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2014 DIGILAW 1497 (ALL)

Munna Lal Mittal v. Board of Revenue.

2014-05-08

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya), J.: - 1. Heard Sri K.D. Tripathi, for the petitioner and Sri B.D. Mandhyan, Senior Advocate, assisted by Sri Satish Mandhyan, for the contesting respondents. 2. This writ petition has been filed against the orders of Additional Commissioner dated 31.07.2002 allowing the revision of Kishi Utpadan Mandi Samiti, U.P. and setting aside the order of Additional City Magistrate dated 07.09.1998 and Board of Revenue, U.P. dated 10.11.2003, dismissing the revision of the petitioner, arising out of proceedings under Section 33/39 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act). 3. The dispute is in respect of plots 133 (area 2-1-0 bigha) and 134 (area 0-13-15 bigha) of village and tahsil Khairagarh, district Agra. Kishi Utpadan Mandi Samiti, U.P. (respondent-3) (hereinafter referred to as the respondent) filed an application (registered as Case No. 2 of 1999) under Section 33/39 of the Act, for recording its name over the land in dispute and deleting the name of the petitioner from it. It was stated by the respondent that the land in dispute was acquired by State of U.P. on the requisition of the respondent under the provisions of Land Acquisition Act, 1894. Notification under Section 4 was published on 09.01.1980, invoking the provisions of Section 17 (4), inquiry of Section 5-A was dispensed with. Notification under Section 6 was published on 10.01.1980, authorizing the Collector Agra to take possession over the acquired land. In pursuance thereof possession over the acquired land, including the land in dispute was taken on 09.07.1982. Notification under Section 6 was challenged by some tenure holders, including the petitioner in writ petitions before High Court, which were dismissed on 17.01.1983 and Special Leave Petition filed by them were also dismissed on 06.04.1984. After taking possession over the land in dispute, it vested in State of U.P. free from all encumbrances under Section 17 (1) of Land Acquisition Act, 1894. The case was contested by the petitioner on the ground that by an order dated 27.03.1995, passed under Section 143 of U.P. Act No. 1 of 1951, declaring the land in dispute as abadi as such Revenue Court has no jurisdiction to pass any order in respect of the land in dispute as it is no more 'land' as defined under the Act. The petitioner filed a civil suit (registered as O.S. No. 297 of 1984), which was decreed by Additional Civil Judge Agra by judgment dated 12.12.1990 and Civil Appeal No. 27 of 1991 filed by the respondents from the aforesaid decree has been dismissed by judgment dated 09.11.1995. These judgments have become final. The petitioner is in possession over the land in dispute as such his name cannot be deleted. 4. The case was decided by Additional City Magistrate, Agra, who by order dated 30.10.1999 held that the name of the petitioner was recorded over the land in dispute by order dated 12.12.1991. Thereafter the land in dispute was declared as abadi by order dated 27.03.1995 under Section 143 of U.P. Act No. 1 of 1951. From the evidence on record, possession of the petitioner over the land in dispute was proved. Civil Court also found that the petitioner was in possession over the land in dispute since 1978. Such an entry cannot be corrected, in exercise of powers under Section 33/39 of the Act. On these findings the application of the respondent was dismissed by order dated 30.10.1999. 5. The respondent filed a revision (registered as Revision No. 1775 of 1999) from the aforesaid order. The revision was heard by Additional Commissioner, who by order dated 31.07.2002 held that the land in dispute was acquired by notification under Section 4 dated 09.01.1980 and notification under Section 6 dated 10.01.1980. The Collector took possession over the acquired land on 09.07.1982. Acquisition of the land in dispute has been upheld by Supreme Court by order dated 06.04.1984. The order passed under Section 143 of U.P. Act No. 1 of 1951 has been challenged in revision and has not become final. Civil Court merely directed that the petitioner would not be dispossessed except in accordance with law. The Consolidation Officer, by order dated 12.12.1991, mutated the name of the petitioner over it, on the basis of decree of Civil Court. Thereafter by the notification under Section 6 of U.P. Consolidation of Holdings Act, 1953, the consolidation in the village has been canceled. As the land in dispute was already vested in State of U.P. as such the name of the petitioner cannot be recorded over it in the revenue records. Thereafter by the notification under Section 6 of U.P. Consolidation of Holdings Act, 1953, the consolidation in the village has been canceled. As the land in dispute was already vested in State of U.P. as such the name of the petitioner cannot be recorded over it in the revenue records. On these findings the revision was allowed and order of Additional City Magistrate dated 30.10.1999 was set aside and the name of the petitioner was directed to be deleted from the revenue record and the name of the respondents was directed to be recorded over it. The petitioner filed a revision (registered as Revision No. 6 of 2002-03) before Board of Revenue U.P., from the aforesaid order. Board of Revenue U.P. by order dated 10.11.2013 dismissed the revision. Hence this writ petition has been filed with the delay of 8 years 99 days. 6. The counsel for the petitioner submitted that Board of Revenue U.P. dismissed the revision, by a cryptic order without considering the various grounds raised in the revision. For deciding the proceedings under Section 33/39 of U.P. Land Revenue Act, 1901, possession is the basis but no findings has been recorded in respect of the possession over the land in dispute. Additional City Magistrate as well as civil court found that the petitioner was in possession of the land in dispute, this finding was not reversed. In the proceedings under Land Acquisition Act, 1894, actual possession on the spot was not taken as such the petitioners through out remained in possession over it. The name of the petitioner was recorded by the order of Consolidation Officer, on the basis of judgments of Civil Court as such entry cannot be deleted in the proceeding under Section 33/39 of the Act. 7. I have considered the arguments of counsels for the parties and examined the record. Admittedly, the land in dispute was acquired by State of U.P. on the requisition of the respondent under the provisions of Land Acquisition Act, 1894. Notification under Section 4 was published on 09.01.1980, invoking the provisions of Section 17 (4), inquiry of Section 5-A was dispensed with. Notification under Section 6 was published on 10.01.1980, authorizing the Collector Agra to take possession over the acquired land. In pursuance thereof possession over the acquired land, including the land in dispute was taken on 09.07.1982. Notification under Section 4 was published on 09.01.1980, invoking the provisions of Section 17 (4), inquiry of Section 5-A was dispensed with. Notification under Section 6 was published on 10.01.1980, authorizing the Collector Agra to take possession over the acquired land. In pursuance thereof possession over the acquired land, including the land in dispute was taken on 09.07.1982. After taking possession over the land in dispute, it vested in State of U.P. free from all encumbrances under Section 17 (1) of Land Acquisition Act, 1894. Notification under Section 6 was challenged by some tenure holders, including the petitioner in writ petitions before High Court, which were dismissed on 17.01.1983 and Special Leave Petitions filed by them were also dismissed on 06.04.1984. Before Supreme Court the petitioner gave up his claim in respect of plot 134. It has been consistently held by Supreme Court that Land Acquisition Act, 1894 is a complete code and by necessary implication jurisdiction of civil court is excluded. See State of Mizoram Vs. Baikchhawna, (1995) 1 SCC 156 , State of Bihar Vs. Dhirendra Kumar, AIR 1995 SC 1955 , Laxmi Chand Vs. Gram Panchayat Kairana, AIR 1996 SC 523 , S.P. Subraminiyam Shetti Vs. Karnataka State Road Transport Corporation, AIR 1997 SC 2076 , Commissioner Banglore Development Authority Vs. K.S. Narain, AIR 2006 SC 3379 and Monohar Joshi Vs. State of Maharashtra, (2012) 3 SCC 619 . 8. Thus in view of the aforesaid judgments, Civil Court has no jurisdiction to grant injunction to the petitioner, after the acquisition having been approved by Supreme Court. Issue relating to possession is also barred by res-judicata in view of Explanation IV to Section 11 C.P.C. The petitioner cannot raise this issue after judgment of Supreme Court, as this issue ought to have been raised by the petitioner in the previous writ petition or before the Supreme Court. The petitioner cannot be permitted to say that he remained in possession over the land in dispute and the report of Collector for taking possession is incorrect. Otherwise also Civil Court merely granted injunction in terms that the petitioner shall not be dispossessed except in accordance of law. Dispossession of the petitioner according the provisions of Land Acquisition Act, 1894, does not violate the civil court decree. 9. Otherwise also Civil Court merely granted injunction in terms that the petitioner shall not be dispossessed except in accordance of law. Dispossession of the petitioner according the provisions of Land Acquisition Act, 1894, does not violate the civil court decree. 9. Additional Commissioner found that after acquisition of the land, the name of the petitioner was recorded by Consolidation Officer, by order dated 12.12.1991, on the basis of decree of Civil Court. Thereafter by the notification under Section 6 of U.P. Consolidation of Holdings Act, 1953, the consolidation in the village has been canceled. The order of Consolidation Officer was not final and cannot be given effect to. As the land in dispute was already vested in State of U.P. as such the name of the petitioner cannot be recorded in the revenue records. Such an entry is unauthorized entry and can be corrected in exercise of powers under Section 33/39 of the Act. In any case, the petitioner has no right over the land in dispute. Even if, after taking possession by the Collector on 09.07.1982, the petitioner re-occupied the land in dispute, his possession is a possession of rank trespasser and cannot be regarded for the purposes of the proceedings under the Act, as after amendment of Section 210 of U.P. Act No. 1 of 1951, no title can be claimed over State land on the basis of possession. 10. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.