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2015 DIGILAW 385 (ALL)

Yagya Narain Jaiswal v. State of U. P.

2015-02-25

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Rajeev Misra, for the petitioners and Standing Counsel, for State of U.P. and Sri R.B. Yadav, Standing Counsel for Gram Panchayat and Sri Ashok Kumar Singh, Counsel for the objector. This writ petition has been filed against the order of In-charge District Magistrate dated 12.11.2014, directing the petitioners to remove constructions from plot 25-M (area 0.164 hectare) of village Chak Sunderpur, tahsil Gyan-pur, district Sant Ravidas Nagar Bhadohi, before 17.11.2014, failing which, same would be removed by force, on the ground that plot 25-M (area 0.164 hectare) of village Chak Sunderpur is talab land. 2. In khata 00169 of khatauni 1416 F-to 1421 F, plots 25/1 (area 5322 hectare) and 25/3 (area 0.125 hectare) along with other plots were recorded as talab land, in khata 00175, 25-M (area 0.164 hectare), 48/1 (area 0.089 hectare) and 48/3 (area 0.283 hectare) along with other plots were recorded as abadi, class-6(2) and in khata 67, plot 25/2 (area 0.379 hectare) was recorded as bhumidhari holding of Mustaq Ali and others. It is alleged that on the spot plot 25 is adjacent to plot 48 in its northern side. The petitioners claim that Land Management Committee of the village has granted patta of plot 48 (area 1 biswa) on 17.10.1980 and vide resolution dated 43.1993, regularized their possession over plots 47-M (area 0-3-17 bigha) and 25-M (area 0-0-13 bigha) on payment of  Rs. 41,000/-. The resolution was approved by Sub-Divisional Officer on 11.5.1993, thereafter, the petitioners deposited the aforesaid amount on 3.7.1993. The petitioners have raised constructions and are in possession over the aforesaid land since then. The proceedings under section 122-B of U.P. Act No. 1 of 1951 initiated against them were dropped time to time. The petitioners filed Civil Suit No. 294 of 1991, against State of U.P. and Gaon Sabha, for permanent injunction, which was decreed on 20.11.2004. The proceeding for cancellation of patta of the petitioners under section 198(4) of U.P. Act No. 1 of 1951, was dropped on 30.6.2007. 3. One Om Prakash Verma filed a writ petition (PIL) i.e. Civil Misc. The petitioners filed Civil Suit No. 294 of 1991, against State of U.P. and Gaon Sabha, for permanent injunction, which was decreed on 20.11.2004. The proceeding for cancellation of patta of the petitioners under section 198(4) of U.P. Act No. 1 of 1951, was dropped on 30.6.2007. 3. One Om Prakash Verma filed a writ petition (PIL) i.e. Civil Misc. Writ Petition No. 6472 (M/B) of 2012, for mandamus directing for ejectment of unauthorized occupants and restoring/maintaining talab land in U.P. In which vide order dated 7.8.2012, direction has been issued to State Government to constitute State/District Level Committees for the purposes of restoring talab land in U.P. as they existed on 1.7.1952. Om Prakash filed an application before Collector Bhadohi for removing encroachments from plot 25 of village Chak Sunderpur. Thereafter, he filed a writ petition (CMWP No. 3074 of 2014) for mandamus to District Level Committee, Bhadohi to remove encroachment from plot 25 of village Chak Sunderpur, which was disposed of, by order dated 20.1.2014 directing to decide application of Om Prakash. Thereafter, he filed Contempt Application (Civil) No. 5453 of 2014, in which notices have been issued to district authorities. 4. District Level Committee, Bhadohi constituted a team of Revenue Inspector and three Lekhpals for conducting a survey and submit report relating to encroachment over talab land of plot 25. This team conducted a survey and submitted its report dated 16.4.2014, mentioning therein that against 14 unauthorized occupants of plot 25, proceeding under section 122-B of U.P. Act No. 1 of 1951 had been initiated and order of their ejectment had been passed, while ten more persons (including the petitioners) were found in illegal occupation. It has been further mentioned that area of plot 25 was recorded as 23.13.13 bigha in settlement record while in the map its area has been shown as 26.15.02 bigha. Thus in the map 3-1-9 bigha more area has been shown. It has been further mentioned that area of plot 25 was recorded as 23.13.13 bigha in settlement record while in the map its area has been shown as 26.15.02 bigha. Thus in the map 3-1-9 bigha more area has been shown. It may be mentioned that Suresh Chand, against whom order of ejectment has been passed in the proceeding under section 122-B of U.P. Act No. 1 of 1951, filed an application for correction of the map of plot 25, in which also a survey report was submitted by the revenue authorities dated 3.5.2014, showing for correction of the map under section 28 of U.P. Land Revenue Act, 1901 but Additional Collector by order dated 16.10.2014, dismissed the application on the ground that proceeding for correction of map can be initiated by land holder only. A revision filed by Suresh Chand against the aforesaid order is pending before Commissioner. On the basis of report dated 16.4.2014, impugned order/notice dated 14.11.2014 has been issued against the petitioners. Hence, this writ petition has been filed. 5. The Counsel for the petitioners submitted that Land Management Committee of the village has granted patta of plot 48 (area 1 biswa) on 17.10.1980 and vide resolution dated 4.3.1993, regularized their possession over plots 47-M (area 0-3-17 bigha) and 25-M (area 0-0-13 bigha) on payment of  Rs. 41,000/-. The resolution was approved by Sub-Divisional Officer on 11.5.1993. Thereafter, they deposited the aforesaid amount on 3.7.1993. The petitioners are in possession of the aforesaid land since then and proceedings initiated against them under section 122-B of U.P. Act No. 1 of 1951 were dropped on 30.3.1996 and on 30.5.2006. Civil Suit No. 294 of 1991 filed by the petitioners against State of U.P. and Gaon Sabha, for permanent injunction was decreed on 20.11.2004. The proceeding for cancellation of patta under section 198(4) of U.P. Act No. 1 of 1951, initiated against them was also dropped on 30.6.2007. The petitioners are not illegal occupants but a valid allottee, they are not liable for ejectment and their construction cannot be demolished in such a manner. In khata 00175, of khatauni 1416 F-1421 F, 25-M (area 0.164 hectare), 48/1 (area 0.089 hectare) and 48/3 (area 0.283 hectare) along with other plots were recorded as abadi class-6(2). The petitioners are not illegal occupants but a valid allottee, they are not liable for ejectment and their construction cannot be demolished in such a manner. In khata 00175, of khatauni 1416 F-1421 F, 25-M (area 0.164 hectare), 48/1 (area 0.089 hectare) and 48/3 (area 0.283 hectare) along with other plots were recorded as abadi class-6(2). From own report of joint team dated 16.04.2014, map of plot 25 was not correctly prepared, in which an excess area of 3-1-9 bigha has been shown. Admittedly plot 48, which is abadi land situates in south of plot 25. In such circumstances, no order of ejectment/demolition can be passed on the basis of incorrect map as well as without actual demarcation and fixation of boundary of abadi plot and talab plot. The Collector is not ready to prepare the correct map. Impugned order is illegal and liable to be set aside. 6. I have considered the arguments of the Counsel for the parties and examined the record. Supreme Court in Hindi Lal Tiwari v. Kamla Devi, 2001 (92) RD 689 (SC) held that it is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond if falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. In Jag-pal Singh v. State of Punjab, 2011 (85) ALR 500 (SC) Apex Court directed all the State Governments in the country to prepare schemes for eviction of illegal/unauthorized occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India were directed to do the needful, taking the help of other senior officers of the Governments. For this purpose the Chief Secretaries of all State Governments/Union Territories in India were directed to do the needful, taking the help of other senior officers of the Governments. It has also been held that long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Following aforesaid directions. Division Bench of this Court in Om Prakash Verma (supra) directed the State Government to constitute State/District Level Committees to restore tanks as they existed on 1.7.1952. Thus the action taken by District Level Committee is in consonance with the directions of this Court and Apex Court. 7. Now other questions raised by the Counsel for the petitioners that the petitioners were valid allottee of Gaon Sabha land and the proceeding for cancellation of their patta was dropped. Their possession cannot be treated as illegal occupation. Civil Court has also granted injunction in favour of the petitioners as such they cannot be ejected in such a manner by administrative order, are concerned, Talab land is covered under the categories of the land as mentioned under section 132 of U.P. Act No. 1 of 1951 as such, no right (except asami right for a period of 5 years only, on the basis of valid patta executed by Land Management Committee) can accrue to any person over it. As such on the basis of patta, the petitioners can claim right of possession as an asami for a period of five years only. Division Bench of this Court in Writ C No. 54062 of 2013 (Jagat Narain and others v. State of UP and others) decided on 9.2.2015 held that Land Management Committee could not regularize illegal occupation of any person over such land, by taking money from them. Supreme Court in Sajjadanashin v. Nazudala, (2000) 3 SCC 350 , Gram Panchayat v. Ujagir Singh,2001 (92) RD 53(SC), Williams v. Lourdusamy, 2008 (71) ALR 787 (SC) and Haryana State Electricity v. Hanuman Rice (2010) 9 SCC 145 , held that judgment of Civil Court in respect of land in injunction suit will not operate as res-judicata. Supreme Court in Sajjadanashin v. Nazudala, (2000) 3 SCC 350 , Gram Panchayat v. Ujagir Singh,2001 (92) RD 53(SC), Williams v. Lourdusamy, 2008 (71) ALR 787 (SC) and Haryana State Electricity v. Hanuman Rice (2010) 9 SCC 145 , held that judgment of Civil Court in respect of land in injunction suit will not operate as res-judicata. Thus Civil Court decree can not provide any protection to the petitioners as they could have no right to retain their possession over talab land, which are being restored in compliance of direction of Apex Court. 8. Tank land as it existed on 1.7.1952 has to be restored. Thus District Level Committee has to determine the area and location of tank land as on 1.7.1952. A perusal of the various papers attached to the writ petition shows that the respondents are proceeding on the basis of khatauni 1416-F-1421-F, although they are required to decide the area and location of tank land on the basis of khatauni 1359-F. Similarly, boundary dispute between two plots i.e. plot 25, which is talab land and plot 48, which is abadi land has also required to be determined. Without deciding the boundary dispute, it is not possible to hold that any person is in illegal occupation of talab land. It has also to be decided as to how an area of 0.164 hectare of plot 25-M was recorded as abadi land, in khatauni 1416 F-1421F although remaining area is talab land. 9. So far as correction of map is concerned, section 28 of U.P. Land Revenue Act, 1901 provides for correction of map. In view of section 27(2) of U.P. Consolidation of Holdings Act, 1953, even the final maps prepared during consolidation operation can also be corrected under section 28 of U.P. Land Revenue Act, 1901, which is quoted below Section 28.--Maintenance of map and field book.--The Collector shall in accordance with rules made under section 234maintain a map and field book of each village in his district and shall cause annually, or at such longer intervals as the State Government may prescribe, to be recorded therein all changes in the boundaries of each village or field and shall correct any errors which are shown to have been made in such map or field book. 10. Division Bench of this Court in Gafoor v. Addl. 10. Division Bench of this Court in Gafoor v. Addl. Commissioner 1978 AWC 836 (D.B.) and Single Judge in Jan Hit Karidi Samiti v. Board of Revenue 1999 (90) RD 366 , held section 28 of U.P. Land Revenue Act, 1901 casts a duty upon the Collector to correct the map. The map is a record of right, the Collector cannot maintain incorrect map. Aforesaid cases were not placed before Hon'ble Single Judge in Ram Adhar v. Additional Commissioner 2014 (122) RD 443, as such a contradictory view has been taken, which is per-incuriam. Section 28 read with Chapter V of Land Records Manual U.P. make it clear that correction in map is required to be done by revenue authorities who are responsible to maintain it. The application moved by any interested person can be treated to be notice for correction. 11. In this case, joint team submitted a report dated 16.4.2014 showing that map of plot 25 was not correctly prepared. As this plot situate on the boundary of the village as such in case, in survey, boundary of two villages is also found as incorrect, then Land Management Committee of other village and plot holders are also required to be heard. In such circumstances, the Collector may decide first the actual area of pond of plot 25 as on 1.7.1952 on the basis of records of 1359-F and initiate proceeding for correction of map of the pond. Then on the basis of corrected map, he shall fix boundary of the pond after making survey and hearing the parties and men pass order of ejectment of the unauthorized occupants from it. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The order of In-charge District Magistrate dated 12.11.2014 is set aside. As held above, the Collector may decide first the actual area of pond on 1.7.1952 on the basis of records of 1359-F and initiate proceeding for correction of map of the pond. Then on the basis of corrected map, he shall fix boundary of the pond after making survey and hearing the affected parties and then take proceedings for ejectment of unauthorized occupants. During all these proceedings, in order to avoid any hindrance, he shall provide opportunity of hearing to all the interested persons.