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2019 DIGILAW 730 (ALL)

Babu Ram v. State of U. P.

2019-03-15

PANKAJ BHATIA

body2019
JUDGMENT : Pankaj Bhatia, J. 1. None appears on behalf of the petitioner even in the revised list. Learned Standing Counsel or the State is present. 2. The petitioner challenges the orders dated 13.6.2013 and 30.10.2012, passed by respondent nos. 2 and 4 respectively, arising out of suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the “Act”). 3. The facts of the case are as follows: 4. The petitioner's father, Ratan Singh, resident of Village Jhalu, Pargana-Daranagar, Tehsil and District Bijnor was the Seerdar of certain land situated in the village but, due to the mistake of the revenue authorities, the name was incorporated as Asami in revenue records. The father of the petitioner, aggrieved against the said wrong recording in the revenue records, filed a suit under Section 229-B of the Act before the Sub-Divisional Magistrate, Bijnor, which was numbered as Case No. 25/1984 (Ratan Singh and others vs. Land Management Committee). In the said suit, notices were issued to the affected parties including the Land Management Committee who contested the said proceedings and, after hearing the parties, three issues were framed and were decided in favour of the petitioner's father vide order dated 12.7.1984 (Annexure-4 to the writ petition). It is stated that after the death of the father of the petitioner the name of the petitioner and his brother were duly recorded in the revenue records. It is further stated that the order dated 12.7.1984 had attained the finality, as the same was not challenged anywhere. The petitioner further states that his ancestor and now the petitioner and his brother are in possession of the land in question and in consolidation proceedings held in the village chaks have been allotted to them and under Section 52 of the U.P. Consolidation of Holdings Act, 1953, the consolidation proceedings in the village have come to an end. It is further stated that in an order dated 08.9.2009 passed by this Court in Civil Misc. Writ Petition No. 47176 of 2009 (Deena Nath vs. State of U.P. and others) this Court directed the Collector to reopen all the cases in which Gram Sabha property was mutated in the name of private persons or in the cases where there is huge delay in mutation in the revenue records may be reopened suo-motu by the Collector. Writ Petition No. 47176 of 2009 (Deena Nath vs. State of U.P. and others) this Court directed the Collector to reopen all the cases in which Gram Sabha property was mutated in the name of private persons or in the cases where there is huge delay in mutation in the revenue records may be reopened suo-motu by the Collector. The relevant directions in the case of Deena Nath vs. State of U.P. and others are as under: “The experience of the Court is that during consolidation proceedings, consolidation Authorities/Officers liberally donate the Gaon Sabha properties to influential/resourceful persons by passing such orders as has been passed in the instant case. Accordingly, all the Collectors of all the Districts in the State are directed to reopen such cases where names of private persons are entered in revenue records on the basis of old pattas, or adverse possession over Gaon Sabha land and correct the illegality by taking suo motu action. However, no orders shall be set aside without issuing notice and hearing affected persons. If notice through registered post is not served then it may be served through publication in the newspaper also. If it is found that some Consolidation Officer, or SOC or DDC has done similar thing, then the action must be proposed to be taken against him also.” 5. The petitioner avers that his case was not covered by either of the two conditions specified in the case of Deena Nath (supra), however, the Tehsildar, Bijnor submitted an ex parte report on 12.3.2011 against the petitioner. It is further stated that on 14.3.2011 solely on the basis of the ex parte report submitted by the Tehsildar on 12.3.2011, the respondent no. 3 proceeded to pass an order staying the earlier order dated 12.7.1984. The petitioner received notice in pursuance of the order dated 14.3.2011 and the petitioner and his brother submitted their objections before the respondent no. 4 on 09.8.2012. 6. It is argued that the respondent no. 4, i.e. the State Government, misinterpreted the order passed by the High Court in the case of Deena Nath (supra) and passed the order dated 30.10.2012 whereby he quashed the order dated 12.7.1984 and fixed the same for further hearing. 7. The petitioner states that aggrieved against the order dated 30.10.2012 he filed a revision before the respondent no. 4, i.e. the State Government, misinterpreted the order passed by the High Court in the case of Deena Nath (supra) and passed the order dated 30.10.2012 whereby he quashed the order dated 12.7.1984 and fixed the same for further hearing. 7. The petitioner states that aggrieved against the order dated 30.10.2012 he filed a revision before the respondent no. 2 under section 333 of the Act which was registered as Revision No. 113/12-13, Babu Ram and others vs. State of U.P. And others. The said revision was also dismissed without any reasoning and without any application of mind. 8. The present petition challenges both the said orders i.e. the order dated 30.10.2012 passed by respondent no. 2 and the order dated 13.6.2013 passed passed by respondent no. 1 in Revision No. 113/12-13. 9. The two submissions made by the petitioner are that the case of the petitioner as decided on 12.7.1984 was on merits and after hearing the parties and the same had attained the finality as such could not be reopened and that the case of the petitioner did not fall in any of the conditions mentioned by this Court in the case of Deena Nath (supra), the petitioner further argues that even assuming without admitting that the case was covered under the directives issued by the High Court in the case of Deena nath, it was the Collector alone, who could have initiated the proceedings and the Sub-Divisional Magistrate did not have any jurisdiction to do so thus a prayer has been made for quashing the two orders on the ground as raised in the writ petition. 10. When this writ petition was entertained, the Hon'ble Court had passed the order on 16.1.2014 which reads as under: “Heard Sri Swarn Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri A.K. Srivastava, learned counsel for the Gaon Sabha. The submission of learned counsel for the petitioner is that regular suit filed by the father of the petitioner and his three brothers under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, being suit no. 25 of 1984, in which gaon sabha and State were parties and they have defended the case was decreed. The submission of learned counsel for the petitioner is that regular suit filed by the father of the petitioner and his three brothers under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, being suit no. 25 of 1984, in which gaon sabha and State were parties and they have defended the case was decreed. By the impugned order, the effect of the decree has been annulled taking shelter of the judgment of this Court passed in Writ Petition No. 47176 of 2009 (Dina Nath Vs. State of U.P. and Others). In his submissions, in the entire judgment, there is no such observation that the judgment and decree passed by the competent court shall also be re-open. Prima facie, I find substance in the submissions of learned counsel for the petitioner. Matter requires scrutiny. Issue notice. Notices on behalf of respondent nos. 1 to 4 have been accepted by the office of learned Chief Standing Counsel, whereas Sri A.K. Srivastava has put in appearance on behalf of respondent no. 5. Therefore, notices need not be served again to the respondents. Learned counsel for the respondents are granted four weeks time to file counter affidavits. Rejoinder affidavit, if any, may be filed two weeks thereafter. List thereafter. As an interim measure, without prejudice to right and contention of the parties and subject to further orders of this Court, the eviction of the petitioner from the land in dispute shall remain stayed, provided: (i) petitioner deposits Rs. 20,000/-(Rupees twenty thousand only) within a period of two months from today before the respondent no. 4; (ii) the above amount shall be deposited every year in the same month in which the first deposit is made; (iii) the condition of deposit will not apply in case the State Government declares the area under drought or flood; (iv) the amount so deposited shall be kept in a separate account; (v) in case the writ petition is allowed, the amount so deposited shall be returned to the petitioners with interest and in case the writ petition is dismissed, the amount so deposited shall go to the Gaon Sabha; (vi) in case of default of the above conditions, the interim protection granted today shall stand vacated; (vii) in the meantime, neither any construction shall be made over the land in dispute nor any third party right shall be created. It is also provided that the proceeding before the trial may go on, but the final judgment shall not be delivered till the next date of listing.” 11. The State of Uttar Pradesh has filed a counter affidavit and the main thrust of the submission by the State is that the order dated 12.7.1984 was an ex parte order as the order sheet of the said case dated 27.6.1984 and 12.7.1984 do not bear the signature of the counsel for any party. It is further stated that the ex parte order was rightly recalled in view of the High Court order passed in the case of Deena Nath (supra). It is further stated that no harm would be caused to the petitioner, if the Original Suit No. 25/1984 is decided on merits and, thus, have prayed that the writ petition is liable to be dismissed. 12. Testing the submissions and the grounds raised in the writ petition, a perusal of the order dated 12.7.1984, passed in Suit No. 25/1984 (Ratan Singh vs. Land Management Committee (Annexure-4 to the writ petition) clearly bears that the said suit was duly contested and three issues were framed, while deciding the said suit, it was clearly decided that the land in question did not come in the purview of Section 132 of the Act which deals with public utility lands and specific finding was recorded, that the land in question does not come under section 132 of the Act. It was further recorded after considering the evidence that the possession of the plaintiff in the said suit was established. It was further decided that the plaintiff in the said suit would qualify to be recorded as Seerdar of the land. The said findings not being contested attained finality inter se between the parties. 13. From the reading of the judgment passed by this Court in the case of Deena Nath (supra), it bears that this Court has directed the Collector to take suo motu action to reopen; (a) the cases where the names of the private persons are entered in the revenue records on the basis of old pattas. (b) or adverse possession over the Gram Sabha land is claimed. 14. (b) or adverse possession over the Gram Sabha land is claimed. 14. The case of the petitioner clearly did not fall in any of the two conditions mentioned in the judgment in the case of Deena Nath and, thus, the judgment of the said case could not be used to reopen the concluded proceedings in favour of the petitioner, the stand taken by the State Government in their counter affidavit clearly reveals that the State Government having failed to challenge the judgment dated 12.7.1984 used the directions given in the case of Deena Nath for recalling the concluded judgment dated 12.7.1984 which was nothing but an abuse of process of the law and clear miss-interpretation of the judgment delivered by this Court in the case of Deena Nath. From the plain reading of the judgment in the case of Deena Nath, it is nowhere revealed that this High Court has given a free handle to the State Governments to reopen the proceedings which were decided against State Government and the directives of the Court were confined only to two types of cases. This fact has not even been adverted to in either of the impugned orders. In fact, in the impugned order dated 30.10.2012, the only ground taken is that in terms of the judgment of the High Court, the order dated 12.7.1984 is recalled without even referring to the two conditions referred to in the said judgment of Deena Nath or recording any finding that the case of the petitioner was covered by the judgment of Deena Nath. 15. The Revisional Court also did not advert to any of the submissions made in the revision and dismissed the same only on the ground that a right of hearing is open to the petitioner. 16. The two orders passed against the petitioner are clearly without application of mind and, in fact, considering the submissions made in the counter affidavit can be termed as a mala fide exercise of power by the State Government, having failed to challenge the judgment dated 12.7.1984 have used the judgment of Deena Nath to reopen the concluded proceedings that too on merits. 17. 17. The next submission of the petitioner is that even if for the sake of arguments it is accepted that the case could be reopened in terms of the directions given by this High Court in the case of Deena Nath, the same could only be done by the Collector and the respondent no. 4 had no jurisdiction to reopen/recall the concluded judgment dated 12.7.1984. The said submission also merits acceptance as the High Court had clearly directed that the suo motu powers could be exercised only by the Collector and, thus, the Sub-Divisional Magistrate was not even authorised to recall the order dated 12.7.1984 which he has done so. Although the question of jurisdiction was not raised before the Revisional Court, the said question going to the root of the issue can be raised at any stage of the proceedings. 18. In view of the findings recorded above, I allow the writ petition and quash the order dated 30.10.2012, passed by respondent no. 4 and the order dated 13.6.2013, passed by respondent no. 1, (Annexure-2 and Annexure-1 to the writ petition) respectively. The amounts deposited by the petitioner in terms of the order dated 16.1.2014 shall be returned to him with interest at the rate of 6% per annum from the date of deposit till the date of actual payment to the petitioner.