Ramveer And Another vs State Of U.P. And 6 Others
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Allahabad High Court

Ramveer And Another vs State Of U.P. And 6 Others on 5 February, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:18703
 
Judgement reserved on 24.1.2024 
 
Judgement delivered on 5.2.2024
 
Court No. - 49
 

 
Case :- WRIT - B No. - 305 of 2020
 
Petitioner :- Ramveer And Another
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Saurabh Basu
 
Counsel for Respondent :- C.S.C.,Abhishek Kumar Chaubey,Sunil Kumar
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Sri Anil Sharma, learned Senior Counsel assisted by Shri Saurabh Basu, learned counsel for the petitioners. Shri Anoop Trivedi, learned Senior Counsel assisted by Shri Abhishek Kumar Chaubey and Sri Vibhu Rai, learned counsel for for the respondent No.7 and Shri Raj Kumar Singh, learned Standing Counsel for the State respondents.

2. Brief facts of the case are that plot No.353/2, 354, 355/2, 398/2, 399/2, 400/2 situated in village Sadullapur @ Modelpur, Tehsil-Jewar, District Gautambudhpur were recorded in the name of petitioners' father Shiv Dayal @ Shiv Lal in 1347 Fasli according to petitioners but according to State as well as private respondent No.7 it was recorded in the name of Zamindar Chaudhary Rajendra Singh and the same was given on lease to father of petitioner no.1 Shiv Dayal @ Shiv Lal had two sons Ramveer & Shahveer. Petitioner No.2 purchased the share of Shahveer accordingly petitioner Nos.1 & 2 are contesting the proceedings. Consolidation proceeding intervened in the village by way of notification issued under section 4 of U.P. Consolidation of Holdings Act,1953 on 24.2.1966 and village was denotified by way of notification issued under section 52 of U.P. Consolidation of Holdings Act, 1953 on 23.12.1967. In proceeding under Section-122 B of U.P. Z.A. & L.R. Act,1950 an order for ejectment & damages was passed on 31.1.1983 against petitioner No.1 in respect to plot No.215 area 15 Biswa which was affirmed in appeal. Land acquisition proceedings was initiated vide notification dated 19.3.1947 for construction of Jewar Khurja Highway but in respect to petitioner's plot, the requisition proceeding as provided under Section- 35 & 36 of Land Acquisition Act took place and after completion of construction of Jewar-Khurja Highway, land of different tenure holders were returned back to the respective tenure holders accordingly the name of respective tenure holders were recorded but in certain cases the names were not recorded hence on the basis of the report of the authorities, District Magistrate vide order dated 26.5.1988 directed to record the name of tenure holders in respect to plot No- 241 (New No.86M) area 0-0-10., plot No-246 (New No-82M), 250 (New No-82M), plor No.305 ( New No.186M) area 0-15-0, plot No.314 ( New No.186 M) area 0-5-0, Plot No- 399 (New No- 215M) area 0-15-0 & Plot No- 312 (New No-186M) area 0-8-0 Total area 2-15-10. Respondent No.7 claims to be owner of plot No.221 & 222. A Civil Suit No.6 of 2016 for decree of Injunction impleading petitioners as defendants in respect to her plot No.221 is pending before Civil Court. Respondent No. 7 filed an application under Section 33/39 of U.P. Land Revenue Act, 1901 to correct the entry of plot No.215 by recording the same as road in the revenue record. The aforementioned application filed by respondent No.7 was registered as Case No.4/2016, under Section 33/39 of the U.P. Land Revenue Act. A report dated 18.1.2016 was submitted in the aforementioned proceeding. Respondent No.5, Sub Divisional Magistrate heard the aforementioned proceeding under section 33/39 of the U.P. Land Revenue Act vide order dated 8.7.2016 rejected the application under section 33/39 filed by respondent No.7 on the ground that plot in dispute is Bhumidhari plot of the tenure holder as such the entry cannot be expunged in the summary proceeding rather parties should avail remedy before regular court. Against the order dated 8.7.2016, respondent no.7 filed revision under section 219 of the UP. Land Revenue Act before the Commissioner. The aforementioned revision was registered as revision No.57 of 2015-16 and the same was heard by the Additional Commissioner, Meerut Division, Meerut. Respondent No.3/Additional Commissioner vide order dated 23.9.2016 allowed the revision, set aside the order dated 8.7.2016 and expunged the entry in respect to plot no.215. Petitioner challenged the order dated 23.9.2016 before the Board of Revenue under section 219 of the U.P. Land Revenue Act which was registered as revision No.2356/2016. Respondent No.2/ Board of Revenue vide judgment dated 10.1.2020 dismissed the revision. Hence this writ petition on behalf of petitioner challenging the orders dated 10.1.2020 passed by the respondent No.2 and 23.9.2016 passed by respondent No.3.

3. This Court vide order dated 17.3.2020 entertained the matter and granted interim protection for maintaining status quo in respect to the property in dispute.

4. In pursuance of the order dated 17.3.2020, private respondent No.7 as well as Standing Counsel for the State-respondents have filed their counter affidavit and petitioners have filed their rejoinder affidavit.

5. Learned Senior Counsel for the petitioner submitted that proceeding initiated by private respondent no.7 under section 33/39 of the U.P. Land Revenue Act in respect to the entry of the plot in dispute was not maintainable and the Sub Divisional Officer has rightly rejected the proceeding under section 33/39 of the U.P. Land Revenue Act but the order has been illegally set aside in revision by Additional Commissioner on misconceived ground. He further submitted that the land of the petitioners were requisitioned by the government which was temporary acquisition as provided under section 35-36 of the Land Acquisition Act, 1894 as such there is no question of correction of entry of plot no.215 in exercise of jurisdiction under section 33/39 of the U.P. Land Revenue Act. He further submitted that in view of temporary acquisition by the Central Government under Land Acquisition Act,1894, the land remain vested as road with Public Works Department, therefore, the entry of road made during the consolidation operation will not deprive the petitioners to be recorded over the plot in question in view of the provision contained under sections 35 and 36 of the Land Acquisition Act. He further submitted that respondent No.7 has no locus to initiate proceeding under section 33/39 of the Land Revenue Act. He further submitted that Sub Divisional Officer has rightly rejected the application/ proceeding under section 33/39 of the U.P. Land Revenue Act. He further submitted that father of petitioner no.1 was recorded tenure holder of the plot in question since 1938 as such the entry of the plot in question cannot be expunged in the summary proceedings. He further submitted that Hon'ble Apex Court in the case reported in 1995 (supplement-II) SCC 708, State of Bihar Vs. Amit Kumar Gupta has held that the land requires to be returned to the original tenure holder even if the land has not been returned within period of three years. He submitted that the impugned orders be set aside and order of the Sub Divisional Officer dated 8.7.2016 be affirmed. He further placed judgment of this Court passed in Misc. Single No.20157 of 2017, Ritesh Motwani And Another Versus State of U.P. and others dated 30.8.2017 on the point of maintainability of proceeding under section 33/39 of Land Revenue Act, 1901

6. On the other hand Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Abhishek Kumar Chaubey and Sri Vibhu Rai, learned counsel for respondent No.7 submitted that plot no.399 was fibercated in two parts i.e. plot No.399/1 area 1 Bigha 2 Biswa and 339/2 area 15 Biswa. He further submitted notification under section 4 of the U.P. Consolidation of Holdings Act took place in the village on 24.2.1966 and notification under section 52 of the U.P. Consolidation of Holdings Act took place on 23.12.1967. He further submitted that old plot No.399/2 (new plot no.215) was recorded as road in the revenue record during consolidation operations. He further submitted that proceedings under section 122-B of the U.P. Z.A & L.R Act was initiated in respect to the plot in question and an order for ejectment and damages was passed against the petitioners and the order of ejectment/ damages has been confirmed in Appeal/Revision which have attained finality. He further submitted that old plot no.399 was recorded in the name of Chaudhary Rajendra Singh in the Khatauni 1356 Fasli. He further submitted that respondent No.7 has her land in front of main Highway. He further submitted that respondent No.7 has a godown of Gas Cylinder in her plot No.221 but petitioners are illegally encroaching upon the land which has been vested in the Government. He further placed the village map of the plot in question in order to demonstrate that plot no.215 is road and petitioners plot no.221 & 222 are adjacent to plot no.215, as such there is no existence of petitioners between plot no.215 which is recorded as road and plot No.221 & 222 belonging to respondent No.7. He further submitted that application under section 33/39 of the U.P. Land Revenue Act has been illegally rejected by the Sub Divisional Officer, but in revision, the order of Sub Divisional Officer has been rightly set aside after examination of each and every aspect of the case as well as considering the revenue entry of the plot in dispute as well as other evidence on record. He submitted that writ petition arises out of summary proceedings under section 33/39 of the U.P. Land Revenue Act as such the same is not maintainable and petitioners should file Suit for declaration of their right. He placed reliance upon judgment of this Court reported in 2017 (137) R.D.114- Awadhesh Singh Vs. Additional Commissioner and others in order to demonstrate writ petition arising out of summary proceeding is not maintainable.

7. Sri Raj Kumar Singh, learned Standing Counsel on behalf of State respondents also submitted that plot No.215 was recorded as 'Sarak' during consolidation operation as well as in the subsequent record also as such the jurisdiction under Section 33/39 of U.P. Land Revenue Act, 1901 has been rightly exercised in the revisional exercise of jurisdiction which requires no interference by this Court.

8. I have considered the arguments advanced by the learned counsel for the parties and perused the record.

9. There is no dispute about the fact that District Magistrate vide order dated 26.5.1988 ordered to record the name of the tenure holders in respect to plot No.399 new plot No.215M areas 7 Biswa in view of the provisions contained under Sections 35 and 36 of the Land Acquisition Act, 1984. There is also no dispute about the fact that proceeding under section 33/39 of the U.P. Land Revenue Act was initiated at the instance of respondent No.7, which was rejected on 8.07.2016 by Sub Divisional Officer but in the revision the order dated 8.7.2016 was set aside on 23.09.2016. There is also no dispute about the fact that the revision filed by the petitioners was dismissed by the Board of Revenue vide order dated 10.01.2020. There is also no dispute about the fact that Suit No.7 of 2016 filed by the respondent No.7 impleading the petitioners as defendants for decree of injunction in respect of plot No.221 area 0.2310 hectare is pending in the Civil Court.

10. In order to appreciate the controversy involved in the matter, perusal of the relevant portion of the order passed by the Sub Divisional Officer will be necessary, which is as under:-

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??? ??????? ??????? ??? ????????? ?? ???? ?? ?????? ?????? ???????? ????????? ???? ???????? ???? 33/39 ?????????? ?????? 22.12.2015 ?????? ???? ???? ????? ???

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?????? 8.7.2016

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11. Perusal of the order of the Sub Divisional Officer demonstrates that plot No.215 was the Bhumidhari plot of the tenure holders and the same was acquired under the Land Acquisition Act, 1894 but the plot in dispute was requisitioned in view of the provision contained under Sections 35 and 36 of the Land Acquisition Act, 1894, as such, the tenure holders were ordered to be recorded over the requisitioned plot. The order further demonstrate that summary proceedings under section 33/39 of the U.P. Land Revenue Act is not maintainable to expunge the long standing entry rather parties should approach the regular court for redressal of their grievances, if any. The Additional Commissioner while setting aside the order dated 8.07.2016 has held that plot No.215 area 15 biswa was recorded as road during consolidation operation as such the entry of private tenure holder cannot continue over plot No.215. The Additional Commissioner has failed to notice that since before the 1356 Fasli, the land was recorded in the name of tenure holders, as such, the entry of the tenure holders cannot be expunged in the summary proceeding under Section 33/39 of the U.P. Land Revenue Act on misconceived ground. It is also material that basis of the orders dated 26.5.1988 is that there was temporary acquisition in respect to plot in question as provided under Section 35 & 36 of Land Acquisition Act 1894 as such entry of "Sarak" in respect of plot in question was expunged. Since the entry of "Sarak" was found illegal as such the order of eviction & damages passed under section-122B of U.P.Z.A & L.R.Act 1950 against the petitioner No.1 will not deprive the petitioners to be recorded over the plot in dispute.

12. The initiation of summary proceeding under section 33/39 of the U.P. Land Revenue Act at the instance of the respondent No.7 after 27 years from passing of order dated 26.5.1988 is abuse of process of law. It is also material that after dismissal of the proceedings under Section 33/39 of the Land Revenue Act, further filing of the revision under Section 219 by the respondent No.7 was illegally entertained by the Commissioner as State can challenge the order passed under Section 33/39 of the U.P. Land Revenue Act before the Commissioner in revision but Additional Commissioner has illegally allowed the revision filed by the private respondent no.7 expunging the entry of the plot in question.

13. It is also material that respondent No.7 has already filed her suit for injunction against the petitioners in respect of her right as such the filing of application under section 33/39 of U.P. Land Revenue Act as well as revision at the instance of respondent No.7 is abuse of process of law.

14. Considering the entire facts and circumstances of the case as well as nature of the entry of the plot in question, since before 1347 fasli the impugned orders dated 10.01.2020 passed by respondent No.2 and 23.9.2016 passed by respondent No.3 are liable to be set aside and the same are hereby set aside.

15. The writ petition stands allowed.

16. No order as to costs.

Order Date :- 5.2.2024

PS*/SFH