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2016 DIGILAW 2713 (ALL)

Raju v. State of U. P.

2016-08-05

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri V.P.S. Kushwaha for the petitioners and Standing Counsel for the respondents. 2. The writ petition has been filed for quashing the order of Sub Divisional Officer dated 12.5.2014, Additional Commissioner dated 10.4.2015 and Board of Revenue, U.P. dated 11.5.2016 passed in the suit under Section 59 of U.P. Tenancy Act, 1939(hereinafter referred to as "the Act"). 3. The petitioners filed a suit (registered as Suit No.32 of 2011) declaring them as tenant of plot no.147, area 0.077 hectare situated within town Kasganj, district Kanshi Ram Nagar. It has been stated by the petitioners that their ancestor Parsadi was in occupation of the land in dispute and after his death Chhattar was in occupation over it. After the death of Chhattar they have inherited the property in dispute, which is situated within the limit of town Kasganj where Zamindari has not been abolished. By making forgery in the revenue record the land in dispute was illegally recorded as slaughter house and rasta. The suit was contested by State of U.P., who filed a written statement in which it has been stated that the land in dispute was acquired on 3.6.1953 for construction of slaughter house and since then slaughter house is constructed over it. On a part of it a tubewell has also been installed. After acquisition of the land in dispute right of the petitioners, if any came to an end. Sub Divisional Officer after hearing the parties by order dated 12.5.2014 found that the land in dispute was acquired under the provision of the Land Acquisition Act, 1895 on 3.6.1953 for construction of slaughter house and since then entry in this respect has been made in the revenue record. The petitioners left with no interest in it. The petitioners challenged the aforesaid order in appeal. Additional Commissioner by order dated 10.2.2014 affirmed the finding of the trial court and dismissed the appeal. The petitioners challenged the aforesaid order in second appeal before Board of Revenue, U.P. Board of Revenue, U.P. by order dated 11.5.2016 dismissed the second appeal. Hence, this writ petition has been filed. 4. I have considered the arguments of the counsel for the parties. 5. The names of the petitioners were recorded in columns 15 of khatuani while name of State of U.P. was recorded as owner of the land in dispute. Hence, this writ petition has been filed. 4. I have considered the arguments of the counsel for the parties. 5. The names of the petitioners were recorded in columns 15 of khatuani while name of State of U.P. was recorded as owner of the land in dispute. Admittedly Zamindari of the area where the land in dispute situated has not been abolished. Column 15, which is applicable in the area where Zamindari has not been abolished, is quoted below: 15. Barren Land. (i) covered with water; (ii) sites, roads, railways, buildings and other lands put to non-agricultural uses; (iii)grave-yards and cremation grounds other than those included in land held by tenants grove-holders, or rent-free grantees or in any grove held by a Zamindar or in the abadi area; (iv) land covered with reh; (v) otherwise barren. At the most the petitioners could have right of non occupancy tenants under Section 31 of the Act over barren land. In view of Section 30 of the Act no hereditary right can accrue to the petitioners over it as held by Division Bench of this Court in Mohd. Jafar vs. State, 2009(108) RD 268. 6. Admittedly, State of U.P. is the owner of the land in dispute as such it is not required to take proceeding under Land Acquisition Act, 1895, for acquiring the land in dispute. At the most it can be said that the petitioners were ejected without filing a suit for ejectment under the Act. Being a non-occupancy tenants, right of the petitioners has been extinguished after ejectment, under Section 45 of the Act. The petitioners have not filed any document to prove their cultivatory possession over the land in dispute for the last 12 years before filing the suit. The suit was filed for declaration of right in the year 2011 although the period for recovery of possession as provided for suit under Section 180 read with Section 183 of the Act is three years. The suit was not filed within limitation as such right of the petitioners, if any, has been extinguished under Section 45 of the Act. 7. The suit was not filed within limitation as such right of the petitioners, if any, has been extinguished under Section 45 of the Act. 7. The counsel for the petitioners relied upon the judgment of Supreme Court in Working Friends Co-operative House Building Society Ltd. vs. State of Punjab and others 2016 (130 ) RD 419 (SC) in which it has been stated that owner of the land is entitled for a fair compensation of the land acquired. He submits that although it is stated that the land has been acquired but no compensation has been given to the petitioners. Therefore, the acquisition is bad. 8. I have considered the argument in this respect also. It is alleged that the land was acquired in the year 1953. The petitioners were non-occupancy tenants while State of U.P. was its owner. Thus, the compensation, which can be given to the petitioners is merely cost of standing crop and nothing else. After about 50 years, it is not possible to assess the compensation of crop. On this ground also, no interference can be made. Since the petitioners being non occupancy tenants their right had already been extinguished and no relief can be granted to them. 9. The writ petition has no merit and it is dismissed.