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2005 DIGILAW 335 (ALL)

Om Prakash v. State of U. P.

2005-02-23

ARUN TANDON

body2005
ARUN TENDON, J. ( 1 ) HEARD Sri S. N. Verma senior advocate, assisted by Sri Sharad Malviya, on behalf of the petitioner, Sri S. K. Saxena on behalf of respondent No. 3, and Sri S. M. A. Kazmi, Chief standing Counsel on behalf of respondent Nos. 1 and 2. ( 2 ) PETITIONERS, who are two in numbers, claim themselves to be the owners and in possession of land covered by Khasra Nos. 2946/. 08, 2947/. 41, 2948/84, 2949/,89, 2950/. 14, 2951/. 31, 2952. 43, 2953/1. 02, 2954/. 82, 2955/. 03, 2956/1. 09, 2957/. 16, 2960/. 29, 2961/. 46, 2962/. 37, 2963/. 46, 2964/. 68 and 2965/. 35, as mentioned in paragraph 2 of the writ petition. It is further claimed that the name of the petitioners are also recorded in the relevant revenue records in respect of the aforesaid" land. The petitioners, however, in Order to establish their title filed a suit for declaration under Section 229b of the U. P. Zamindari Abolition and Land Reforms Act, which was registered as Suit No. 34 of 1984-85. The suit as filed by the petitioners was decreed ,by the trial court by means of the Order dated 21st June, 1985 and the petitioners were declared to be the owners of the land in question. ( 3 ) THE Gaon Sabha of village Birjapur, tehsil and district Mathura, not being satisfied by the aforesaid judgment of the trial court, preferred an appeal before the Commissioner, Agra division, Agra, which was registered as Appeal No. 100 of 1984-85. The appeal so preferred by the Gaon Sabha Birjapur, Mathura was allowed by the Additional Commissioner vide Order dated 7. 7. 1987 and the judgment and decree passed in favour of the petitioners by the sub-Divisional Officer was reversed. ( 4 ) ACCORDING to petitioners, the said judgment and decree passed in the appeal was ex parte and therefore they moved an application for setting aside the said ex parte order. On the application so filed, the First Appellate Court passed an Order of status quo on 16. 7. 1990. During the pendency of the aforesaid proceedings, the State Government in exercise of powers under section 117 (6) of the U. P. Zamindari Abolition and Land Reforms Act, 1951, issued a notification dated 10. 8. 1990 resuming the land from the Gaon Sabha and transferring the same to the Mathura Vrindavan Development Authority. 7. 1990. During the pendency of the aforesaid proceedings, the State Government in exercise of powers under section 117 (6) of the U. P. Zamindari Abolition and Land Reforms Act, 1951, issued a notification dated 10. 8. 1990 resuming the land from the Gaon Sabha and transferring the same to the Mathura Vrindavan Development Authority. It is against this notification of the State government dated 10. 8. 1990. the present writ petition has been filed before this Court. ( 5 ) THE Honble High Court, while entertaining the present writ petition, on 9. 10. 1990 stayed the operation of the impugned notification dated 10. 8. 1990. However, the writ petition was dismissed as infructuous by this Court on 6th January, 1997, The said Order was recalled as it was wrongly transcribed in the present writ petition and the writ petition was restored to its original number. During the pendency of the present writ petition following developments have taken place : (a) The Additional Commissioner by means of Order dated 22. 11. 1990 rejected the application of the petitioner for setting aside the ex parte judgment and decree passed in the appeal. (b) Feeling aggrieved by the said order, the petitioners preferred a revision against the Order passed on the recall application, being Revision No. 33 of 1990-91 and second appeal against e x parte judgment arid decree passed by the Additional Commissioner, which was registered as second Appeal No. 32 of 1990-91. Both the aforesaid proceedings were initiated before the board of Revenue. (c) The Board of Revenue by means of judgment and Order dated 28. 8. 2003 has allowed the second Appeal No. 32 of 1990-91 and has set aside the judgment and Order of the first appellate court. As a consequence thereto the judgment and decree passed by the trial court declaring the petitioners to be the owners of the land in question has been maintained. (d) The Board of Revenue thereafter proceeded to dismiss the revision filed by the petitioner as not pressed. The Order of the Board of Revenue dated 28. 8. 2003 has not been challenged by the state or Gaon Sabha before any court of law and the same has become final between the parties. (d) The Board of Revenue thereafter proceeded to dismiss the revision filed by the petitioner as not pressed. The Order of the Board of Revenue dated 28. 8. 2003 has not been challenged by the state or Gaon Sabha before any court of law and the same has become final between the parties. ( 6 ) HOWEVER, on behalf of the respondent No. 3 it is contended that against the Order of the board of Revenue, an application to recall the said Order has been filed on the ground that the mathura Vrindavan Development Authority has not been heard before passing the aforesaid order. However, till date no Order has been passed on the said application of the Mathura vrindavan Development Authority. ( 7 ) IN view of the aforesaid fact situation, on behalf of the petitioners it is contended that it is now settled between the parties under the Judgment and Order of the Board of Revenue dated 28. 8. 2003 that the property in question does not belong to the Gaon Sabha and further the land holding is the property of the petitioners. It is therefore submitted that the notification issued by the State Government under Section 117 (6) is totally without jurisdiction as it proceeds on misconception of fact that the land covered by the notification is the property of the Gaon Sabha. ( 8 ) ON behalf of the respondent it is contended that this Court may await the outcome of the application filed by the Mathura Vrindavan Development Authority before the Board of revenue. ( 9 ) I have heard counsel for the parties and have gone through the records of the writ petition. ( 10 ) FROM the facts which have been recorded hereinabove, it is apparently clear that the title of the petitioners over the land in question has been declared in suit proceedings initiated under section 229 (b) of the U. P. Zamindari Abolition and Land Reforms Act and the judgment and order of the Honble Board of Revenue dated 28. 8. 2003 in that regard has become final between the parties namely petitioners and the Gaon Sabha inasmuch as the Gaon Sabha has not challenged the Order dated 28. 8. 2003. 8. 2003 in that regard has become final between the parties namely petitioners and the Gaon Sabha inasmuch as the Gaon Sabha has not challenged the Order dated 28. 8. 2003. A notification in exercise of powers under Section 117 (6)of the U. P. Zamindari Abolition and Land Reforms Act can be issued in respect of the land belonging to the Gaon Sabha only. For ready reference Section 117 (6) Is being quoted herein below : "117 (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 thing, 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 thing : 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-section (3), (4) and (5), as the case may be, shall mutatis mutandis apply to such declaration. " ( 11 ) IN view of the aforesaid statutory provision, the State Government has no authority of law to issue any notification in respect of the land of which the petitioners are the owners inasmuch as the said land does not belong to the Gaon Sabha. in such circumstances, the notification issued by the State Government is legally not sustainable and deserves to be quashed. ( 12 ) MATHURA Vrindavan Development Authority being a transferee of land after it was resumed by the State Government under notification 117, (6) of the U. P. Zamindari Abolition and Land reforms Act cannot have any better title over the property in question than right which was possessed by the Gaon Sabha nor it can plead any better title before any court of law than that was pleaded by the Gaon Sabha. The Gaon Sabha having lost the dispute pertaining to the title over the property in question and the Order having become final, the same would equally bind the transferee namely Mathura Vrindavan Development Authority. In such circumstances, the transfer of the land under the notification dated 10th August, 1990 to Mathura Vrindavan development Authority also cannot be justified. ( 13 ) IN view of the aforesaid, the writ petition is allowed. Notification issued by the State government dated 10th August, 1990 is hereby quashed. The respondents are directed not to interfere in the peaceful possession of the petitioners over the land in question in any manner on the basis of the notification dated 10th August, 1990 or any subsequent action taken in pursuance thereof. . .