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2019 DIGILAW 1196 (ALL)

Ravindra Sharma v. State of U. P.

2019-05-06

SIDDHARTHA VARMA

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JUDGMENT : Siddhartha Varma, J. Upon a Public Interest Litigation being filed by the respondent no.7-Narendra Sharma, alleging that the petitioners along with a few other individuals had encroached upon a Gaon Sabha land situate over plot no.348 area 4 bighas and 1 biswa of village Nithari @ Suthari, Pargana and Tehsil Dadri, District Gautam Budh Nagar, an order was passed on 11.7.2016 which is reproduced below : "Rejoinder affidavit, filed today, is taken on record. This Public Interest Litigation has been filed making a grievance that 12.1 Bighas of land allotted to the Gram Sabha was resumed by the State Government partially i.e. to the extent of 8 Bighas only while remaining 4 Bighas and 1 Biswa of land continued to be the property of the Gram Sabha. It is then stated that out of 8 Bighas of land, which was resumed by the State Government, the name of NOIDA was mutated in the revenue records while in respect of remaining 4 Bighas and 1 Biswa of land, which has been resumed by the State Government, the Gram Pradhan of the concerned village has executed a sale deed in favour of his sons. It is then contended that even in respect of the land, which has been resumed illegally, unauthorized constructions have been raised because of the collusion of the officers of NOIDA. We, in the facts and circumstances of the case are of the opinion that issues with regard to the execution of land, land resumed, used, unauthorized occupation of such resumed land by private persons, correctness or otherwise of the gift deed executed by the Pradhan of the Gram Sabha in favour of his sons are all matters, which need to be examined by the District Magistrate at the first instance. Accordingly, the present writ petition is being disposed of by providing that the petitioner may make a representation ventilating all his grievances, supported by such documents as may be advised before the District Magistrate, Gautam Budh Nagar, within two weeks from today, along with a certified copy of this order. On such representation being made, the District Magistrate, Gautam Budh Nagar shall consider and decide the same strictly in accordance with law by means of a reasoned and speaking order preferably within eight weeks from the date the representation is made, after affording opportunity of hearing to the persons occupying the land in question. On such representation being made, the District Magistrate, Gautam Budh Nagar shall consider and decide the same strictly in accordance with law by means of a reasoned and speaking order preferably within eight weeks from the date the representation is made, after affording opportunity of hearing to the persons occupying the land in question. It goes without saying that every attempt may be made to protect the land of Gram Sabha as well as the land, which has been resumed by the State Government and unauthorized occupants must be removed without any further delay." 2. Consequently, the District Magistrate, Gautam Budh Nagar issued notices to the petitioners and the others who had allegedly encroached upon plot no.348 and an order was passed on 19.3.2018 by which the District Magistrate directed the Tehsildar, Dadri, District Gautam Budh Nagar to take action against the petitioners and the other alleged encroachers under section 67 of the U.P. Revenue Code, 2006 (the Code) . Thereafter, notices were also issued to the petitioners on Forms-19 and 20. Aggrieved by the order dated 19.3.2018 the instant writ petition has been filed. 3. The submissions which were raised by the learned counsel for the petitioners were as follows : (i) On the date when the village was notified under section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (1950 Act), the village in question was in occupation of the petitioners and various other villagers and they had built their permanent structures and, therefore, under section 9 of the 1950 Act, the site had been settled upon them and, therefore, the learned counsel for the petitioners submits that the land was no longer a Gaon Sabha land and no proceeding under section 67 of the Code could have been initiated. This fact, learned counsel states, that the petitioners were in occupation after building their abadi over the plot/area in question would be clear from the revenue records of the year 1356 Fasli and onwards. (ii) Learned counsel further submits that when the village was notified under the Uttar Pradesh Industrial Area Development Act, 1976 (1976 Act) on 17.4.1976, the name of the petitioners' village found place at Serial No.15 in the notification along with 37 other villages and thereafter an effort was made to acquire the various plots of the various villages. (ii) Learned counsel further submits that when the village was notified under the Uttar Pradesh Industrial Area Development Act, 1976 (1976 Act) on 17.4.1976, the name of the petitioners' village found place at Serial No.15 in the notification along with 37 other villages and thereafter an effort was made to acquire the various plots of the various villages. Certain plots were acquired by acquisition and certain other plots which were of the Gaon Sabha were sought to be resumed by the State Government for giving it to the Industrial Development Area. On 1.6.1978, the State of Uttar Pradesh resumed 81.030 bighas of the Gaon Sabha land which formed a part of the portion of the area which was declared an Industrial Development Area. From the plot no.348 situate in village Nithari @ Suthari, Pargana and Tehsil Dadri, District Gautam Budh Nagar, an area of 12 bighas and 1 biswa of the land was resumed. However, at the time of delivery of possession, the New Okhla Industrial Development Authority made an inquiry and reported on 4.9.1985 that an area of 4 bighas and 1 biswa of the land comprised in plot no.348 had a dense abadi and, therefore, could not be taken over. Learned counsel, therefore, submits that initially when on the date of vesting, the petitioners had become owners of the land over which they had built their buildings, then that land could not have been even resumed by the State Government as it did not belong to the Goan Sabha and, therefore, rightly the New Okhla Industrial Development Authority did not take possession of the land over which the petitioners along with other villagers were in possession. (iii) Learned counsel further submits that thereafter various industrial developments took place in the area which were notified as Industrial Development Area on 17.4.1976 and the industrial development reached such a stage that there was no village anywhere in existence and, therefore, the Governor of the State of Uttar Pradesh on 24.12.2001, exercising his powers under Article 243-Q of the Constitution of India, declared the area, which was declared as an industrial area on 17.4.1976, to be an "industrial township". Learned counsel submits that thereafter by operation of law, the Gaon Sabha ceased to exist as was provided under section 12-A of the 1976 Act. Learned counsel submits that thereafter by operation of law, the Gaon Sabha ceased to exist as was provided under section 12-A of the 1976 Act. Since the learned counsel for the petitioners has brought to the notice of the Court Article 243-Q of the Constitution of India and Section 12-A of the 1976 Act, they are being reproduced here as under : "243-Q. Constitution of Municipalities.--(1) There shall be constituted in every State,-- (a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area; (b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part: Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township. (2) In this article, "a transitional area", "a smaller urban area" or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part." .................... "12-A. No panchayat for industrial township.--Notwithstanding anything contained to the contrary in any Uttar Pradesh Act, where an industrial development area or any part thereof is specified to be an industrial township under the proviso to clause (1) of Article 243-Q of the Constitution, such industrial development area or part thereof, if included in a Panchayat area, shall, with effect from the date of notification made under the said proviso, stand excluded from such Panchayat area and no Panchayat shall be constituted for such industrial development area or part thereof under the United Provinces Panchayat Raj Act, 1947 or the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, as the case may be, and any Panchayat constituted for such industrial development area or part thereof before the date of such notification shall cease to exist. Explanation.--The expression "Panchayat and Panchayat area" shall have the meanings respectively assigned to them in Part IX of the Constitution." 4. Learned counsel for the petitioners submitted that the Gaon Sabha could have existed only if it had functions to perform. A Gaon Sabha had various duties to perform only at a place where there was a village. When there was no village now in existence and, therefore, the Governor of the State of Uttar Pradesh had taken cognizance of the fact and had declared the whole area to be an industrial township there was no purpose of maintaining a Gaon Sabha and, therefore, definitely the identity of the Gaon Sabha was wiped-out. Learned counsel for the petitioners, in this regard, has relied upon a decision of the Supreme Court in Saij Gram Panchayat Vs. State of Gujarat & Ors., (1999) AIR SC 826 and specifically relied on paragraph 16 of it, and, therefore, the same is being reproduced here as under : "The contention is based on a misconception about the relationship of the provisions of Parts IX and IXA of the Constitution with any legislation pertaining to industrial development. The Gujarat Industrial Development Act operates in a totally different sphere from Parts IX and IXA of the Constitution as well as the Gujarat Panchayats Act, 1961 and the Gujarat Municipalities Act, 1962 - the latter being provisions dealing with local self Government while the former being an Act for industrial development, and orderly establishment and organisation of industries in a State. The industrial areas which have been notified under Section 16 of the Gujarat Industrial Development Act on 7.9.1993 were notified as industrial areas under the Gujarat Industrial Development Act long back in the year 1972. These industrial areas have been developed by the Gujarat Industrial Development Corporation and they can hardly be looked upon as rural areas covered by Part IX of the Constitution. It is only such industrial areas which can be notified under Section 16 of the Gujarat Industrial Development Act, 1963. If by a notification issued under Section 16, these industrial areas are deemed to be notified areas under the Gujarat Municipalities Act and are equated with industrial townships under the proviso to Cl. (1) of Article 243Q, the constitutional scheme is not violated. In fact, under Chapter 3 of the Gujarat Industrial Development Act, 1962, the Gujarat Industrial Development Corporation has been given power, inter alia, to develop land for the purpose of facilitating the location of industries and commercial centres. It has also been given the power to provide amenities and common facilities in such areas including provision of roads, lighting, water supply, drainage facilities and so on. It may do this either jointly with Government or local authorities or on an agency basis in furtherance of the purposes for which the corporation is established. The industrial area thus has separate provision for Municipal services being provided by the Industrial Development Corporation. Once such an area is a deemed notified area under the Gujarat Municipalities Act, 1964, it is equated with an industrial township under Part IXA of the Constitution, where municipal services may be provided by industries. We do not see any violation of a constitutional provision in this scheme." 5. In that case the Supreme Court had found that such areas which did not require to be governed by local self Governments under the municipalities etc. as they had become industrial townships and were required to be governed by Authorities which were specialized in dealing with the industrial areas then the Municipal Authorities etc. had to be removed and that those areas had to be thereafter governed by the Authorities specially established for that purpose. as they had become industrial townships and were required to be governed by Authorities which were specialized in dealing with the industrial areas then the Municipal Authorities etc. had to be removed and that those areas had to be thereafter governed by the Authorities specially established for that purpose. Learned counsel for the petitioners, therefore, submits that when by operation of law, the Gaon Sabha itself was no longer in existence, then it also had no property of its own and further when the Gaon Sabha was not to be found then no question arose for referring the matter to the Revenue Authorities to take action under section 67 of the Code. (iv) Further, learned counsel for the petitioners submits that the revenue entries are there only for the purposes of taxation and no rights are bestowed on any individual on account of any revenue entries and, therefore, if the plot in question was entered as a Banjar in the revenue records, it did not mean that it belonged to the Gaon Sabha specially when the identity of the Gaon Sabha itself had been wiped out. In this regard, learned counsel for the petitioners relied upon a judgment of the Supreme Court in Sankalchan Jaychandbhai Patel & Ors. Vs. Vithalbhai Jaychandbhai Patel & Ors., (1996) 6 SCC 433 and submits that when the plot in question was entered as Gaon Sabha land, it would not affect the residents who were now residing there. In the alternative, learned counsel for the petitioners also submitted that if the petitioners were found to be in illegal possession over a Gaon Sabha land since before the date of vesting, then their possession shall either be deemed to have been regularised under section 122-C of the 1950 Act or under section 67-A of the Code. 6. In reply, Sri Awdhesh Narain Shukla, learned counsel appearing for the contesting respondent no.7 submitted that the petitioners were in possession over such land which was entered as Banjar and, therefore, he submitted that as per the decision of the Supreme Court in Jagpal Singh & Ors. Vs. State of Punjab & Ors., (2011) 113 RevDec 329 no illegal occupation could be tolerated over a Gram Sabha land. Learned counsel further submitted that the petitioners were not landless labourers and, therefore, were not qualified for getting their possession regularised under section 67-A of the Code. Vs. State of Punjab & Ors., (2011) 113 RevDec 329 no illegal occupation could be tolerated over a Gram Sabha land. Learned counsel further submitted that the petitioners were not landless labourers and, therefore, were not qualified for getting their possession regularised under section 67-A of the Code. He further submitted that when the grand-father of one Rakesh Sharma had filed a Suit, then even though the Suit was decreed, a definite finding was arrived at by the First Additional Munsif, Ghaziabad that the land was of the Gaon Sabha. Learned counsel further submitted that the Lekhpal of the village Nithari had also lodged a First Information Report under various provisions of the Indian Penal Code and under the Prevention of Damage to Public Property Act, 1984. He further submits that the order passed by the District Magistrate was in accordance with law and, therefore, the proceedings under section 67 of the Code should be initiated and concluded. 7. Learned Standing Counsel Sri Rajesh Kumar also submitted that the petitioners were in possession over the Gaon Sabha land and, therefore, it would have been in the fitness of things that they were proceeded against under section 67 of the Code. 8. Sri Kaushlendra Nath Singh, learned counsel appearing for the New Okhla Industrial Development Authority-respondent no.5, however, submitted that when, once the notification under Article 243-Q of the Constitution of India had been made by the Governor then the Gaon Sabha had no authority over the land in question. He further submitted that the petitioners would be proceeded against by the New Okhla Industrial Development Authority. 9. Having heard learned counsel for the parties, this Court is of the view that the District Magistrate while deciding the matter definitely did not look into the question as to whether, after the notification made by the Governor while exercising his powers under Article 243-Q of the Constitution on 24.12.2001, the land would continue to be of the Gaon Sabha. The land definitely, after the notification under Article 243-Q of the Constitution, came out of the purview of the Panchayat Raj Act. The Gaon Sabha owes its identity by virtue of the provisions of section 3 of the U.P. Panchayat Raj Act, 1947. 10. What is more, a Gaon Sabha has to be established only for the purposes of managing the affairs of a village or group of villages. The Gaon Sabha owes its identity by virtue of the provisions of section 3 of the U.P. Panchayat Raj Act, 1947. 10. What is more, a Gaon Sabha has to be established only for the purposes of managing the affairs of a village or group of villages. In the instant case, when by section 12-A of the 1976 Act, the operation of the U.P. Panchayat Raj Act, 1947 itself was withdrawn, the Gaon Sabha definitely would have no identity. Further the District Magistrate had failed to arrive at a definite conclusion as to what exactly was the effect of the entries of Abadi in the revenue records on the date of vesting i.e. on the date of notification under section 4 of the 1950 Act. In the absence of any finding on the above two issues, namely; the effect of section 12-A of the 1976 Act and the effect of the entries of abadi on the date of vesting, I find that the order dated 19.3.2018 passed by the District Magistrate cannot be sustained. It is, accordingly, quashed. The matter is, therefore, remitted back to the District Magistrate to decide the same afresh within a period of three months from the date of presentation of a certified copy of this order. 11. The writ petition is, accordingly, allowed.