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2016 DIGILAW 2460 (ALL)

Raj Kumar Tyagi v. State of U. P.

2016-07-15

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. – Heard learned counsel for the petitioner, Shri Lal Sahab Yadav for the respondent no. 5, Nagar Nigam Ghaziabad, Shri Mahendra Pratap for the respondent no. 4, Ghaziabad Development Authority and learned Standing Counsel for the State-respondents. 2. The writ petition arises out of proceedings under Section 144 of the U.P. Zamindari Abolition and Land Reforms Act and seeks quashing of the order dated 03.08.2013 passed by the Sub Divisional Magistrate/Assistant Collector (Ist Class), Ghaziabad and the order dated 11.05.2015 passed by the Additional Commissioner Meerut, Division Meerut. 3. The dispute in the writ petition pertain to plot no. 285 area 0-4-9 or 0.0560 hectares situated in Village Nasarpur, Pargana Loni, Tehsil & District Ghaziabad. 4. The case of the petitioner is that the total area of plot no. 285 was 9 biswa or 0.1140 hectares. It is alleged that approximately half of this plot or 0.0580 hectares of the land was acquired by means of a notification dated 30th August, 1962 issued under the provisions of the Land Acquisition Act. The remaining area of 0.0560 hectares being abadi of the petitioner was not acquired. The petitioner instituted proceedings under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, wherein vide order dated 18.08.1989, 0.056 hectares of plot no. 285 was declared as abadi. This order was passed in case no. 27 of 1989. It is further alleged that a suit for injunction was filed by the petitioner regarding this plot as and interim injunction was granted. 5. Against the order granting interim injunction, a first appeal for order was filed before this Court by the Ghaziabad Development Authority, which was dismissed on 27.05.2013 on the finding that the Ghaziabad Development Authority had failed to prove that the land in dispute was acquired by the State Government under the Land Acquisition Act. Thereafter, an application under Section 144 of the U.P. Zamindari Abolition and Land Reforms Act on behalf of State Government was filed. 6. The Sub Divisional Magistrate/Assistant Collector allowed the application vide order dated 03.08.2013 finding the order dated 18.08.1989 declaring the land in question to be abadi to be a farzi order as no record of the proceedings was found available in the record room. Subsequently the land in question was ordered to be recorded in the name of Ghaziabad Development Authority/Improvement Trust. Subsequently the land in question was ordered to be recorded in the name of Ghaziabad Development Authority/Improvement Trust. This order has been affirmed vide order dated 11.05.2015, whereby the revision filed by the petitioner was dismissed by the Additional Commissioner. Hence this writ petition. 7. It is admitted by learned counsel for the petitioner that the order in favour of the petitioner passed in proceedings under Section 143 of the Act was passed on 18.08.1989 while the date shown in the Dakhil Daftar Register was 16.08.1989. Since the wrong date namely 16.08.1989 was mentioned while requisitioning the record, the record was not traced out and therefore, nor remitted to the Court and, therefore, it has wrongly been held that the order passed in favour of the petitioner was a farzi order. The submission made is that the entire plot no. 285 was not acquired by the State Government. 8. Elaborating further, it has been submitted that only the notification under Section 4 of the Land Acquisition Act was produced and, therefore, the same was not conclusive that the entire area of plot in question has been acquired. It has additionally been submitted that the interim injunction granted by the Civil Court is operating and this fact was concealed by the Ghaziabad Development Authority. It is lastly submitted that the order dated 18.08.1989 not having been challenged any further the same has become final and the dispute involved in the instant proceedings is a dispute of title. The petitioner was bhumidhar with transferable rights and, therefore, competent to initiate the proceedings under Section 143 of the U.P.Z.A. & L.R. Act. 9. Learned counsel appearing for the respondents have supported the impugned order. 10. I have considered the submissions made by learned counsel for the parties and have perused the record. 11. The primary question for consideration in the writ petition is as to whether the entire 9 biswa area 0.1140 hectares of plot no. 285 situated in Village Nasarpur, Pargana Loni, Tehsil & District Ghaziabad had been acquired by the State Government or not. The notifications issued in this regard in the year 1962- 63 namely the notifications under Section 4, 5A and 17 of the Land Acquisition Act have been produced for perusal of this Court. 12. Such perusal reveals that the total area of plot no. 285 aforementioned was 9 biswa and that the entire area was acquired. The notifications issued in this regard in the year 1962- 63 namely the notifications under Section 4, 5A and 17 of the Land Acquisition Act have been produced for perusal of this Court. 12. Such perusal reveals that the total area of plot no. 285 aforementioned was 9 biswa and that the entire area was acquired. Even the courts below have returned categorical findings that the entire area of plot in question had been acquired and that possession thereof had been obtained by the Improvement Trust. This categorical finding returned in the impugned orders has not been specifically challenged in the writ petition. Even otherwise as noticed above, the notifications under Section 4, 5A and 17, which have been produced by learned Standing Counsel indicate that the entire 9 biswa of the plot no. 285 had been acquired. It is not pleaded by the petitioner nor is established on record that the notification whereby the entire area of plot no. 285 was acquired were subjected to any challenge. 13. In so far as the proceedings under Section 143 of the Act are concerned, they are not required to be initiated by any particular person or the owner of the land in question. A declaration under Section 143 of the Act can be granted suo moto by competent authority. 14. Besides the proceedings under Section 143 of the Act are not title proceedings. The object of these proceedings is to grant a declaration that a particular piece of land is not being raised for agricultural purposes. The claim of the petitioner in this writ petition is based exclusively on this declaration granted at his instance. Although a categorical finding has been returned that this declaration is a forged and fabricated order, yet, even if it is accepted that such declaration was in fact granted, the same would establish title of the petitioner, specially, when the entire area of plot no. 285 is established, by cogent evidence, namely the relevant notification under the Land Acquisition Act to have been acquired by the State in the year 1962-63. 15. 285 is established, by cogent evidence, namely the relevant notification under the Land Acquisition Act to have been acquired by the State in the year 1962-63. 15. The only evidence relied upon by the petitioner to establish his title are the khasras and khataunis of 1416 Fasli and thereafter, these documents are appear to have been prepared on the basis of the declaration under Section 143 of the Act and, therefore, these documents relied upon by the petitioner, do not improve his case in any manner. 16. However, although a finding had been returned that the alleged declaration regarding the land in question issued under Section 143 of the U.P.Z.A. & L.R. Act is farzi and the petitioner has sought to controvert this finding on the ground that the Courts below requisitioned the wrong record. The same in my considered opinion is not adequate. In case the correct record was available, nothing prevented the petitioner from filing documentary evidence in this regard. The petitioner has not filed any documentary evidence to establish that the record of case no. 27 of 1989 under Section 143 of the Act allegedly decided on 18.08.1989 is available in the record room. 17. Besides, it would be relevant to reiterate that a declaration under Section 143 of the Act does not determine the title of any person to the land regarding which such declaration is granted. 18. Since the alleged declaration under Section 143 of the Act has been found to be farzi, the petitioner is not entitled to any benefit under the interim injunction granted in his favour in a civil suit for injunction because any question of title regarding agricultural land is within the jurisdiction of the revenue court alone. 19. The copy of the alleged order dated 18.08.1989 has not been filed by the petitioner. This is another circumstance, which goes against the petitioner especially in view of the finding returned by the courts below that this order is a farzi order. 20. The copy of the plaint of suit no. 1947 of 2012 for permanent injunction filed by the petitioner is available on record. In paragraph 5 of this plaint, it has been averred that the petitioner constructed two rooms and a boundary wall after a portion of plot no. 285 was acquired. 20. The copy of the plaint of suit no. 1947 of 2012 for permanent injunction filed by the petitioner is available on record. In paragraph 5 of this plaint, it has been averred that the petitioner constructed two rooms and a boundary wall after a portion of plot no. 285 was acquired. It is therefore, clear from this admission of the petitioner himself that on the date of acquisition, no construction existed on plot no. 285. This categorical admission also belies the case of the petitioner that only half portion of plot no. 285 was acquired, since the remaining half portion was his abadi. The petitioner has therefore, categorically admitted that the portion which he claims to be his abadi was devoid of any constructions on the date of the acquisition. 21. In such view of the matter and in view of the fact that material has been produced by learned Standing Counsel in the form of notifications under Section 4, 5A and 17 of the Land Acquisition Act which show that the entire 9 biswa or 0.1140 hectares of plot no. 285 had been acquired by the State Government, the petitioner is not entitled to any relief. Once the entire area of plot no. 285 had been acquired and possession of the land acquired having been obtained, only because the petitioner has remained in illegal occupation of a portion of the land, he is not entitled to any benefit of such illegal occupation. 22. In the aforesaid facts and circumstances, I do not find any illegality in the impugned orders, whereby the land in question has been ordered to be recorded in the name of the Ghaziabad Development Authority/Improvement Trust. 23. The writ petition is therefore, wholly devoid of merits and is accordingly dismissed. Petition Dismissed.