fojklr ls lEcfU/kr gS] ftl ij fnukad 5-5-03 dks ulhj dh fojklr mlds lxs iq= guhQ o 'kjhQ o vlye iq=x.k ulhj o vkfon o tkfgn okfyx o fQjkt uk0 ok0 va'kq 15 lky o eql0 fd'ojh iRuh Lo0 ;klhu iq= ulhj ds uke ntZ dh xbZ] ftlesa jkts'k dqekj ds }kjk iwoZ esa ikfjr vkns'k fn0 23-1-04 dks Lohdkj djrs gq,] vkns'k fnukad 5-5-03 [kafMr djrs gq, okn la[;k 366 ij ikfjr vkns'k fnukafdr 12-08-02 ;Fkkor j[kk x;k] vc fnukad 20-11-12 dks okn  la[;k 366 ij ikfjr vkns'k fnukad 12-8-02 fujLr gks pqdk gS rFkk nksuksa okn i=kofy;kWa ,dtkbZ gSA foiqy nUMu ds }kjk fyf[kr cgl izLrqr dh xbZ] rn~mijkUr vkns'k gsrq frfFk fu;r dh xbZA
 
	esjs }kjk i{kksa dks lquk x;k rFkk i=koyh dk voyksdu fd;k x;k voyksdu ls fofnr gS] fd fLFkr vkjkth okds xzke eÅ eqjknkckn ds xkVk la[;k 222 dck0 0-344 gS0 o 25 v jdck 0-190 gS0 ij Hkw/kkjd ds :i esa ukflj Ikq= jghe c['k dk uke ladze.kh; Hkwfe/kj ds :i esa ntZ gS] ukflj iq= jjghe dh e`R;q mijkUr muds okfjl esa guhQ o 'kjhQ o ;klhu o vlye ekS0 eqfLye dks e[rkjsvke fu;qDr fd;k x;k]  ftlds  rgr eq[rkjsvke ekS0 eqfLye }kjk oknhi{k ds i{k esa i`Fkd&i`Fkd fodzi=ksa ls xksiky V.Mu vkfn ds i{k esa fu"ikfnr fd;s x;s] ftlds iqf"V fodz;i=ksa dks lR;izfr ls gksrh gS] fodz;i=ksa ds rgr ukekUrj.k fd;s tkus ;ksX; gSA
 
	vkns'k
 
	vr% vkns'k fd;k tkrk gS] fd fLFkr vkjkth okds xzke eÅ rglhy o ftyk eqjknkckn ds [kkrk la[;k 405 ds xkVk la[;k 222 jdcbZ 0-344 gS0 o xkVk la[;k 251&fe0jjdcbZ 0-190 gSd0 dqy 2 fdrs jdcbZ 0-534 gSD0 ds cdnj Hkkx ls ¼fodzsrk @ [kkrsnkj½ guhQ o 'kjhQ iq=x.k ulhj o vkfcn o tkfgn okfyx o fQjkt uk0ok0 vk;q 15 lky o Jherh fd'kojh csok Lo0 ;klhu iq= ulhj fuoklhx.k feykd eÅ rglhy eqjknkckn ds uke [kkfjt djds muds LFkku ij uke ¼dzsrk½ xksiky VUMu iq= Jh ds0oh0 ,y0 VUMu o foiqy VUMu iq= xksiky VUMu o Jherh e/kq VUMu iRuh xksiky VUMu fuoklhx.k 63 vkokl fodkl flfoy ykbUl] eqknkckn o jkts'k dqekj iq= Lo0 /keZ flag fuoklh lnqiqjk ftyk eqjknkckn o vfuy dqekj flag iq= egsUnz flag fuoklh gkfQtiqjj rg0 o ft0 lEHky o lq/khj flag iq= usiky flag fuoklh Qwyiqj rglhy eqjknkckn ds uke ctfj;s 2 fodz;i= fn0 24-4-02 o 3 fodsz;i= fn0 11-8-98 o fn0 28-10-99 ds jktLo vfHkys[kks esa ladze.kh; Hkwfe/kj ds :i esa ntZ gksA i=koyh okn vey njken nkf[ky nQ~rj gksA**
 
"Order
 
	Consequent upon the receipt of true copy of the sale-deed dated 24.04.2002 from the office of Sub-Registrar, Moradabad, the instant case was registered and a public notice was issued, which after service is annexed with the file. As no objection was filed, the mutation was allowed on 12.08.2002. One-fourth of 0.190 hectare of gata number 251A and three-fourth of 0.344 hectare of gata number 222 mentioned in the aforesaid sale deed dated 24.04.2002 was sold by the seller. Through the mutation order dated 12.08.2002 on the basis of sale deed, the name of the seller was struck off from the records with respect to the land, challenging which an application was presented by Gopal Tandon. After hearing both the parties over the matter on 20.11.12, the earlier ex-parte order dated 12.08.2002 was cancelled and the case was restored, fixing date for filing objections. Objection was submitted by Vipul Tandon to this effect that Nasir was previously the owner of the land with khasara number 251A bearing area 0.190 hectare. After the death of Nasir, the names of Hanif, Sharif, Yamin and Aslam, sons of Nasir came to be registered as successors. Mohammed Muslim was given General Power of Attorney by Sharif, Yasin and Hanif, exercising which Muslim sold ¾ of 0.344 hectare of gata number 322 and ¼ of 0.190 hectare of gata number 251A of these three land holders through 03 separate sale-deeds i.e. a total of 1/426.56 of total area was sold to objectors. Mohd. Muslim was also given General Power of Attorney by Aslam. Exercising said General Power of Attorney, Mohd. Muslim sold one-fourth of Aslam's part to Farman Ali Advocate s/o Noshe Ali and Smt. Reshma w/o Mohd. Muslim r/o Harthala on 28.10.1999. At the end of the objections, mutation in favour of both the parties was requested to be allowed and the matter to be disposed of taking the objections into account. As evidence, sale-deeds dated 11.08.98, 18.12.01, 28.10.99 and 24.04.02 and  General Power of Attorney dated 09.01.88, 07.01.98 and 01.05.98 and recent Khatauni for the year 1416-1421 fasali have been submitted. 
 
	Another file is related to suit no. 45/967 Hanif and others Vs Nasir, which is related to Pa. Ka. - 1 of lekhpal, wherein Hanif, Sharif and Aslam Ss/o Nasir; Abid and Zahid, adults, Firoz, minor,  Anshu, aged 15 years and Smt. Kishwari w/o Late Yasin s/o Nasir were on 5.5.03 registered as successors of Nasir. In this matter, Rajesh Kumar allowed the order dated 23.01.04 passed previously; quashed the order dated 05.05.03; and maintained the order dated 12.08.02 passed in the suit no. 366. The order dated 12.08.02 passed in suit no. 366 is cancelled, and both the cases are connected now. Written arguments were filed by Vipul Tandon; thereafter, the date for order was fixed.
 
	Heard both the parties and perused the file. From the perusal, it transpired  that the name of Nasir s/o Rahim Bakhs is registered as bhoomidhar with alienable rights on the gata no. 222 bearing total area 0.344 hectare and gata no. 25 A bearing total area 0.190 hectare of the land situated in the village - Mau in the district - Moradabad. After the death of Nasir s/o Rahim, Mohd. Muslim was given General Power of Attorney by the former's successors Hanif, Sharif, Yasin and Aslam, exercising which separate sale deeds were executed in favour of Gopal Tandon and others, which gets substantiation from the true-copies of the sale-deeds, and on the basis of these sale-deeds, mutation deserves to be effected."        
 
O R D E R

Hence, it is ordered that by deleting the names of (sellers/khatedaar) Haneef and Shareef sons of Naseer, Abid and Zahid (major), Firaz (minor) aged 15 and Smt. Kishwari Devi W/o Late Yaseen S/o Naseer, residents of Milaak, Mau Tahsil, Moradabad from Gata No. 222 measuring 0.344 hectare and Gata No. 251 Mi. measuring 0.190 hectare totalling 0.534 hectare, both pertaining to Khata No. 405 for the plot situated at Village Mau, Tahsil and District Moradabad; the names of (buyers) Gopal Tandon S/o KVL Tandon, Vipul Tandon S/o Gopal Tandon and Smt. Madhu Tandon W/o Gopal Tandon residents of 63 Awas Vikas Civil Lines, Moradabad, and Rajesh Kumar S/o Late Dharm Singh resident of Sadupura, District Moradabad, Anil Kumar Singh S/o Mahendra Singh R/o Hafizpur, Tahsil and District Sambhal and Sudhir Singh S/o Nepal Singh R/o Phoolpur, Tahsil Moradabad be added in their places as bhumidhaar with transferable rights in the revenue records by way of two sale-deeds dated 24.04.2002 and 3 sale-deeds dated 11.08.1998 and 28.10.1999. After execution, the file be consigned to office."

(English translation by Court)

11. Aforesaid order was corrected vide order dated 11.12.2013 and after cancelling order dated 22.04.2013 corrected order was passed as under:

^^la'kks/ku vkns'k

dzsrk foiqy VUMu ds }kjk iwoZ esa ikfjr vkns'k fnukd 22-04-2013 esa la'kks/ku gsrq ,d izkFkZuk i= bl vk'k; dk fn;k fd iz'uxr okn ds [kljk uEcj 222 jdok 0-344 gSDV0 ds iw.kZ Hkkx dh vkjkth dks o [kljk uEcj 251 v jdok 0-190 gSDV0 ds cdnj Hkkx dh vkjkth dks dzsrkx.k jkts'k dqekj vkfn ds }kjk fodz; i= fnukad 24-04-2002 ds }kjk dz; fd;k x;k gS] rFkk [kljk uEcj 251 jdok 0-190 ds cdnj Hkkx dks xksiky VUMu vkfn ds }kjk fodz; i= fnukad 31-01-1998 o 31-01-1998 o 31-01-1998 ds }kjk dz; fd;k x;k] ysfdu iz'uxr vkns'k fnukd 22-4-2013 ds }kjk [kljk uEcjku 222 o 251 esa mDr dzsrkx.k ds uke =qfVo'k vafdr dj fn;s x;s gSa] tks iz'uxr fodz;i=ksa ds foijhr gSA izkFkZuk i= ds var esa fodz;i=ksa ds vuq:i iz'uxr vkns'k esa la'kks/ku fd;s tkus dk vkxzg fd;k x;kA rnksijkUr fuLrkj.k gsrq frfFk fu;r dh xbZA

esjs }kjk i=koyh dk voyksdu fd;k x;kA iz'uxr fodz; i= fnukad 24-04-2002 ds i`"B 01 o 02 voyksdu ls fofnr gS fd dszrkx.k jkts'k dqekj vkfn ds }kjk [kljk uEcj 222 dk iw.kZ Hkkx o [kljk uEcj 251 dk iw.kZ Hkkx esa ls [email protected] Hkkx dks dz; fd;k x;k gS rFkk fodz; i= fnukad 31-01-1998 ds i`"V 04 ds voyksdu ls fofnr gS fd dzsrkx.k xksiky VUMu vkfn ds }kjk [kljk uEcj 251 ds cdnj [email protected] Hkkx dks dz; fd;k x;k gS] tcfd iz'uxr vkns'k 22-04-2013 ds }kjk Vad.k xyrh ls fodzsrkx.k ds uke ds LFkku ij mDr lHkh dzsrkx.k ds uke vfdr fd;s x;s gSa] tks fodz;i=ksa ds foijhr gSA mDr foospuk ds vk/kkj ij iz'uxr fodz;i= ds ifjn`'; esa iz'uxr vkns'k fnukd 22-04-2013 es fujLr d fodz; i= ds vuq:i ukekUr.k Lohdkj djrs gq;s izkFkZuk i= dk fuLrkj.k fd;k tkrk gSA

vkns'k

vr% vkns'k fn;k tkrk gS fd iwoZ esa ikfr vkns'k fnukd 22-04-2013 fujLr fd;k tkrk gS] rFkk xzke eÅ rglhy o ftyk eqjknkckn ds [kkrk uEcj 405 ds [kljk uEc 222 dok 0-344 gsDV0 yxku ceqftc [krkSuh ds iw.kZ Hkkx ls fodzsrk guhQ o 'kjhQ iq=x.k ulhj o vkfcn o tkfgn ckfyx o fQjkt ukckfyx vk;q 15 lky o Jherh fd'kojh ifRu Lo0 ;klhu iq= ulhj fuoklhx.k xzke eÅ rglhy o ftyk eqjknkckn ds uke [kkfjt djds muds LFkku ij dszrkx.k jkts'k dqekj iq= Lo0 /keZ flag fuoklh xzk lnqiqk ftyk eqjknkckn o vfuy dqekj flag iq= egsUnz flag fuoklh xzke gkfQtiqj rglhy o ftyk lEHky o lq/khj flag iq= usiky flag fuoklh xzke Qwyiqj rglhy o ftyk eqjknkckn ds uke fodz; i= fnukad 24-04-2002 ds vk/kkj ij ldze.kh; Hkwfe/kj ds :i esa ntZ gks] rFkk [kkrk uEcj 405 ds [kljk uEcj 251 v jdok 0-191 gsDV0 yxku ceqftc [krkSuh ds iw.kZ Hkkx ls fodzsrk guhQ o 'kjhQ iq=x.k ulhj o vkfcn o tkfgn ckfyx o fQjkt ukckfyx vk;q 15 lky o Jherh fd'kojh ifRu Lo0 ;klhu iq= ulhj fuoklhx.k xzke eÅ rglhy o ftyk eqjknkckn ds uke [kkfjt djds muds LFkku ij dzsrkx.k jkts'k dqekj iq= Lo0 /keZ flag fuoklh xzk lnqiqk ftyk eqjknkckn o vfuy dqekj flag iq= egsUnz flag fuoklh xzke gkfQtiq rglhy o ftyk lEHky o lq/khj flag iq= usiky flag fuoklh xzke Qwyiqj rglhy o ftyk eqjknkckn o xksiky VUMu iq= ds0oh0 ,y0 VUMu o foiqy VUMu iq= xksiky VUMu o e/kq VUMu ifRu xksiky VUMu fuoklhx.k 63] vokl fodkl flfoy ykbUl eqjknkckn ds uke fodz; i= fnukad 31-01-1998 ds vk/kkj ij ladze.kh; Hkwfe/kj ds :i esa ntZ gks] okn vey njken i=koyh nkf[ky nQ~rj gksA**

"AMENDED ORDER

An application has been filed by the buyer Vipul Tandon for amendment in order dated 22.04.2013 passed earlier to the effect that the entire part of the property of Khasra No. 222 measuring 0.344 hectare and remaining portion of property of Khasra No. 251Aa measuring 0.190 hectare mentioned in the suit-in-question were purchased by the buyers Rajesh Kumar and others vide sale-deed dated 24.04.2002; and remaining portion of property Khasra No. 251 measuring 0.190 hectare was purchased by Gopal Tandon and others vide sale-deeds dated 31.01.1998, 31.01.1998 and 31.01.1998 but the names of the said buyers have been recorded by mistake in Khasra Nos. 222 and 251 vide impugned order dated 22.04.2013, which is contrary to the sale-deeds-in-question. At the end of the application, it is requested that the impugned order be amended in line with the sale-deeds. Thereafter, a date was fixed for its disposal.

The file was perused by me. From the perusal of pages 1 and 2 of the sale-deed-in-question dated 24.04.2002, it is apparent that the entire portion of Khasra No. 222 and 1/4th portion out of Khasra No. 251 have been purchased by the buyers Rajesh Kumar and others; and from the perusal of page 4 of the sale-deed-in-question dated 31.01.1998, it is apparent that a portion to the extent of 3/4th part out of Khasra No. 251 has been purchased by the buyers Gopal Tandon and others whereas by way of impugned order dated 22.04.2013, the names of all the said buyers have been recorded in place of the names of the sellers due to typographical error, which is contrary to the sale-deeds. On the basis of the aforesaid discussion, the application is disposed of by allowing the mutation according to the sale-deed amending the impugned order dated 22.04.2013 keeping in view the sale-deed in question.

Order

Hence, the order dated 22.04.2013 passed earlier is ordered to be cancelled; and from the whole part of the land mentioned at khasra no. 222 of khata no. 405 and having the area of 0.344 hectare located at Village Mau, Tehsil and Distt Moradabad and entailing lagaan (revenue) as per khatauni, the names of sellers Haneef and Sharif sons of Nasir, Abid and Zahid (major) and Firoz (minor), aged 15 and Smt Kishwari w/o Late Yasin s/o Nasir r/o Village Mau, Tehsil and District Moradabad be struck off and in their place, the names of buyers Rajesh Kumar s/o Late Dharm Singh r/o Village - Sudupa, District - Moradabad and Anil Kumar Singh s/o Mahendra Singh r/o Village Hafizpur, Tehsil and Distt Sambhal and Sudhir Singh s/o Nepal Singh r/o Village Phoolpur, Tehsil and Distt Moradabad be recorded on the basis of sale-deed dated 24.04.2002 as bhumidhars with alienable rights; and from the whole part of the land at khasra no 251A of khata no 405 and having the area 0.191 hectare and entailing lagaan (revenue) as per khatauni, the names of sellers Hameed and Sharif sons of Nasir, Abid and Zahid (major) and Firoz (minor) aged 15 years and Smt Kishwari w/o Late Yasin s/o Nasir r/o Village Mau, Tehsil and District Moradabad be struck off and in their place, the names of buyers Rajesh Kumar s/o Dharm Singh r/o Village - Sudupa, District - Moradabad, Anil Kumar Singh s/o Mahendra Singh r/o Village Hafizpur, Tehsil and District Sambhal, Sudhir Singh s/o Nepal Singh r/o Village Phoolpur, Tehsil and Distt Moradabad and Gopal Tandon s/o K.V.L. Tandon and Vipul Tandon s/o Gopal Tandon and Madhu Tandon w/o Gopal Tandon, residents of 63 Awas Vikas, Civil Lines, Moradabad be recorded on the basis of sale-deed dated 31.01.1998 as bhumidhars with alienable rights. After execution the file be consigned to office."

(English translation by Court)

12. Aforesaid order of Tehsildar was communicated to Vice Chairman, MDA vide letter dated May, 2013 but thereafter nothing was done by MDA.

13. MDA filed counter affidavit in writ petition wherein it did not dispute claim of petitioners over disputed land and that they are entitled for alternative land or compensation. It would be appropriate to refer para 12 of counter affidavit as under:

"12. That the contents of the paragraph no. 19 of the writ petition are not admitted in the manner stated and are denied. In reply it is submitted that the M.D.A. has all a long been redy to honour the commitment made to the petitioner as per their letters dated 19.8.2006 and 2.12.2006 which were issued in response to petitioners own letter dated 31.5.2006."

14. It is in this backdrop that on the statement given by counsel for MDA this Court decided writ petition vide judgment dated 05.05.2016.

15. It appears that under a misconception and pleading some wrong facts, MDA approached Supreme Court stating that land in dispute was already declared surplus and transferred to MDA hence petitioners were not entitled for any compensation. MDA raised grievance that this aspect has not been considered by Court. It is in this backdrop Supreme Court passed following order permitting MDA to withdraw their appeal so as to approach this Court by filing a review application:

"Mr. H.P. Rawal, learned senior counsel, appearing for the petitioner, seeks permission to withdraw this Special Leave Petition so as to file a Review Application before the High Court for the reasons stated in the memo of petition.

We permit the petitioner to withdraw the petition so as to approach the High Court.

In the meantime, there shall be stay of operation and implementation of the impugned judgement.

The Special Leave Petition is, accordingly, disposed of as withdrawn.

We are sure that the High Court will look into the matter objectively and shall decide the same in accordance with law.

The Review Application, is mentioned above, shal be filed within fifteen days from today and if the Review Application is not filed with the time granted, the ad interim relief granted today shall stand vacated.

If the Review Application is rejected, it would be open to the petitioner to challenge the impugned order by approaching this Court again."

16. Now the sole ground on which this review application has been filed is that sale deed dated 31.01.1998 executed by a Power of Attorney Holder in favour of petitioners is fake and bogus sale deed; petitioners have not approached this Court with clean hands; sale deed dated 31.01.1998 cannot convey any right of ownership upon petitioners since land was already declared surplus, vested in State free from all encumbrances and, therefore, petitioners have come to this Court with unclean hands.

17. In review application MDA has pleaded, in the affidavit, following facts:

(A) Plot No. 251 has total area 0.89 acres/3600 sq. meter situate at Village Mau, Moradabad. It was originally recorded in the name of Nasir son of Rahim Bux.

(B) Pursuant to proceedings initiated under Act, 1976 Nasir submitted statement under Section 6 and case was registered as Ceiling Case No. 15/ 2212/ 1068.

(C) Prescribed Authority vide order dated 05.12.1984 declared 5331.78 sq. meters of total land held by Nasir as surplus.

(D) Surplus land was drawn from two plots, i.e., 222 (area 3439.95 sq. meters) and 251A (area 1891.83 sq. meters)

(E) Notification under Section 10(1) was issued on 09.05.1985 and under Section 10(3) on 27.03.1991.

(F) Notification under Section 10(5) was issued on 04.06.1993 declaring following area as surplus and directed Nasir son of Rahim Bux to handover possession thereof to Prescribed Authority or its authorized agent:

		Plot No. 				Area 
 
		222				3439.95 sq. meters
 
		251A				1891.83 sq. meters
 

(G) Acquisition notification was issued under Section 4(1) read of Section 17(1) of Act, 1894 published in U.P. Gazette (Extraordinary) dated 14.08.1992 wherein 0.42 acres of plot No. 251(M) in Village Mau, Tehsil and District Moradabad, besides other land, was sought to be acquired. Copy of said notification is Annexure-8 to review petition. We find that a total 22.005 acres of land was proposed to be acquired at Village Mau, possession whereof was taken vide possession certificate dated 04.03.1994, Land Acquisition Amin handed over possession of 17.345 acres of land to MDA which included plot No. 251(M) area 0.42 acres.

(H) Plot No. 251 area 1891.83 sq. meters was transferred to MDA by State Government vide order dated 04.06.1987 being surplus land under Act, 1976 and 0.42 acres subsequently was acquired under Act, 1894, hence entire disputed land came to be transferred to MDA upto 04.03.1994 and subsequent sale deeds relied by petitioners, therefore, are bogus and fake.

18. Petitioners have disputed the factum regarding alleged transfer of surplus land of Plot No. 251 to MDA. It is said that in respect of alleged surplus land, State Government considered matter and vide order dated 22.12.1997 found that there was no notice served upon Nasir since he had already died and, therefore, Prescribed Authority's order dated 05.12.1984 was erroneous and same was cancelled, and the matter was remanded to Prescribed Authority. Thereafter Prescribed Authority vide order dated 30.03.1998 again declared 5041.78 sq. meters of land surplus comprising plots No. 222 area 3439.95 sq. meters and 251A area 1601.83 sq. meters. Thereagainst appeal, i.e., R.A. No. 8 of 1998 was filed before District Judge, Moradabad which held that proceedings have abated in view of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as "Act, 1999") since land declared surplus vide order dated 30.03.1998 was not taken in possession by State under the provisions of Act, 1976. Prescribed Authority consequently passed order dated 29.05.2001, which reads as under:

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uxj Hkwfe ¼vf/kdre lhek ,oa fofu;eu½ fulu vf/kfu;e] 1999 dh /kkjk 4 lifBr /kk&3&1 ¼d½ ds varxZr fdlh U;k;ky; vFkok izkf/kdkjh ds le{k fopkjk/khu ,sls izdj.k ftuesa /kkjk 10 ¼3½ ds mijkUr /kkjk 10 ¼5½ ds varxZr dCts dh dk;Zokgh ugha gqbZ gSA fujflr fd;s tkus ;ksX; gSA pwWafd iz'uxr okn es /kkjk 8 ¼4½ ds vkns'k gksus dh dk;Zokgh visf{kr gSA vr% ;g okn fujflr ¼vcSV½ fd;s tkus ;ksX; gSA mDr vk/kkj Ikj i=koyh fu{ksi dh tkrh gSA**

"Order

The cases pending before any court or authority under section 4 read with section 3-1(a) of the Urban Land (Ceiling And Regulation) Repeal Act, 1999 in which possession proceedings have still not been conducted u/s 10 (5) following the proceedings u/s 10 (3) , are liable to abate. An order u/s 8 (4) is required to be passed in the case in question. Hence, the instant case is liable to be abated. On the aforesaid ground, the file stands disposed of."

(English translation by Court)

19. Thereafter Prescribed Authority sent a letter dated 06.10.2001 to Tehsildar Sadar, Moradabad stating that ceiling proceedings have been closed, having abated in view of appellate order dated dated 29.11.1999 passed by District Judge, therefore, in Revenue record State Government's name should be deleted and name of Nasir son of Rahim Bux be restored.

20. When MDA, i.e., review-applicant in its turn came to file rejoinder affidavit, it realized that alleged surplus land was never transferred to it. It has said in para 7 as under:

"7. ....In the ceiling case no. 111/2215/1668 State Vs. Nasir the competent authority under the ceiling act vide order dated 5.12.1984 declared the land measuring 1891.83 sq. meter of Gata No. 251, as surplus. Thereafter the notice u/s 10(3) of the ceiling act was published on 27.03.2091 and the notice u/s 10(5) of the ceiling act was published on 4.6.1993. Thus, the land measuring 1891.83 was recorded in the name of the State Government however, the possession of this land could not come to the Development Authority. The District Judge, Moradabad vide his order dated 29.11.1999 declared the proceeding under the ceiling act abated and directed the competent authority under the ceiling act to act in accordance with law. However, thereafter because of the repeal act, 1999 coming into force the declaration of the excess land was not found in order and the competent authority under the ceiling act vide its order dated 29.5.2001 this land measuring 1891.83 sq. meter was released in the favour of the owner of this land. And after deleting the name of the State Government the name of the tenure holder Sri Nasir son of Rahim Bux was recorded in the revenue record. It is submitted that over the land coming to the Development Authority under the land Acquisition Act and the Ceiling Act the "Ashiyana Scheme Phase-I" of the Development Authority had been developed over the land in question and presently the said scheme is fully operational."

(emphasis added)

21. It is admitted in para 8 of rejoinder affidavit that alleged surplus land 1891.83 sq. meters of Gata No. 251 was subsequently released from ceiling but review-applicant has utilized said land for its development activities.

22. Sri Satish Chaturvedi, learned counsel appearing for review-applicant, at the outset, submitted that having some mistake in respect of facts that land declared surplus was released inasmuch as earlier order of Prescribed Authority was set aside and subsequent proceedings abated, there was some confusion with MDA officials on account whereof taking a false plea before Supreme Court, appeal was filed. He admits that only 0.42 acres of land of plot No. 251A was acquired by MDA and remaining land in aforesaid plot though has been utilized by MDA but ownership remain therewith with petitioners and three others, namely, Rajesh Kumr, Anil Kumar Singh and Sudhir Singh, hence, he is not in a position to press this review application. He expressed apology on the part of review-applicant for filing review application on incorrect facts.

23. We are really surprised that a statutory authority like MDA has not examined matter carefully though it had the advantage of assistance of even a Law Officer. In a clandestine manner MDA filed appeal before Supreme Court on incorrect facts and persuaded Court to grant an interim order while permitting Review-Applicant to pursue remedy of appeal before this Court. Before this Court also they filed review application on incorrect facts but when they were shown mirror by petitioners by placing all relevant documents in the counter affidavit filed in this Review Application, learned counsel appearing for Review-Applicant find no answer but to admits that earlier order of Prescribed Authority was set side in appeal and subsequently ceiling proceedings abated, hence 1891.83 sq. meters land of Gata No. 251(M) stood released to respective owners including petitioners and others.

24. Considering this laxity and falsity with which appeal was filed before Supreme Court and Review Application has been filed before this Court, which has not been disputed by learned counsel appearing for Review-Applicant before this Court, today, when Review Application came up for hearing, we find that Review-Applicant is guilty of filing false affidavit and has prolonged the matter in a most unwarranted, illegal and negligent manner. Moreover it has also dared to conceal material facts and stake its claim on incomplete and incorrect facts which amounts to gross misuse and abuse of process of law.

25. Hence this application is dismissed with cost of Rs. 50,000/-.

Order Date :-02.04.2019

AK