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Allahabad High Court · body

2009 DIGILAW 2922 (ALL)

MOHD. ZAFAR v. STATE OF U. P.

2009-08-24

ASHOK BHUSHAN, R.A.SINGH

body2009
JUDGMENT Hon’ble Ashok Bhushan, J.—We have heard Sri K.R. Sirohi, learned Senior Advocate assisted by Sri Amit Malik for the petitioner, Sri A.K. Misra, learned counsel appearing for the respondent No. 3 and Sri Maya Shankar Srivastava, learned counsel appearing for the respondent No. 2 as well as learned Standing Counsel. 2. Pleadings of the parties having been completed, with the consent of learned counsel for the parties, this writ petition is finally decided. 3. Brief facts of the case as emerged from pleadings of the parties are as follows : The Government of United Provinces under the provisions of the Land Acquisition Act, 1894 acquired 277.42 acres of land for Sewage Farm for the drainage of Allahabad Municipality. The notification under Section 6 of the Land Acquisition Act was published in the United Provinces Gazette dated September 11, 1915. 277.42 acres consisted land of two villages of Pargana Arail i.e. Village Jahangirabad 204.07 acres and village Mahewa 73.35 acres. The acquired land was transferred and vested in the Municipal Board, Allahabad in 1915 itself. A part of the land which was acquired for sewage farm was given on short-term allotment to various persons including the father of the petitioners. Plot No. 62/3 area 4 biswas, plot No. 61/3 area 4 biswas, plot No. 44/2 area 15 biswas, 48/1 area 12 biswas, 83/2 area 2 biswas, 84/3 area 4 biswas. Total 2 Bighas and 1 biswa land was given on short allotment to the petitioner’s father. A case under Section 175 of U.P. Tenancy Act being case No. 65 of 1958 was filed by the Municipal Board against the father of the petitioners in which a compromise was entered on 31.10.1958 that father of the petitioner shall not claim any occupancy right and after settlement up to 31.1.1971 he will vacate the land failing which decree of eviction shall be treated to have been passed against him. Notice was given on 18.6.1964 to the father of the petitioners for vacating the plots. On 12.10.1965, the municipal board decided to give short-term settlement for five years more to the occupants on the rates of Lagan as fixed in the decision. After expiry of the five years, no further settlement was made in favour of the occupants including father of the petitioners. 4. On 12.10.1965, the municipal board decided to give short-term settlement for five years more to the occupants on the rates of Lagan as fixed in the decision. After expiry of the five years, no further settlement was made in favour of the occupants including father of the petitioners. 4. A suit under Section 175 of U.P. Tenancy Act was filed by the Nagar Nigam against the occupants who were earlier given short-term settlement for their eviction. One of the case was also filed against the father of the petitioners. In all, 64 cases were consolidated and trial Court framed a preliminary issue as to whether U.P. Tenancy Act,1939 was applicable or not. The preliminary issue was decided by the trial Court on 31.7.1978 holding that U.P. Tenancy Act has been repealed by the U.P. Urban Area Zamindari Abolition Land Reforms Act, 1956 w.e.f. 1.7.1963 hence, the U.P. Tenancy Act, 1939 is no more applicable. The suit under Section 175 of U.P. Tenancy Act was held to be not maintainable with the observation that cases for eviction be filed under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. First appeal was filed before the Commissioner, which was dismissed on 28.10.1978. Second appeal was filed in the Board of Revenue which too was dismissed on 17.2.1992. Board of Revenue took the view that the issue as to whether suit could have been proceeded under U.P. Tenancy Act ought to have been raised before the District Judge, who was authority competent to hear the appeal. After dismissal of the second appeal, proceedings were initiated against the father of the petitioner by Nagar Nigam, Allahabad before the Prescribed Authority/Sub Divisional Officer for eviction under 1972 Act. Father of the petitioners died on 16.3.1995 thereafter the proceedings under U.P. Public Premises (Eviction of Unauthorised Occupants) Act is not said to be proceeded with. A decision was taken by Nagar Nigam, Allahabad on 24.2.2005 to transfer 45 hectrares of land of Naini sullage farm in favour of the Allahabad Development Authority at the rate of Rs. 10,00000 per acre. The respondents have alleged that possession was transferred to Allahabad Development Authority on 25.2.2005. 5. A decision was taken by Nagar Nigam, Allahabad on 24.2.2005 to transfer 45 hectrares of land of Naini sullage farm in favour of the Allahabad Development Authority at the rate of Rs. 10,00000 per acre. The respondents have alleged that possession was transferred to Allahabad Development Authority on 25.2.2005. 5. After the claim of the respondents that possession of 45 acres of land situated in village Jahangirabad Uperhar having been taken on 25.2.2005, several writ petitions were filed in this Court praying for a writ of mandamus, directing the respondents not to dispossess the petitioners from the property in dispute. The writ petitions were filed by several occupants, who were claiming to be in possession of plots on which possession were sought to be given to the Allahabad Development Authority on 25.2.2005. The writ petition No. 76191 of 2005, 30679 of 2005, 72134 of 2005 and 72135 of 2005 were filed by occupants. The writ petition No. 76191 of 2005, Mohammad Mustafa and others v. State of U.P. and others and all above other writ petitions were dismissed by this Court on 23.3.2006 by following order : “These writ petitions for a direction to the respondents not to dispossess the petitioners from the property in dispute. We have heard the counsel for the petitioners, the Standing Counsel, Sri B.B. Paul, Sri G.N. Verma, Sri D.C. Tripathi, Sri A.K. Misra and Dr. Abda Saiyad for the respondents. The petitioners may, if so advised, file a suit for declaration and injunction. With these observations, the writ petition is dismissed.” 6. Against the order of this Court dated 23.3.2006, dismissing the above writ petitions with the observation that the petitioner may, if so advised file a suit for declaration and injunction, special leave to appeal No. 7564 of 2006 was filed in the apex Court which was dismissed by the Apex Court on 8.5.2006. Subsequent to dismissal of the Special Leave Petition, the occupants filed Civil suit in the Court of Civil Judge (Senior Division) Allahabad being suit No. 384 of 2006, Nizamuddin and others v. Nagar Nigam, Allahabad suit No. 478 of 2006 Iqbal Ahmad and others v. Nagar Nigam Allahabad and suit No. 483 of 2006, Wasimullah and others v. Nagar Nigam, Allahabad. In the said suits, relief of perpetual injunction against the defendant respondents was prayed for. In the said suits, relief of perpetual injunction against the defendant respondents was prayed for. The trial Court allowed the application for interim injunction against which the appeal was filed before the learned District Judge. The appellate Court allowed the Misc. appeal vide its order dated 2.8.2006 setting aside the order for temporary injunction. The writ petition No. 4711 of 2006, Nizamuddin and others v. Nagar Nigam was filed in this Court challenging the order passed by the appellate Court. This Court vide its judgment and order dated 11.3.2008 dismissed the writ petition. Against the order dated 11.3.2008 dismissing the writ petition, Special Leave to Appeal No. 12735 of 2008 was filed in the apex Court which was dismissed by the apex Court on 11.7.2008. The present writ petition has been filed in this Court by two writ petitioners on 11.12.2008 in which this Court by order dated 26.2.2009 directed the Vice-Chairman of Allahabad Development Authority and Nagar Ayukt, Nagar Nigam to file detailed counter affidavit with all supporting materials and further directed the parties to maintain status-quo. 7. Petitioners’ case in the writ petition is that petitioners’ father was recorded as a hereditary tenant over plot No. 44/2, 48/1, 61/3, 62/3 situate in village Jahangirabad Kachhar and Jahangirabad Uperhar, Pargana Arail, Tahsil Karchhana, District Allahabad. It is clear that the petitioners’ father was also recorded in possession in 1359 Fasali and the name of petitioners’ father continued in Khasra. After death of petitioners’ father on 16.3.2005, the petitioners claim to be in continuous possession. It is stated in the writ petition that land of village Jahangirabad Kachhar and Jahangirabad Uperhar was acquired on 11th September, 1915 and no sewage farm was created by Allahabad Municipality and petitioners continued in possession. The petitioners claim that their ancestors having not been evicted under Section 180 of the U.P. Tenancy Act, they became hereditary tenant under sub-section (2) of Section 180 of U.P. Tenancy Act, 1939 (hereinafter referred to Tenancy Act, 1939). It is claimed that suit under Section 175 of U.P. Tenancy Act filed by Nagar Nigam having been dismissed up to the Board of Revenue and proceedings initiated under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 is still being pending, the petitioners have right to continue in possession and no order of eviction has been passed against them till date. It is alleged that possession of land was never taken by the Collector or Nagar Maha Palika in pursuance of the declaration under Section 6 of the Land Acquisition Act and land never vested in the State. It is further claimed that rights have been acquired under Section 18 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. It is further claimed that rights of the State as well as Nagar Nigam have been extinguished by virtue of the provisions under Section 27 of Limitation Act, 1963. It is pleaded in the writ petition that on 3.12.2008, the officials of Allahabad Development Authority came on the spot to take possession. The proceeding of transferring the possession by Nagar Nigam to Allahabad Development Authority is nothing but farce. The petitioners claim to be in possession of the plots. On the aforesaid pleading the writ petition has been filed with following reliefs : “(i) A writ, order or direction in the nature of mandamus commanding the respondents to refrain from dispossessing the petitioners from the land in question details of which have been mentioned in the writ petition and from interfering in the peaceful possession of the petitioners in any manner either personally or through their agents. (ii) Any other writ, order or direction as this Hon’ble Court may deem fit and proper in the facts of the case.” 8. Detailed counter affidavit has been filed by Nagar Nigam as well as Allahabad Development Authority. In the counter affidavit filed by Nagar Nigam, it has been stated that total 277.42 acres of land was acquired under the Land Acquisition Act, 1894 and notification under Section 6 was issued on 11.9.1915. 204.07 acres of land of Jahangirabad was acquired for sewage farm for drainage of Allahabad municipality. It is further pleaded that in the year 1942 after resolution of the municipal board above mentioned six plots were given on short-term allotment to the petitioners’ father. Copy of the compromise in suit No. 65 of 1958 dated 31.10.1958 has been brought on record as Annexure-10 to the counter affidavit. It is claimed that subsequently for further five years, a settlement was made vide resolution dated 12.10.1965 but thereafter it was not extended. It is claimed that Nagar Nigam transferred the possession to the Allahabad Development Authority on 25.2.2005. It is claimed that subsequently for further five years, a settlement was made vide resolution dated 12.10.1965 but thereafter it was not extended. It is claimed that Nagar Nigam transferred the possession to the Allahabad Development Authority on 25.2.2005. Details of writ petition filed in the year 2006 claiming mandamus that petitioners be not dispossessed and dismissal of the writ petitions on 23.3.2006 thereafter dismissal of the Special Leave Petition, filing of suit by several occupants, grant of interim injunction, setting aside the interim injunction by the appellate Court and dismissal of the writ petition No. 47111 of 2006 have been pleaded. Copy of the judgment of the High Court in writ petition No. 47111 of 2006 dated 11.3.2008 has been filed as Annexure-7 to the counter affidavit, which order was also affirmed by the Apex Court on 11.7.2008. Reliance has also been placed on earlier judgment of the Division Bench of this Court in Special Appeal Nos. 899 of 1969 and 900 of 1969 decided on 24.7.1973, Nagar Maha Palika Allahabad v. Amar Pal Singh, copy of which has been filed as Annexure-15 to the counter affidavit filed on behalf of respondent No. 2. Allahabad Development Authority has also filed detailed counter affidavit. It is claimed by Allahabad Development Authority that decision was taken to transfer the land on 24.2.2005 in pursuance of which possession was taken by Allahabad Development Authority on 25.2.2005. Copy of the possession memo has been brought on record. It is further submitted that the petitioners did not became hereditary tenant under sub-section (2) of Section 180 by virtue of Section 30 of the U.P. Tenancy Act. Copy of the order of the State Government dated 31.12.2008, informing Nagar Ayukt that State Government has no objection for transferring the 45 hectares of land in favour of Allahabad Development Authority, copy of the plaints and application filed for injunction, written statement in suit No. 483 of 2006 and 485 of 2006 have been filed along with counter affidavit. Copy of the order of the State Government dated 31.12.2008, informing Nagar Ayukt that State Government has no objection for transferring the 45 hectares of land in favour of Allahabad Development Authority, copy of the plaints and application filed for injunction, written statement in suit No. 483 of 2006 and 485 of 2006 have been filed along with counter affidavit. It has been stated that attempt of other co-tenants to obtain order from this Court having failed which orders were affirmed up to the apex Court, suit by other tenure holders for injunction was filed in which also interim injunction was rejected which order was affirmed up to the Apex Court, the writ petition filed by the petitioners should be dismissed on the ground that the petitioners may also establish their right by filing suit in the trial Court. 9. Sri K.R. Sirohi, learned counsel for the petitioners in support of the writ petition contended that petitioners cannot be dispossessed from the land in dispute without payment of adequate compensation. Learned counsel for the petitioners has placed reliance on Articles 31-A and 300-A of the Constitution of India. It is submitted that State cannot acquire the land without giving adequate compensation to the petitioners at the rate of market value because the land is in personal cultivation of the petitioners. It is further submitted that period of lease given in favour of the petitioners’ father having been expired, the respondents ought to have instituted a suit before the competent Court and no suit having been instituted, the rights of respondents have extinguished as prescribed under Section 27 of the Limitation Act. It is submitted that the petitioners who are in possession cannot be dispossessed. It is further submitted that the judgment of this Court by which refusal of interim injunction in suit filed by other tenants was confirmed on 11.3.2008 in writ petition No. 47111 of 2006 was a judgment which was based on concession of the petitioners of that case that they do not claim any title in the suit property. Lastly, it was contended that Nagar Nigam could not have handed over possession to the Allahabad Development Authority nor Allahabad Development Authority has any right to dispossess the petitioners. It is contended that there is no title in favour of Allahabad Development Authority. Lastly, it was contended that Nagar Nigam could not have handed over possession to the Allahabad Development Authority nor Allahabad Development Authority has any right to dispossess the petitioners. It is contended that there is no title in favour of Allahabad Development Authority. Reliance has been placed on a judgment of the apex Court in the case of Rame Gowda v. M. Varadappa Naidu, AIR 2004 SC 4609 . 10. Sri A.K. Misra, learned counsel appearing for the Allahabad Development Authority refuting the contentions of learned counsel for the petitioners, contended that present writ petition is liable to be dismissed on the ground that when other persons, who also claim similar rights like the petitioners in the land comprising of 45 hectares transferred to Allahabad Development Authority, filed writ petitions in this Court praying a mandamus against the respondents which writ petitions were dismissed on 23.3.2006 with liberty to them to establish their right in a Civil Court, which order was also affirmed by the apex Court on 8.5.2006, petitioners, if they are so advised may file a civil suit to establish their right. It is further contended that after the dismissal of the Special Leave Petition, civil suit was filed as noticed above, in which interim injunction granted was set aside by appellate Court, which order was affirmed by the High Court and apex Court, the petitioners are not entitled to claim any right under Article 226 of the Constitution of India. It is further submitted that Allahabad Development Authority is proceeding to implement a scheme for allotment of plots and houses namely; ‘Nav Prayagam’, which is a scheme for public benefit and no interim order should be granted to the petitioners, which may have effect of frustrating the public interest. Learned counsel for the Allahabad Development Authority submitted that the petitioners’ ancestor did not acquire any right under Section 180(2) of the U.P. Tenancy Act, 1965 by virtue of Section 30 of the Tenancy Act which provided that the land acquired by municipal board for public purpose is exempted from accruing any rights of hereditary tenants. Learned counsel for the Allahabad Development Authority submitted that the petitioners’ ancestor did not acquire any right under Section 180(2) of the U.P. Tenancy Act, 1965 by virtue of Section 30 of the Tenancy Act which provided that the land acquired by municipal board for public purpose is exempted from accruing any rights of hereditary tenants. It is further submitted by learned counsel for the petitioners that with regard to plots No. 62/3, 83/2 and plot No. 84/3 which are the plots in part of which petitioners are also claiming rights they are also subject matter of suit No. 483 of 2006, copy of the plaint of suit No. 483 of 2006, Wasim Ullah v. Nagar Nigam has been filed as Annexure C.A-8 to the counter affidavit of respondent No. 3 in which plot No. 83/2 and 84/3 are also included in the plaint. 11. Learned Counsel for Nagar Nigam adopted the submission made by Allahabad Development authority and contended that petitioners’ ancestors did not acquire any right. After acquisition of the land in 1915, land vested in the State and thereafter in the Municipal Board. Petitioners’ father were given only short-term allotment which came to an end in the year 1969 and petitioners have neither any right nor entitled for any relief. Learned counsel for the State respondents has also adopted the submissions made by learned Counsel for the Allahabad Development Authority. 12. We have considered the submissions of learned counsel for the parties and have perused the record. 13. The first submission which has been pressed by Sri K.R. Sirohi, learned Senior Advocate in support of the writ petition is that State cannot take the land from the petitioners without paying the compensation at the market value. He placed reliance on Article 31-A of the Constitution of India in support of his submission. Elaborating his submission, it is contended that under Article 31-A (1) proviso where the land is held by person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land under any law for the period being in force unless the law relating to the acquisition of such land provides for payment of compensation at the market value. Article 31-A is quoted as below : “ 31A. Article 31-A is quoted as below : “ 31A. Saving of laws providing for acquisition of estates, etc.—(1) Notwithstanding anything contained in Article 13, no law providing for— (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 : Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent : Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.” 14. Article 31-A of the Constitution of India provides for saving of laws providing for acquisition of estate. Article 31-A of the Constitution of India provides for saving of laws providing for acquisition of estate. The main provision of Article 31-A is thus protection of law providing for acquisition by State of any estate from being violative of Articles 14 and 19 of the Constitution of India. In the present case, no issue pertaining to validity of any acquisition law is in issue. The acquisition which was made in the year 1915 under the Land Acquisition Act is a fact accomplished vesting the right in favour of Nagar Nigam and Municipal Board which cannot be made an issue in the present writ petition. The proviso to Article 31-A (1) is again with regard to a law making. Present is not a case where State has proceeded to adopt any acquisition proceedings under any law at present. The case of the respondents is that acquisition having already been made in the year 1915, the rights of ownership vests in the State and Nagar Nigam and short-term allotment given to the petitioners’ ancestors having come to an end, the petitioners have no right over the land nor any hereditary tenancy can be acquired by the petitioners by virtue of Section 30 of U.P. Tenancy Act, 1939. Thus, Article 31-A does not help to the petitioners in the present case in any manner. In so far as Article 300-A is concerned, which provides that no person shall be deprived of his property save by authority of law, there cannot be any dispute to the constitutional provision as contained in Article 300-A but in the present case, it is case of the respondents that owner of the land is State/Nagar Nigam and petitioners have no right in the land and short-term allotment in their favour came to an end long ago. 15. Much emphasis has been laid by learned counsel for the petitioners on Section 180(2) of the U.P. Tenancy Act, 1939. Learned Counsel for the petitioners submits that no suit having been filed for eviction, petitioners had became hereditary tenants more so when suit filed earlier under Section 175 of the U.P. Tenancy Act was dismissed as not maintainable up to the Board of Revenue, the rights of the respondents stood extinguished. At this juncture, it is relevant to look into the provisions of U.P. Tenancy Act. The petitioners claim rights of hereditary tenants. At this juncture, it is relevant to look into the provisions of U.P. Tenancy Act. The petitioners claim rights of hereditary tenants. Section 29 of the Act deals with hereditary tenants. Section 30 provides for the land in which hereditary rights shall not accrue. Sections 29 and 30 of the Tenancy Act are quoted as below : "29. Hereditary tenants.—Every person belonging to one or another of the following classes shall be a hereditary tenant, and subject to any contract which is not contrary to the provisions of Section 4, shall be entitled to all the rights conferred, and be subject to all the liabilities imposed on hereditary tenants by this Act, namely; (a) every person who is, at the commencement of this Act, a tenant of land otherwise than as permanent tenure-holder, a fixed-rate tenant, a tenant holding on special terms in Oudh, an ex-proprietary tenant, an occupancy tenant, or except as otherwise provided in this Act, as a sub-tenant as a tenant or a tenant of sir, (b) every person who is, after the commencement of this Act, admitted as a tenant otherwise than as a tenant of Sir or as sub-tenant; (c) every person who, in accordance with the provisions of this Act, acquires hereditary rights. Explanation.—For the purposes of this section ‘sub-tenant’ does not include a person who holds land from a relation, dependant or servant proves to the satisfaction of the Court that he is a genuine tenant of such land and has not been admitted to prevent the accrual of hereditary rights in favour of such person. 30. Land in which hereditary rights shall not accrue.—Notwithstanding anything in Section 29, hereditary rights shall not accrue in— (1) groveland, pasture land, or land covered by water and used for the purpose of growing Singhara or other produce. 30. Land in which hereditary rights shall not accrue.—Notwithstanding anything in Section 29, hereditary rights shall not accrue in— (1) groveland, pasture land, or land covered by water and used for the purpose of growing Singhara or other produce. (2) land used for the casual or occasional cultivation in the bed of a river; (3) land acquired or held for a public purpose or a work of public utility; and in particular, and without prejudice to the generality of this clause— (a) lands at present, or which may, hereafter, be set apart for military encamping grounds; (b) lands situated within the limits of any cantonment; (c) lands included within railway or canal boundaries; (d) lands acquired by a town improvement trust, in accordance with a scheme mentioned under Sec. 42 of the United Provinces Town Improvement Act, 1919; or by a municipality for a purpose mentioned in clause (a) or clause (c) of Sec. 8 of the United Provinces Municipalities Act, 1916; (e) lands within the boundaries of any Government forests; (f) municipal trenching grounds; (g) land held or acquired by educational institutions for purposes of instruction in agriculture; (4) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the official Gazette; (5) such area included in tea estates as the State Government with the previous approval of both Houses of the Legislature, may notify as areas in which, in the interest of the tea industry, hereditary rights should not accrue : Provided that, notwithstanding in the inclusion of any plot in any notification issued under this clause before the first day of September, 1946, such plot if held by a tenant the aggregate area of whose holding exceeds one-half of an acre, shall be deemed never to have been included in any such notification : Provided further that if any tenant has been ejected since January 1, 1940, from any plot to which the foregoing proviso applies on grounds other than those on which a hereditary tenant is liable to ejectment such ejected tenant shall be reinstated in such plot, if he applies to a competent Court within six months from the date of the commencement of the United Provinces Tenancy (Amendment) Act, 1947. (6) land transferred by a mortgage to which the provisions of the second paragraph of sub-section (5) of Section 15 of the Agra Tenancy Act, 1926, apply during the period specified in that paragraph; (7) the Khudkasht of a landlord, permanent tenure-holder or under proprietor, the local rate payable by whom does not exceed Rupees twenty-five per annum, if such Khudkasht is let out when such landlord, permanent tenure holder or under-proprietor is in the military, naval or air service of the Government or within three months before the entry in or three months after the cessation, of such service : Provided that provision of this clause shall not apply— (a) if, at the time such Khudkasht is let out, there are several co-sharers in such khudkasht and not all of them are in the service of the Government as aforesaid, unless the co-sharers who are not in such service, belong to one or more of the following classes, namely, females, minors, lunatics, idiots or persons incapable of cultivation by reason of blindness or physical infirmity; and (b) beyond the thirtieth day of June next following the expiry of two years after the cessation of such service of landlord, permanent tenure holder or under-proprietor, as the case may be. (8) lands notified by the State Government in accordance with rules to be framed by the State Government for the purpose of taungya plantation. Explanation.—For the purposes of this sub-section ‘taungya plantation’ means the system of afforestation whereunder the plantation of forest trees according to a scientific system, is done in the initial stages simultaneously with the cultivation of agricultural crop which ceases when the young trees begin to form a canopy and make further cultivation of agricultural crops impossible.” 16. At this juncture, it is relevant to note that Section 180 of the U.P. Tenancy Act also, which is quoted as below : “180. At this juncture, it is relevant to note that Section 180 of the U.P. Tenancy Act also, which is quoted as below : “180. Ejectment of person occupying land without consent.—(1) A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants : Provided that, notwithstanding the provisions of sub-section (1) of Section 246, where such a person taking or retaining possession is one of the co-sharers whose joint consent is required to bring such suit, he shall not be required to join as plaintiff in the suit. In such a case, the decree passed in favour of the plaintiff shall be deemed to be in favour of all such co-sharers. Explanation I.—A co-sharer in the proprietary rights in a plot of land taking or retaining possession of such plot without the consent of the whole body or co-sharers or of an agent appointed to act on behalf of all of them, shall be deemed to be in possession of such plot otherwise than in accordance with the provisions of the law within the meaning of this section. Explanation II.—A tenant entitled to sublet a plot of land in accordance with the provisions of the law for the time being in force may maintain a suit under this section against the person taking or retaining possession of such plot otherwise than in the circumstances for which provision is made in Section 183. Explanation II.—A tenant entitled to sublet a plot of land in accordance with the provisions of the law for the time being in force may maintain a suit under this section against the person taking or retaining possession of such plot otherwise than in the circumstances for which provision is made in Section 183. (2) If no suit is brought under this section, or if a decree obtained under this section is not executed, the person in possession shall become a hereditary tenant of such plot or if such person is a co-sharer, he shall become a khudkasht holder, on the expiry of the period of limitation prescribed for such suit or for the execution of such decree, as the case may be : Provided that where the person in possession cannot be admitted to such plot except as sub-tenant by the person entitled to admit, the provisions of this sub-section shall not apply until the interest of the person so entitled to admit is extinguished in such plot under Section 45(f).” 17. As noticed above, a suit under Section 180 (1), if not brought, the person in possession shall become hereditary tenants of plot. Section 29(3) also provides one of the mode of acquiring hereditary rights i.e. acquisition of rights in accordance with the provisions of Act. Thus, acquisition of hereditary tenancy in the circumstances as mentioned under Section 180 (2) is fully covered by Section 29 (c). Section 30(3) provides that no hereditary rights shall accrue in land acquired held for public purpose. The land in question was acquired for sewage farm in the year 1915 as noticed above. It is relevant to extract the relevant portion of the United Provinces Gazette dated September, 1915 which is to the following effect : “No. 1697/XI-213E—The land designated below being required for a public purposes declaration is made accordingly. District Pargana Mauza Approxi- For what pur- Remarks. mate area pose required Allahabad Arail Jahangirabad 204.07 Sewage Farm for The plan may be Mahewa 73.35 drainage of the inspected at the ——— Allahabad Collector’s 277.42 Municipality. Office, Allahabad. This declaration is made under Section 6, Act I of 1894 (The Land Acquisition Act) and under Section 7 of that Act the Collector of Allahabad is hereby directed to take order for the acquisition of the lands specified above.” 18. Office, Allahabad. This declaration is made under Section 6, Act I of 1894 (The Land Acquisition Act) and under Section 7 of that Act the Collector of Allahabad is hereby directed to take order for the acquisition of the lands specified above.” 18. The 277.42 acres of land was acquired for drainage of Allahabad municipality which is a public purpose of utmost importance. Thus by virtue of Section 30 (3) of Tenancy Act, no hereditary rights can accrue on such land. The Division Bench judgment relied by the respondents in Special Appeal No. 899 of 1969, Nagar Maha Palika v. Amar Pal Singh directly covers the aforesaid issue. In the said case also the land which was acquired for public purpose in the year 1915 was let out for 15 years to the respondents on a lease dated June 5, 1945. The period expired. The Nagar Maha Palika filed a suit for possession. The suit was contested on the ground that defendant had acquired hereditary rights under Section 180 of the U.P. Tenancy Act. The said argument was repelled and following was laid down : “The next question argued on behalf of the defendant respondent was that he had acquired hereditary rights under Section 29 of the U.P. Tenancy Act. The Municipal Board had let out the land to the defendant for a fixed term of 15 years. Ex-facie, the respondent would acquire hereditary tenancy rights under Section 29. Section 30 engrats a statutory exception. It provides that : Notwithstanding anything in Section 29, hereditary rights shall not accrue in— ....................................... (3) land acquired or held for a public purpose or a work of public utility; and in particular, and without prejudice to the generality of this clause, ....................................... (d) lands acquired ...........by a Municipality for a purpose mentioned in clause (a) or clause (c) of Section 8 of the United Provinces Municipalities Act, 1916........” Clause (3) of Section 30 provides that hereditary rights shall not accrue in land acquired or held for a public purpose. In the present case the land was acquired under the Land Acquisition Act. Clearly, it was acquired for public purpose. It fell within the purview of clause (3). The second part of clause (3) namely, “and in particular, and without prejudice to the generality of this clause” is illustrative of acquisitions for public purposes. In the present case the land was acquired under the Land Acquisition Act. Clearly, it was acquired for public purpose. It fell within the purview of clause (3). The second part of clause (3) namely, “and in particular, and without prejudice to the generality of this clause” is illustrative of acquisitions for public purposes. The lands of acquisitions mentioned in clauses (a) to (g) as illustrative of lands being acquired or held for public purpose. It is to be noted that the phrase “acquired or held” also that is not necessary that land which was acquired for a public purpose must continue to be held for that purpose. If it is neither acquired or held for a public purpose, it will come within the clause. So the fact that after being acquired for the public purpose the land in dispute was let out to the defendant will not take it outside the purview of clause (3). In any event, it was acquired for a public purpose.” The trial Court found that the acquisition in the present case was covered by clause (c) of Section 8, Municipalities Act. Section 8 (c) mentions “reclaiming unhealthy localities.” In this case the acquisition related to sanction. In our opinion the purpose of the acquisition is clearly covered by clause (c). It thus appears that the land was such in which hereditary rights could not accrue.” 19. Now comes the submission which has been pressed by learned counsel for the petitioners that no suit having been filed within the limitation prescribed under the Limitation Act, 1963, the rights, if any of the respondents have extinguished. It is relevant to note that the land which was acquired was an agricultural land and the rights which are claimed by the petitioners are rights claimed under the Tenancy Act. By virtue of Section 29, the limitation prescribed under the Special Act shall prevail over the limitation prescribed under the Limitation Act, 1963. U.P. Tenancy Act, 1939 itself providing various limitations for suits and proceedings under the U.P. Tenancy Act, it is not necessary to refer to limitation prescribed under Articles 67 and 112 as relied by learned counsel for the petitioners. The scheme of U.P. Tenancy Act have been framed in a manner that no hereditary rights can accrue on a land which was acquired or held for public purpose and which was covered by Section 30 (3). The scheme of U.P. Tenancy Act have been framed in a manner that no hereditary rights can accrue on a land which was acquired or held for public purpose and which was covered by Section 30 (3). When the Tenancy Act itself contemplate non extinction of rights of the owner over a land which was acquired and held for public purpose by merely not filing suit under Section 180 nothing can be read in the Limitation Act by which the rights of the respondents can be said to be extinguished. The submission which has been also pressed by learned counsel for the petitioner is that suit filed under Section 175 of the Tenancy Act having not been held to be maintainable up to the Board of Revenue and proceedings under the U.P. Public Premises Eviction of Unauthorised Occupants Act initiated by Nagar Maha Palika being pending, the petitioners cannot be dispossessed as noticed above. The writ petition by other persons who were claiming possession on other plots comprised in 45 hectares of land which is said to be transferred to Allahabad Development Authority, having been dismissed by this Court taking the view that if so advised, they may file suit for declaratory injunction, which decision was affirmed up to the apex Court and secondly in suit filed by similarly situated persons, the interim injunction was refused by the appellate Court, which has been affirmed up to the apex Court, we are not persuaded to entertain this writ petition. The petitioners also deserve the same treatment i.e. dismissal of the writ petition. It shall be left open to them to institute a suit for declaration and injunction. Learned Counsel for the Allahabad Development Authority has pointed out that out of the plots on which petitioners’ father was given short-term allotment and on which the petitioners claim possession are plots No. 62/3, 82/3 and 84/3, which are also subject matter of suit No. 483 of 2006, Wasim Ullah and others v. Nagar Nigam and others. It may be that those petitioners Wasim Ullah and others who were also claiming rights similar in nature which are claimed by the petitioners, the petitioners should also be at liberty to institute a suit for declaration and injunction in a competent Court. It may be that those petitioners Wasim Ullah and others who were also claiming rights similar in nature which are claimed by the petitioners, the petitioners should also be at liberty to institute a suit for declaration and injunction in a competent Court. In view of the fact that the interim injunction granted by the trial Court in the suit filed by similarly situated persons in the year 2006 in the Court of Civil Judge (Senior Division), Allahabad, which injunction was set aside by appellate Court and maintained by the High Court vide detailed judgment dated 11.3.2008 in writ petition No. 47111 of 2006, Nizamuddin v. Nagar Nigam, Annexure-7 to the counter affidavit filed by the respondent No. 2, we are not inclined to grant any relief in this writ petition. 20. The rights which are claimed by the petitioners in this writ petitions including their claim that rights of respondents have been extinguished are the issues for adjudication of which evidence shall be required. When the claim of the respondents is that possession of land was handed over by Nagar Nigam to Allahabad Development Authority on 23.2.2005, it is appropriate that petitioners may also be given opportunity to institute a suit in a competent Court for establishing their rights. In so far as the judgment which has been relied by learned counsel for the petitioners in the case of Rame Gowda (supra) is concerned, there cannot be any dispute to the proposition laid down by the Apex Court in the said case that a person in settled possession is entitled for protection. In the said case, a suit was filed by the plaintiff which was decreed by the trial Court which decree was upheld by the High Court restraining the defendant appellant. The defendant appellant had come to the Apex Court against the said judgment. Case in Rame Gowda (supra) arose from a civil suit in which it was laid down that a person in a settled possession is entitled for protection. As observed above, it shall be open to the petitioners to establish their rights in a civil Court including their rights to maintain possession. The issues determination of which require evidence cannot be undertaken in proceedings under Article 226 of the Constitution of India. 21. As observed above, it shall be open to the petitioners to establish their rights in a civil Court including their rights to maintain possession. The issues determination of which require evidence cannot be undertaken in proceedings under Article 226 of the Constitution of India. 21. In view of the foregoing discussions, we are of the considered opinion that the petitioners are not entitled for any relief as prayed for in this writ petition. No mandamus as prayed for in the writ petition can be granted in favour of the petitioners. As observed above, the petitioners are at liberty to institute a suit in a competent civil Court for declaration and injunction. 22. After taking the above view, we would have closed the judgment here but certain facts have come on the record which raises some issues of public importance which cannot be ignored when relevant facts have come into the notice of the Court. One of the issues which has come up in this writ petition, which was filed by the petitioners for their private rights is an issue of public importance that is as to whether the land which was acquired by the State for sewage farm as early as in 1915, whether an area of 45 hectares of such land can be given by the Nagar Nigam to a Development Authority for construction of housing colony frustrating the purpose of acquisition. 23. The apex Court in the case of Ashok Lanka and another v. Rishi Dixit and others, (2005) 5 SCC 598, held that it is well settled that even in cases when the petitioner might have moved the Court in his private interest and for redressal of personal grievances, the Court may in furtherance of public interest treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. Following was laid down in paragraph 42 : “It may not be necessary for us to consider as to whether the public interest litigation should have been entertained by the High Court or not. The High Court did entertain the public interest litigation without any objection and ultimately allowed the same. Following was laid down in paragraph 42 : “It may not be necessary for us to consider as to whether the public interest litigation should have been entertained by the High Court or not. The High Court did entertain the public interest litigation without any objection and ultimately allowed the same. Furthermore it is well settled that even in a case where a petitioner might have moved the Court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice." [See Guruyayoor Devaswom Managing Committee v. C.K. Rajan, SCC para 50 and Prahlad Singh v. Col. Sukhdev Singh]" 24. In view of the law laid down by the apex Court as noticed above, we have further proceeded to notice the issues of public importance and public interest which have arisen in this case. 25. A Division Bench of this Court in Public Interest writ petition No. 4003 of 2006 Re : Ganga Pollution v. State of U.P. in which one of us (Hon’ble Ashok Bhushan, J.) was also a member had occasion to notice the issue of sewage treatment of Municipal Waste generated by city of Allahabad which is substantially flown untreated in river Ganga. In the above public interest litigation steps pertaining to sewage treatment was considered and the Court issued several directions to the State of U.P., Nagar Nigam, Allahabad and Union Government for taking steps for stopping pollution caused by throwing untreated sewage water of Allahabad city in river Ganga. It was noticed that total sewage water generated in Allahabad city is 213 MLD and the capacity of sewage treatment plant in the Allahabad was only 89 MLD per day thus 124 MLD of untreated sewage water is directly thrown from Allahabad city in river Ganga and river Yamuna polluting both the rivers. The pollution in river Ganga by throw of sewage of towns and city has reached to an alarming stage which was noticed by the apex Court as early as in 1987 while delivering judgment in M.C. Mehta case reported in (1987) 4 SCC 463 in following words : “Water is the most important of the elements of nature. River valleys have been the cradles of civilization from the beginning of the world. River valleys have been the cradles of civilization from the beginning of the world. Aryan civilization grew around the town and villages on the banks of the river Ganga. Varanasi which is one of the cities on the banks of the river Ganga is considered to be one of the oldest human settlements in the world. It is the popular belief that the river Ganga is the purifier of all but we are now led to the situation that action has to be taken to prevent the pollution of the water of the river Ganga since we have reached a stage that any further pollution of the river water is likely to lead to a catastrophe. There are today large towns inhabited by millions of people on the banks of the river Ganga. There are also large industries on its banks. Sewage of the towns and cities on the banks of the river and the trade effluents of the factories and other industries are continuously being discharged into the river. It is the complaint of the petitioner that neither the government nor the people are giving adequate attention to stop the pollution of the river Ganga. Steps have, therefore, to be taken for the purpose of protecting the cleanliness of the stream in the river Ganga, which is in fact the life sustainer of a large part of the northern India.” 26. Further in M.C. Mehta v. Union of India, (1988) 1 SCC 471 the apex Court issued direction to all Municipal Board for taking effective steps for stopping untreated sewage water falling in the rivers. Following are some of the directions issued to all the Municipal Boards in M.C. Mehta’s case : “17. It is no doubt true that the construction of certain works has been undertaken under the Ganga Action Plan at Kanpur in order to improve the sewerage system and to prevent pollution of the water in the river Ganga. But as we see from the affidavit filed on behalf of the authorities concerned in this case the works are going on at a snail’s pace. We find from the affidavits filed on behalf of the Kanpur Nagar Mahapalika that certain target dates have been fixed for the completion of the works already undertaken. But as we see from the affidavit filed on behalf of the authorities concerned in this case the works are going on at a snail’s pace. We find from the affidavits filed on behalf of the Kanpur Nagar Mahapalika that certain target dates have been fixed for the completion of the works already undertaken. We expect the authorities concerned to complete those works within the target dates mentioned in the counter-affidavit and not to delay the completion of the works beyond those dates. It is, however, noticed that the Kanpur Nagar Mahapalika has not yet submitted its proposals for Sewage treatment works to the State Board constituted under the Water Act. The Kanpur Nagar Mahapalika should submit its proposals to the State Board within six months from today. 26. What we have stated above applies mutatis mutandis to all other Mahapalikas and Municipalities which have jurisdiction over the areas through which the river Ganga flows. Copies of this judgment shall be sent to all such Nagar Mahapalikas and Municipalities.” 27. In the above public interest litigation being writ petition No. 4003 of 2006, Harchetan Bramchari Ji Mahraj v. State of U.P. and others (titled as Re : Ganga Pollution) several directions have been issued by the Division Bench of which one of us (Hon. Ashok Bhushan, J.) being member of that Division Bench to the Nagar Nigam, Allahabad, State of U.P. and Union of India. It is useful to quote certain directions issued in the said case pertaining to pollution of the river Ganga caused by discharging of untreated sewage water by the Nagar Nigam, Allahabad. Certain directions were issued by the Division Bench on 13.7.2007. It is useful to quote directions No. (1), (2), (3) and (4) of the order dated 13.7.2007 : “The projects, which were undertaken, under the Ganga Action Plan Phase-I and Phase-II be looked into and it be found out as to whether those projects have been completed or in progress. The State Government may also ensure that those sewage treatment plans and other schemes, which were to be implemented under the Ganga Action Plan Phase-I and Phase-II are functioning properly or not and steps be taken towards ensuring proper functioning of those projects. The State Government may also ensure that those sewage treatment plans and other schemes, which were to be implemented under the Ganga Action Plan Phase-I and Phase-II are functioning properly or not and steps be taken towards ensuring proper functioning of those projects. The State Government may take steps and issue necessary directions and request to the Central Government and the other Central Government authorities and other bodies who are in control of the aforesaid projects. (1) That in all Nagar Nigams, Municipalities and Nagar Panchayat etc. it be ensured that sewage treatment plants are established to the capacity, which is required for treatment of sewage water of local bodies. The said project be initiated in phase manner first taking the big cities. (2) A plan be also prepared for all the open Nalas falling directly in Ganges and to trap the Nalas and treat their water by treatment plan. (3) The Local Bodies, Nagar Nigams, Municipalities and Nagar Panchayats be asked to make appropriate plan and implement the project of treating sewage and dirty water on priority basis. Apart from resources of Municipal Boards, the State Government may make provisions for necessary finance in the project. Plans be prepared for all big cities situated on river Ganges in first stage.” 28. It is also useful to quote the directions issued on 7.11.2008 where details pertaining to untreated sewage water of Allahabad city was noticed : “For example, in district Allahabad the total untreated sewage water is 213 MLD and the capacity of the existing plants in Allahabad is only 89 MLD. Admittedly, 124 MLD untreated water is going everyday in the river Ganges causing pollution. About more than two years have passed when this writ petition was entertained and various directions from time to time were issued. We notice that in spite of our clear direction, no concrete steps/measures have been taken by the State of U.P., Union of India and the local authorities specially with regard to setting up of sewage treatment plants in various districts situate in bank of river Ganges and the same are held up in internal correspondence and lack of coordination. We notice that in spite of our clear direction, no concrete steps/measures have been taken by the State of U.P., Union of India and the local authorities specially with regard to setting up of sewage treatment plants in various districts situate in bank of river Ganges and the same are held up in internal correspondence and lack of coordination. In view of the above, we direct the Union of India to consider the project of sewage treatment plant of Allahabad which was earlier proposed under the JICA and as to whether the plant can be sanctioned as earlier recommended by reconsidering its earlier decision dated 26th March, 2008. We also direct the State of U.P. to take up the issue with the Government of India and inform in writing its stand and financial status with regard to the sanction of the plant by the Government of India to enable it to consider and take steps for sanction of sewage treatment plant.” 29. The Court also expressed in order dated 13.1.2009 that no concrete steps have been taken so far for treating the untreated 124 MLD water which is directly falling in river Ganges in city of Allahabad. “The directions issued by this Court on 13th July, 2007 were for early solution to the problem of polluted water being permitted to enter into river Ganges. The directions continue to exist on paper only. It is matter of the record that in each city which is on the bank of river Ganges including the Allahabad, the sewage treatment plants which have been set up are wholly insufficient to deal with the quantity of dirty water, which is generated and released from the cities daily. In the affidavit filed earlier by the Pollution Board as referred to in the order of this Court dated 10th December, 2008, it has been stated that from the city of Allahabad, total discharge of dirty water is 213 MLD and at present the capacity of STP at Naini is 60 MLD and STP at Salori is 29 MLD. Thus the total capacity of both the STP is only 89 MLD. Therefore, 124 MLD of dirty water is admittedly falling directly in river Ganges untreated through open Nala and other modes. The importance of potable and good quantity and quality of water in river Ganges needs no emphasis by the Court. Thus the total capacity of both the STP is only 89 MLD. Therefore, 124 MLD of dirty water is admittedly falling directly in river Ganges untreated through open Nala and other modes. The importance of potable and good quantity and quality of water in river Ganges needs no emphasis by the Court. The problem of polluting the water of river Ganges has been noticed by the Court time and again. In spite of different directions issued from time to time by the Apex Court as well as this Court, we are sorry to record that no concrete steps/measures have been taken so far. The Apex Court in the case of M.C. Mehta (II) v. Union of India and others (1988) 1 SCC 471 had directed the State Government to take all effective steps to stop the dirty water from falling directly in river Ganges. All Local Bodies were required to carry out the directions by the same Judgment. We have noticed in our earlier order that Nagar Nigam, Allahabad which is the responsible body to see that the water of river Ganges is not polluted, has neither come up with any plan nor has taken any steps for stopping the discharging of the dirty water directly into the river Ganges through open Nalas of the City.” 30. Huge land which was acquired in the year 1915 for sewage farm was acquired with the object of using the land acquired for purposes of treatment of sewage wastes of Allahabad City. When the sewage treatment plants are insufficient and the problem of untreated water being flown in rivers Ganga and Yamuna to the extent of more than 124 MLD per day has not yet been solved whether a substantial part of the land can be transferred to the Allahabad Development authority by the Nagar Nigam for construction of the housing colony is the question which has to be considered in public interest. The land which is sought to be transferred to Allahabad Development Authority by the Nagar Nigam in the year 2005 is the land on the right bank of river Yamuna. Constructions of housing colony right on the bank of river Yamuna may also be a source and cause for further pollution of the river water which needs to be considered. The land which is sought to be transferred to Allahabad Development Authority by the Nagar Nigam in the year 2005 is the land on the right bank of river Yamuna. Constructions of housing colony right on the bank of river Yamuna may also be a source and cause for further pollution of the river water which needs to be considered. Nagar Nigam, Allahabad which is entrusted with the statutory duty to make arrangement for treatment of municipal wastes, sewage generated from different housing colonies has failed to take effective measure which has already been noticed by another Division Bench in public interest litigation in Re : Ganga Pollution as noticed above. When the aforesaid facts have come into notice of the Court, in this writ petition which raises such important question of public interest, the Court has to step in and cannot remain a mute spectator. 31. In view of the above, we are of the considered opinion that let a public interest litigation be registered title Re : Sewage Farm, making State of U.P. through Principal Secretary Urban Development, Nagar Nigam Allahabad through Nagar Ayukt, Allahabad Development Authority through its Vice Chairman and Union of India through Ministry of Urban Development as respondents. A copy of this order be placed in the public interest litigation as directed to be registered above and the counsel appearing for the State of U.P. and Nagar Nigam and Allahabad Development Authority may file their pleadings in this regard. 32. The office may also serve a copy on the counsel representing the Union of India, Additional Solicitor General of India within three days. Let public interest litigation as directed be registered above and a copy of this order be placed before the Bench hearing PIL for taking such further steps as it may deem fit and proper. 33. As a result of foregoing discussions; (i) this writ petition is dismissed with liberty to the petitioner to institute a suit in a competent Court. (ii) a public interest litigation Titled ‘Re : Sewage Farm’ be registered and placed before the Bench hearing public interest litigation along with this order for consideration and appropriate orders. (iii) the parties shall bear their own costs. ————