M/S Triveni Engineering And ... vs State Of U.P. And 3 Ors.
2019 Latest Caselaw 338 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 12
 

 
Case :- WRIT - C No. - 69676 of 2013
 

 
Petitioner :- M/S Triveni Engineering And Industrial Limited
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Diptiman Singh
 
Counsel for Respondent :- C.S.C.,Rajesh Yadav
 

 
Hon'ble Vivek Varma,J.

The present petition has been filed against the order dated 11.11.2013 passed by the Addl. Collector (Administration), Saharanpur (Annexure-1 to the writ petition), exercising revisional powers under Section 122-B (4-A) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act'), by which he had rejected the revision of the petitioner, consequently upholding the order dated 29.08.2012 passed by the Assistant Collector/Tehsildar Deoband, Saharanpur (Annexure-4 to the writ petition), exercising powers under Section 122-B of the Act has directed the eviction of the petitioner from Plot No. 231-M area 1-10-0 Bigha situate in village Deewalhedi, Pargana Nagal, Tehsil Deoband, District Saharanpur and further imposing a sum of Rs. 1,38,000/- as damages for wrongful occupation of the land in question. The petitioner moved an application to recall the order dated 29.08.2012, which was rejected by order dated 21.11.2012.

Both the orders dated 21.11.2012 and 29.08.2012 were assailed in Revision under Section 122-B (4-A ) of the Act, which was ultimately dismissed on 11.11.2013.

I have heard Sri Diptiman Singh, learned counsel for the petitioner; learned Standing Counsel representing the State respondents; and perused the record.

The facts involved in the instant writ petition are that the petitioner is a Company incorporated under the Companies Act, 1956 and is engaged in the manufacture of Crystal Sugar through vacuum pan process. The petitioner acquires Sugarcane from such area which are reserved for it by the order of the Cane Commissioner passed under the provisions of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and the Rules framed there-under. The Sugarcane purchased by the petitioner is required to be weighed and for the said purpose, purchase centers are setup in the villages for the convenience of the cane growers. The petitioner uses land of farmers with their permission for setting up the Cane Weighing Centres/Weigh Bridge for the crushing season only which falls between November to mid April.

It is the specific case of the petitioner that it had setup the Cane Weighing Centre on Gata No. 231 area 1-10-0 Bigha situate at village Deewalhedi, Tehsil Deoband, District Saharanpur. The center was setup over an area of 8 Biswa of the plot as it was for a temporary purpose and was established with the permission of Beliram and Survali Singh, who were the bhumidhars of the aforementioned plot. The Gata No. 231 did not belong to the Gaon Sabha.

It further transpires from the record that Lekhpal of the village concerned acting on the enqiry ordered by the Tehsildar and on the complaints of the villagers and the erstwhile Pradhan, submitted a report dated 22.12.2009 wherein it was indicated that the petitioner had setup a Cane Centre (without permission) on Plot No. 231-M area 1-10-0 Bigha which plot belongs to gaon sabha property, to be utilized for play ground, Primary Health Centre etc. and thus resulting in loss to the Gaon Sabha to the tune of Rs. 1,38,000/- and accordingly recommended action against the petitioner under Section 122-B of the Act. The report dated 22.12.2009 of the Lekhpal together with the statement of the Lekhpal concerned recorded on 08.12.2010 and 28.07.2010 have been brought on record by way of a supplementary affidavit dated 02.01.2014 pursuant to the order of the Court dated 18.12.2013.

Proceeding under Section 122-B of the Act was initiated against the petitioner, which came to be registered as Case No. 55/11 of 2010. Pursuant to the registration of Case under Section 122-B, a notice on Form 49-A read with Rule 115-C of the U.P. Zamindari Abolition and Land Reforms Rules (hereinafter referred as the 'Rules') was issued against the petitioner requiring it to appear before the Tehsildar/ Assistant Collector, Tehsil Deoband.

The petitioner filed its objections to the notice dated 02.01.2010 alleging interalia that the notice is malafide and based on incorrect facts inasmuch as the petitioner had been shown to be in illegal occupation of Plot No. 231-M area 1-10-0 Bigha whereas the petitioner in fact in the month of September, 2009 after taking permission from the villagers and the manager of the school had setup the Cane Centre on 8 Biswas area of Plot No. 231-M. The Centre had been set up temporarily for the benefit of the villagers and that it would be removed after the end of the crushing season. The land was not Gaon Sabha land and no damage had been caused to the land of the Gaon Sabha, hence, the Notice was defective and was liable to be cancelled.

The Assistant Collector/Tehsildar, Deoband, District Saharanpur decided the proceeding under Section 122-B of the Act against the petitioner, exparte recording the fact that the petitioner had been granted adequate opportunity to lead evidence and on failure of the petitioner to lead any evidence, it had to be presumed that the petitioner had encroached upon the Gaon Sabha land reserved for play ground and primary health centre etc. The report of the Lekhpal dated 22.12.2009 was believed by the Tehsildar. Accordingly, the Assistant Collector/Tehsildar, Deoband proceeded to pass order for eviction of the petitioner from Plot No. 231-M area 1-10-0 Bigha on the strength of the report of Lekhpal dated 22.12.2009 and he also imposed penalty of Rs. 1,38,000/- by way of damages to be realised from him. The exparte order dated 29.08.2012 was sought to be recalled by the petitioner unsuccessfully.

The revision of the petitioner under Section 122-B (4-A) of the Act had been rejected by the Addl. Collector (Administration), Saharanpur holding that the petitioner in its objections against the notice 49-A dated 02.01.2010 had admitted that it had encroached upon an area 8 Biswa of Plot No. 231 (Area 1-10-0) after taking consent from villagers and the manager of the school. Further, the petitioner on the receipt of the notice 49-A was well aware that it had encroached upon the field and Primary Health Centre land belonging to the Gaon Sabha. The petitioner never denied that it was not in possession over the play ground, Primary Health Centre and that the averment of the petitioner that it had not been granted any opportunity of hearing was utterly false. Merely, mentioning Plot No. 231 instead of Plot No. 239 in the notice 49-A would not invalidate the notice.

The counsel for the petitioner vehemently argued that the report of the Lekhpal dated 22.12.2009 which had been brought on record by way of supplementary sffidavit clearly showed that the Report had been submitted in respect of Plot No.231M area 1-10-0 and the proceedings U/s 122-B of the Act were initiated on that basis. The petitioner had filed its objections in respect of the Notice 49-A clearly asserting that Plot No.231M was not Gaon Sabha Land but was land belonging to Baliram and Survai Singh and as such when the land did not belong to Gaon Sabha, no proceedings U/s 122-B of the Act could be initiated in respect of the said land. The thrust of the arguments of the counsel for the petitioner was that the Notice in Form 49-A was admittedly defective and proceedings initiated in pursuance thereto are void-ab-initio and liable to be set aside.

Further, learned counsel for the petitioner submitted that when the Notice was erroneous as has been admitted in paragraphs 12, 13 and 22 of the counter affidavit, the Notice itself become bad in law, and therefore, the orders impugned in the writ petition are required to be set aside.

Per contra, the learned Standing Counsel has attempted to support the impugned orders on the ground that both the Assistant Collector/Tehsildar Deoband as also the Revisional Authority i.e. the Additional Collector (Administration), Saharanpur have recorded findings of fact about the encroachment by the petitioner over Gaon Sabha land and as such the impugned orders do not suffer from any infirmity warranting any interference by the Court. The imposition of damages of Rs.1,38,000/- to be realized from the petitioner, is just and proper considering the period of the encroachment by the petitioner over the land for the last 20 years.

In order to test the veracity of the arguments of the parties, it is necessary to dwell into the importance of the Notice in Form 49-A which is required to be served upon a person against whom action U/s 122-B of the Act is proposed.

The provisions regarding Show Cause Notice is dealt with in Sub-Section (2) to (4) of Section 122-B of the Act. The Notice to the occupant is required to be issued in the prescribed Form i.e. Z.A. Form No.49-A. The Notice under Z.A. Form 49-A is issued under Rule 115-D of the U.P.Z.A. & L.R. Rules, 1952 and must comply with the requirements of the said Rule. For ready reference, Rule 115-D of the Rules is extracted below:

[115-D. (1) Where the Land Management Committee or the local authority as the case may be fails to take action in accordance with Section 122-B the Collector shall---

(a) On an application of the Chairman, Member or Secretary of the Committee; or

(b) On a report made by the Lekhpal under Sub-rule (3) of rule 115-C; or

(c) On the report of the local authority concerned or its official referred to in the proviso to sub-rule (5) of rule 115-C; or

(d) On facts otherwise coming to his notice;

Call upon the person concerned through notice in Z.A. Form 49-A to refrain from causing damage or misappropriation, to repair the damage or make good the loss or remove wrongful occupation and to pay damages or to do or refrain from doing any other thing as the exigencies of the situation may demand or show cause against it in such time as not exceeding fifteen days as may be specified in the notice.

(2) Before issuing a notice under sub-rule (1), the Collector may make such inquiry as he deems proper and may obtain information on the following points---

(a) full description of damage or misappropriation caused or the wrongful occupation made, with details of village, mohalla or ward, plot number, area, boundary, property damaged or misappropriated and market value thereof;

(b) full address along with father's name of the person responsible for the damage, misappropriation or wrongful occupation;

(c) period of wrongful occupation, damage or misappropriation, class of soil of the plot numbers involved and hereditary rates applicable to them; and

(d) Value of the property damaged or misappropriation calculated at the prevailing market rate in the locality.]

The court has examined the Notice in Z.A. Form 49-A in the light of the mandatory requirement of law as laid down by Rule 115-D of the Rules as also in the light of the evidence led by the respective parties and finds that the initial Report dated 22.12.2009 submitted by the Lekhpal concerned brought on record as Annexure SA-1 clearly mentions the Plot No. 231M area 1-10-0 Bigha. The proceeding under Section 122 B against the petitioner has been initiated on the strength of this Report on 23.12.2009. The Notice in Form-49A issued under Rule 115 D of the Rules dated 2.1.2010 (Annexure-2 to the writ petition) also clearly mentions Plot No. 231 M area 1-10-0 Bigha. Thus, it is more than apparent that the proceeding under Section 122-B of the Act was sought to be initiated against the petitioner in respect of Plot No. 231M. The respondents at no point of time during the pendency of the proceeding have attempted to correct the discrepancy alleged by them either by withdrawing the Notice dated 02.01.2010 or by issuing a fresh Notice. The petitioner filed its objections to the said Notice in Z.A. Form 49-A admitting that it had set up its Cane Centre on an area of 8 Biswa of Plot No. 231 M after taking consent of the land owners and the Manager of the School. The petitioner also filed copy of the Khasra of Plot No. 231 to demonstrate that the land on which the Cane Centre had been set up, was not the Gaon Sabha land. The objections were filed on 10.3.2010 as is evident from Annexure-3 to the writ petition. The Court finds that the Statement of the Lekhpal concerned was got recorded on 8.2.2010 and 28.7.2010 (subsequent to filing of Objections by the petitioner to the Notice in Z.A. Form 49-A) wherein a different i.e. Plot No. 239 area 3-10-0 has been mentioned. The Standing Counsel on this basis submits that in the Notice in Z.A. Form 49-A the Plot No. 231M was incorrectly mentioned and in fact the allegations of encroachment against the petitioner was in respect of Plot No. 239. The authorities below have proceeded on this assumption and the Notice cannot be invalidated on account of this discrepancy.

The Court has given its anxious consideration to the aforesaid submission of the learned Standing Counsel. The submission is liable to be rejected in as much as Notice in Z.A. Form 49-A forms the basis of the initiation of the proceedings under Section 122-B. The Notice is required to comply with requirements laid down in Rule 115-D of the Rules particularly Rules 115-D 2(a) wherein full description of damages or misappropriation caused or wrongful occupation made, with details of the village, mohalla or ward, plot number area, boundary, property damages or misappropriate and market value thereof is required to be disclosed. The submission of the learned Standing Counsel that the Notice was intended in respect of Plot No. 239M cannot be accepted as admittedly in the Report and Notice in Form 49A the Plot No. mentioned is 231M. No effort was made by the Authorities to rectify the discrepancy during the pendency of the proceedings and as such the Notice is to be read on its face value. The Notice is admitted to be defective by the Authorities as is evident from Paragraphs No. 12, 13 and 22 of the Counter Affidavit sworn by the Tehsildar, Deoband, Saharanpur, which are extracted below:-

"12. That the contents of paragraph no. 16 of the writ petition are not admitted as stated. It is stated that the case has been filed in respect of Gata No. 239M, which is recorded as playground and in the name of Primary Health Centre. Due to clerical mistake, in Notice 49-ka, Gata No. 231M has been written in place of Gata No. 239M and in other papers, Gata No. 239M is mentioned.

13. That the contents of paragraph no. 17 of the writ petition are not admitted as stated. It is stated that the case has been filed in respect of Gata No. 239M, which is recorded as playground and in the name of Primary Health Centre. Due to Clerical mistake, 231M has been written in place of 239M and in other papers and documents, 239M is mentioned. The petitioners are trying to take benefit of the said mistake. From the above facts, it is clear that the dispute relates to Gata No. 239M and not of Gata No. 231M.

22. That the contents of paragraph nos. 33 to 35 of the writ petition are not admitted as stated. It is stated that the Lekhpal has submitted his report, in which he has shown Gata No. 239M and only in the Notice 49-Ka, Gata No. 231M in place of Gata No. 239 M is written, whereas the dispute relates to Gata No. 239M and the case was decided in respect of Gata No. 239M."

The petitioner in its Objections has clearly stated that he has set up Cane Centre on Plot No. 231 M which does not belong to the Gaon Sabha. The Authorities below have not recorded any finding that the petitioner had encroached over Plot No. 239M or that its possession was not over the Plot No. 231M. In fact the Authorities, particularly, the Revisional Authority has proceeded on assumption of the admission of the petitioner regarding his possession over 8 biswa area of Plot No. 231 M without recording any finding that the Plot No. 231M was infact Gaon Sabha Land. Admittedly, proceeding under Section 122 B of the Act cannot be initiated in respect of non Gaon Sabha land. In such circumstances, on the own showing of the Respondents Authorities, the proceeding initiated against the petitioner under Section 122-B of the Act on the basis of a Defective Notice cannot be sustained and the proceeding so initiated are liable to be quashed and are hereby quashed.

Consequently, the writ petition succeeds and is allowed. The impugned orders dated 11.11.2013 (Annexure No. 1) passed by the Addl. Collector (Administration), Saharanpur (Respondent No. 2) in Revision No. 27/2012-13 as well as the orders dated 21.11.2012 and 29.8.2012 (Annexure Nos. 4 & 6) passed by the Assistant Collector/Tehsildar, Deoband, Saharanpur in Case No.55 of 2010 are set aside.

The amount of Rs. 50,000/- deposited with the Respondent no. 2, pursuant to the interim order of the Court dated 10.1.2014 is to be refunded to the petitioner within six weeks from the date of production of a certified copy of this order before the Respondent no. 2.

There is no order as to costs.

Order Date :- 1.3.2019

Lbm/-