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2016 DIGILAW 210 (UTT)

Nagar Palika Parishad, Jaspur v. Sunder

2016-05-10

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. Before entering into the real controversy involved in this case, it would be pertinent to mention the backdrop of this petition depicting the earlier adjudications made in the matter at different levels hitherto. The respondents no. 1 to 9, adverted in the array of parties, were the plaintiffs, who initiated the revenue case no. 22/29 of the year 2002-03 on 24.12.2002 under Section 229B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called as the ‘Act’) seeking to declare their rights on the land in question as bhumidhars with transferable rights. Such case was brought against the State Government as well as the Gram Sabha, Jaspur represented through its Secretary at that time. The defendants resisted such suit, and after rendering the opportunity to parties to adduce their documentary as well as oral testimony and then further hearing the arguments, the learned Assistant Collector/Sub Divisional Magistrate, Kashipur, District Udham Singh Nagar decreed such case on 30.1.2003 with the result that the land bearing Khasra No. 96, area 0.437 hectare and Khasra No. 102Ga, area 1.214 hectare, total area 1.651 hectare were declared to be bhumidhari with transferable rights in nature in the name of plaintiffs (respondents 1 to 9 herein). He, accordingly, issued the directions to the concerned revenue officials that the names of aforementioned plaintiffs be recorded as bhumidhars with transferable rights instead of Aasami of Class III. This order was challenged by Nagar Palika, Jaspur by way of filing the Appeal No. 54/2002-03 and such appeal was filed on 12.6.2003 with the delay of 42 days, but to meet out the shortcoming a delay condonation application was moved under Section 5 of the Limitation Act. That apart, the State also filed an appeal on 4.6.2003 challenging the same judgment of the Sub Divisional Magistrate. The Divisional Commissioner of Kumaon passed the order on 16.6.2003 consolidating both the aforementioned appeals and also restrained all concerned from raising any construction on such land nay executing any sale deed/deeds pertaining to such land. It seems that the later on the matter was made over to the Additional Commissioner, who heard all the parties and passed a very short order of only 2-3 lines on 25.9.2003, thereby condoning the delay in the interest of justice. Appeal thus was admitted for hearing. It seems that the later on the matter was made over to the Additional Commissioner, who heard all the parties and passed a very short order of only 2-3 lines on 25.9.2003, thereby condoning the delay in the interest of justice. Appeal thus was admitted for hearing. Meanwhile, the land in question was sold by the plaintiffs (since they had become the bhumidhars with transferable rights) to one Mr. Rana Pratap Singh and the sale deed was, accordingly, executed on 31.3.2003. So, two revisions were preferred challenging the order dated 25.9.2003. Revision No. 173/174-2003 was preferred by Sunder (plaintiff no. 1 in the suit) and the Revision No. 179-180/03 was filed by Mr. Rana Pratap Singh, the purchaser of the land. Such revisions were heard on merits by the Additional Chief Revenue Commissioner, Kumaon and vide his detailed judgment dated 13.1.2004, he allowed the same and set aside the order dated 25.9.2003. Thus, the revisions stood allowed. Feeling aggrieved, Nagar Palika, Jaspur filed two writ petitions in the High Court. Such writ petitions no. 143 (M/S) of 2004 and 141 (M/S) of 2004 were filed against Mr. Rana Pratap Singh as well as Sunder and others and the same were adjudicated by a coordinate Bench of this Court vide judgment dated 7.10.2005, whereby both the petitions were allowed and the matter was remitted back to the appellate court i.e. the Court of Divisional Commissioner. It was observed that the petitioner would satisfy the appellate court that it is an aggrieved party and the application under Section 5 of the Limitation Act shall also be considered on merits. Thus, the judgment passed by the Additional Chief Revenue Commissioner dated 13.1.2004 was quashed. Accordingly, the matter again came before the Divisional Commissioner and it was decided afresh as per the directions of High Court. Vide the judgment and order dated 1.5.2007 (impugned), the appellate court rejected the application under Section 5 of the Limitation Act and also dismissed the appeal of Nagar Palika Parishad. It is this judgment, which has been assailed under Article 227 of the Constitution of India before this Court. Vide the judgment and order dated 1.5.2007 (impugned), the appellate court rejected the application under Section 5 of the Limitation Act and also dismissed the appeal of Nagar Palika Parishad. It is this judgment, which has been assailed under Article 227 of the Constitution of India before this Court. At the outset, it would not be irrelevant to mention that the petitioner, instead of availing the statutory remedy of filing second appeal as envisaged under Section 331(4) of the Act, has invoked the constitutional remedy before this Court to skirt its own failure, which can be displayed herein below. The impugned judgment was rendered by the Additional Commissioner, Kumaon Division, Nainital on 1.5.2007 on the appeal preferred by Nagar Palika Parishad, Jaspur and the second appeal whereagainst could have been filed, as envisaged under Section 331(4) of the Act, in the Court of Chief Revenue Commissioner or before the Board of Revenue, as the case may be, within the time limitation of three months from the date the appellant had knowledge of passing the judgment. Since the impugned judgment was passed after hearing the arguments of learned Counsel of Nagar Palika and the pronouncement of such judgment was well within the knowledge of this statutory body on the date it was so pronounced, but this Nagar Palika slept over the matter for the reasons best known to it and did not prefer any appeal, as indicated above, and the statutory period of limitation expired. Almost 40 days of expiry of such limitation, it applied for the certified copy on 10.9.2007, which was prepared and delivered to the officer of Nagar Palika on the same day. Then this petition could be filed on 17.9.2007. This way, the Nagar Palika filed this petition after four months and seventeen days of pronouncement of the impugned judgment. The fact remains that the appeal could have been preferred under the statutory provisions, but Nagar Palika and its authorities failed to exercise this right. Then this petition could be filed on 17.9.2007. This way, the Nagar Palika filed this petition after four months and seventeen days of pronouncement of the impugned judgment. The fact remains that the appeal could have been preferred under the statutory provisions, but Nagar Palika and its authorities failed to exercise this right. So, in order to cover up its failure on such score, it has invoked the powers of the Court under Article 227 of the Constitution of India which is impermissible in the light of the facts aforementioned because the Constituent Assembly while enacting Article 227 of the Constitution would never have contemplated that to patch up the shortcomings and failures on the part of any person, he shall be at liberty to knock the door of the High Court under this Article. Hon’ble Apex Court in the case of Himalayan Coop. Group Housing Society v. Balwan Singh & Others, reported in (2015) 7 SCC 373 , has held that exercise of supervisory jurisdiction under Article 227 should be observed mindfully, or else it would open the floodgates of litigations. Likewise, in another case Sameer & Another v. Abdul Rab & Others, (2015) 1 SCC 379 , it was held by the Hon’ble Apex Court that where the statutory appeal would lie under the Civil Procedure Code, then the petition under Article 227 is not maintainable. Of late, the Hon’ble Supreme Court, though in a criminal matter, State (NCT of Delhi) v. Shiv Kumar Yadav & Another, (2016) 2 SCC 402 , has held – Power of judicial superintendence under Article 227 has to be exercised sparingly, when there is patent error or gross injustice in view taken by a subordinate court. If the judgment of such subordinate court is overturned, then finding to that effect has to be supported by reasons. If the judgment of such subordinate court is overturned, then finding to that effect has to be supported by reasons. In view of what has been set forth above, the fact remains that powers of judicial superintendence, as pondered under Article 227 of the Constitution, are akin to Section 115 of the Civil Procedure Code which adumbrates the powers of the High Court to exercise the revisional jurisdiction against the decision rendered by a subordinate court and such provision makes it clear that in exercise of revisional powers, the High Court, where no appeal lies to a decision and if such subordinate court appears to have exercised a jurisdiction not vested in it by law, or have failed to exercise a jurisdiction so vested, or have acted in the exercise of its jurisdiction illegally or with materially irregularity, then the High Court may make such order in the case as it thinks fit, provided the High Court shall not under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. So, I feel that when the finding of the court below is wholly perverse and against the established principles of law, then only the Court can interfere in exercise of powers under this constitutional provision. It is further pertinent to mention that had Nagar Palika preferred a second appeal before the Board of Revenue, then such appeal could have been entertained to consider only on the substantial question of law, if involved. But here, under the garb of this constitutional provision, Nagar Palika now seeks to reveal all the facts right from the enactment of Zamindari Abolition Act, which is not permissible and this petition is liable to be dismissed on this score alone. However, for the satisfaction of the petitioner, it would be in the interest of justice to highlight certain facts of the controversy persisting between the parties ever since the year 2002. The Zamindari Abolition Act came into operation on 26.1.1951 and under Section 4 of such Act, the estates were vested in the State w.e.f. 1.7.1952 when the notification was passed in this regard. By virtue of Section 6 of such Act, every tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melas were vested in the State of Uttar Pradesh free from all encumbrances. By virtue of Section 6 of such Act, every tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melas were vested in the State of Uttar Pradesh free from all encumbrances. Section 117 of the Act provides that the tanks, ponds, private ferries, pathways and abadi sites, which had vested in the State under this Act, shall vest in the Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate or partly in one such local authority and partly in another. It was also provided in this Section 117 that all lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove, shall also vest in the Gaon Sabha or any other local authority. Meaning thereby, the land/lands, which was part of any holding or grove, was excepted from this provision and this is the case of the private respondents that the disputed land was part of their holding since before the times of the applicability of the Act itself and they were occupiers of such land without the consent of the person entered in Column 4 of the Khasra as contemplated in the provisions of Chapter A VIII A-124, Part II (9) of U.P. Land Record Manual and this is ratified by Annexure 4 of the counter affidavit filed by Mr. Manoj on behalf of the respondents. This Annexure A4 is the copy of Khatauni of settlement 1368 Fasli i.e. 1961AD. This Khatauni finds the mention that the predecessor-in-interest of the respondents Pooran, S/o Ram Swaroop, and Ram Swaroop, S/o Kanhaiyyi, were the occupiers as Class IX farmers without the permission of the person shown in Column 4 of the Khasra. Even if the case of the petitioner is accepted for a moment that the land, in question, was in the shape of a pond or tank, so it vested in the State Government after the notification issued under Section 4 and then further in the town area of Jaspur after the notification issued on 11.8.1954, then also such case is against the revenue records. Even the notification issued on 11.8.1954 excepts the land which was the part of holding or grove of any person likewise Section 117 of the Act and the predecessors-in-interest of the respondents were recorded as Class IX farmers of such land. Even the notification issued on 11.8.1954 excepts the land which was the part of holding or grove of any person likewise Section 117 of the Act and the predecessors-in-interest of the respondents were recorded as Class IX farmers of such land. Therefore, it was their holding, as envisaged under Section 3(7) of the United Provinces Tenancy Act, 1939. This provisions reads as under: “3.(7) - “holding” means a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure and in the case of a thekadar includes the theka area:” Even if the case of the petitioner is further considered, then also the intention of the Legislature in enacting Section 117 of Act was to vest all such ponds and tanks which were on the barren lands if covered with the water, as envisaged in Chapter A-VIII Para A124, Part I(6) of the U.P. Land Record Manual, and was meant for public utility or purpose. Meaning thereby, if any pond or tank is in the nature of holding of a person, may for the reason of cultivating the water chestnuts or fisheries, then it must not and could not have been vested in the State Government, much less in the Gaon Sabha, town area or the municipality, as the case may be. Tehsildar, Jaspur, under his signature, has verified the report of Lekhpal of the area, namely, Giridhar Singh, ratifying the fact that in the village Jaspur, Patti Uttam, Tehsil Jaspur, District Udham Singh Nagar, there is no barren land covered with water to bring it in Class VI(1), as indicated above, and thus there is no pond on the public land in any of the revenue records. Meaning thereby, if there is any pond or tank or any land covered with water, then it was not a Government land, but the land forming part of the holding of a particular individual and such land could not have been vested in the State Government. This report of Lekhpal Mr. Giridhar Singh, verified by Tehsildar, Jaspur, is Annexure 6 to the counter affidavit filed by the private respondents. Mr. This report of Lekhpal Mr. Giridhar Singh, verified by Tehsildar, Jaspur, is Annexure 6 to the counter affidavit filed by the private respondents. Mr. Akhtar Ali, the Executive Officer of the municipality, while enumerating the brief history of the case in his rejoinder affidavit filed on behalf of municipality by him on 13.11.2011, has stated in paragraph 4 (vii) “That it is true that the land-in-dispute was initially recorded under Shreni 9 in the name of private respondents, but after notification of 1954, the same was recorded as Talab. Further, it is nowhere mentioned in revenue record or in municipal record that by whose order, the land-in-dispute was recorded as a Talab, but presently same is recorded as a Talab and, therefore, the Nagar Palika Parishad Jaspur is its owner.” The Executive Officer has further admitted in paragraph 7 of such affidavit that “…………….it is true that initially the property-in-dispute was recorded in the name of predecessors of the respondent no. 1 to 9 prior to 1368 Fasli but later on the private respondents were not declared as bhumidhar of the land-in-dispute, but in 1379 Fasli year when Jaspur Patti Uttam came under consolidation operation, the land-in-dispute was recorded as Talab but same was not recorded under Shreni 6(1) of land record manual due to the reasons best known to the revenue authorities and only on the basis of this, the respondents are claiming ownership over the land-in-dispute. Since 1379 Fasli year, Nagar Palika Parishad, Jasipur is in physical possession of the property in dispute.” The above admission of the Executive Officer itself demolishes the entire case of the petitioner. The case of the private respondents is that when the consolidation was introduced in the area and after such consolidation, when the description of all lands was recorded in C.H. Form 41, it was found in the settlement before such consolidation that the land was in the nature of Matiyar 3 and they were recorded as Class III farmers. This fact finds support from Annexure A5 enclosed with the counter affidavit of Mr. Manoj, filed on behalf of all the private respondents. This fact finds support from Annexure A5 enclosed with the counter affidavit of Mr. Manoj, filed on behalf of all the private respondents. It has been argued on behalf of the private respondents that under Section 131 of the Act, they would have become the bhumidhars with non-transferable rights after the enactment of the Act and w.e.f. 14.1.1995, when Section 131B was enacted, they became the bhumidhars with transferable rights over the land, in question, and such case has been accepted by both the courts below i.e. the courts of Sub Divisional Magistrate as well as the Additional Commissioner. It would be further pertinent to mention that another Lekhpal Mahipal Singh was examined in the trial court when the case was instituted by the private respondents and it was contested by Gaon Sabha as well as by the State Government. In his cross-examination, he has deposed that on the disputed land, the name of the plaintiffs is continuing since before 1379 Fasli i.e. before consolidation. It is also true that on such disputed land, the plaintiffs are in possession doing their agriculture and no case of eviction was pending against them. It is only the plaintiffs who sow and harvest their crops in the disputed land. On enquiry from other farmers, he had come to know that the possession of the plaintiffs over the disputed land is persisting for the last 35-36 years. In partals also, it is only the plaintiffs, who have been found in possession and doing their agriculture on the disputed land. So this way, the deposition of Lekhpal of the area as well as the Executive Officer of the municipality is sufficient to demolish the case of the petitioner. The case of the petitioner that it was not impleaded, though being the necessary party, before the Sub Divisional Magistrate and thus it could not make out its case before the court below is untenable for the reason that when the case was adjudicated by the learned Sub Divisional Magistrate, such Magistrate himself was the in-charge of municipality w.e.f. 23.3.2002 to 7.2.2003, as has been adverted in the impugned judgment, and the learned Magistrate decreed the case of the plaintiffs on 30.1.2003. So, for the whole period right from institution of the case no. 22/29 up to the time it was decreed, the SDM all throughout remained the in-charge of town area/municipality of Jaspur. So, for the whole period right from institution of the case no. 22/29 up to the time it was decreed, the SDM all throughout remained the in-charge of town area/municipality of Jaspur. Further, the disputed land was not under the ownership of Nagar Palika, even though the State Government and Gaon Sabha were impleaded as party and the case was contested by way of filing the written statement and Mr. Mahipal Singh, Lekhpal of the area, was examined as a witness, not on behalf of the plaintiffs, but as a defence witness. This way, it is difficult to accept that such municipality did not have knowledge of pending of the case. Therefore, filing the appeal before the Additional Commissioner with the delay of 42 days was not condonable and such delay condonation application has rightly been rejected in the impugned judgment as well. All told, I do not find any merit in this petition. It is hereby dismissed with the costs all throughout. It would be quite justified to direct that if the officers/officials of the municipality has taken any forcible possession over the land, in controversy, then they shall quit their possession forthwith from the same so that the private respondents or subsequent purchaser be not deprived from their lawful right to enjoy the fruits of the decree dated 30.1.2003.