Court No. - 40
Reserved On:- 24.05.2018 Delivered On:-29.05.2018
Case :- WRIT - C No. - 64669 of 2008 Petitioner :- C/M Kanh Kunwar Intermediate College Thru' Manager & Anr.
Respondent :- State Of U.P. Thru' Principal Secy. & Others Counsel for Petitioner :- Triveni Shankar,Ajay Shankar,K. Shahi Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Shashi Kant,J.
The present writ petition assails the order dated 16th October, 2008 passed by the Collector/ District Magistrate, Kannauj whereby the land in dispute of Plot No. 263 area 1.68 acres, Plot No. 260 area 0.90 acres and Plot No. 266 area 5.72 acres have all been directed to be recorded in the name of Government Girls' Degree College.
A Division Bench entertained the petition and passed the following interim order on 18.12.2008:-
“Argument is that petitioner is continuously recorded over plot nos. 266-M and 263-M and in respect to those plots, an order was passed by the Collector expunging name of the petitioner upon which, petitioner filed revision in which, there is stay order of the Board of Revenue (Annexure-10) which is continuing and thus, passing of the impugned order by the respondent no. 5 on 16.10.2008 cannot be said to be justified.
Submission is that in the garb of impugned order, respondents are threatening to forcibly dispossess the petitioner. Lastly, it has been stated that in respect to the same matter, another writ petition being Writ Petition No. 63977 of 2008 is also pending.
In view of the above, connect this petition with the writ petition referred above.
All the respondents are represented by learned Chief Standing Counsel. He may file counter affidavit by the next date.
On the facts, taking note of the order passed by the Board of Revenue referred above, it is provided as an interim measure that parties will maintain status quo in respect to nature and possession over the land in dispute and pursuant to the impugned order, no interference in respect to petitioner's right and possession will take place.”
The land belongs to the same Institution in respect whereof we have delivered orders today in Writ Petition No. 63665 of 2008 and Writ Petition No. 63977 of 2008. The present is a case where the land in dispute is of the Non Zamindari Abolition area category. In this case also in a similar fashion, the Collector had passed an order for expunging the entries vide order dated 6th May, 2000. Two revisions were filed and the Board of Revenue passed an interim order on 21st August, 2008. The orders passed by the Board of Revenue was served on the Collector much prior to the passing of the impugned order dated 16.10.2008. The Collector without taking notice of the same and without even discussing the law, as also the status of the land, has proceeded to pass the impugned order without any notice or opportunity to the petitioners. This order has been passed on the basis of an earlier proposal to record the name of Government Girls' Degree College by expunging the present entries in the purported exercise of resumption of the land through an administrative order. For this, entries were sought to be corrected by an order dated 15.10.2008 and vesting it in the State. On the very next day i.e. 16.10.2008, the impugned order has been passed.
The petitioners have brought on record the revenue records of 1348 Fasli, 1359 Fasli and the current khatauni of 1402 Fasli. In paragraph nos. 10 to 12 of the writ petition, the details of the land indicating the proprietorship of the concerned Zamindars has been shown. The name of the petitioner Institution having been recorded has been shown. The respondents treating part of the area of Plot No. 266 as Matrook (Omission to continue entries) have treated it to be belonging to the State.
In a similar fashion an area of 0.64 acres of Plot No. 263M treating it to be within an area where Zamindari has been abolished another order has been passed on 16.10.2008 for recording it in the name of Government Girls Degree College. The said land is recorded as Abadi under Category 6(2). The petitioners have taken a clear stand that there never existed a Gaon Sabha nor did the land ever vest in the State for it being managed by the Gaon Sabha. Similar pleadings have been placed on record in the connected Writ Petition No. 65665 of 2008 where also a small area of such land was purportedly resumed for a housing scheme. We have already considered this law and for the reasons recorded in the judgment of the said writ petition, we find that the exercise of powers by the Collector in the present case also suffers from the same illegality.
The land in dispute in the present case, therefore, in respect of the Non Zamindari Abolition area was divested in a summary fashion, that too even, hurriedly within a span of couple of days of receiving the report to be utilized for the purpose divesting the petitioner of its possession and occupation. The impugned orders are clearly in violation of the audi alteram partem rule as not notice was served on the petitioner in Institution nor any opportunity given before passing of the orders. If the Zamindari has not been abolished, then the State does not automatically become proprietor of the land so as to resume the same. There is no explanation given as to how the State became owner of the land in question when the revenue recorded entries were in the name of the existing Zamindars where Zamindari has not been abolished as yet. A counter affidavit sworn by Umesh Chandra Rai, Tehsildar Kannauj has been filed on record. It again repeats the entry of Abadi and bunjer in the revenue records. The change of entry took place just one day before the passing of the impugned order on 15.10.2008 without any notice or opportunity to the petitioner. It was all done in a haste, as is evident from paragraph no. 3 of the counter affidavit. It has been alleged that since the petitioner has not been able to bring on record any endowment deed, therefore, it is not understood as to how the petitioner claims himself to be the owner of the land. To substantiate this, the respondents in the counter affidavit have again repeated the same theory that since the recorded Zamindar had died long back and since the petitioner did not have any lawful ownership, therefore, the land vested in the State. The same contention has been put forth in respect of Plot No. 263 area 0.64 decimals. We are unable to comprehend this argument that merely because Zamindar has died, the land automatically vested in the State. Learned counsel for the respondent-State has not been able to demonstrate as to how the State became the owner of the said land.
The facts of this case are similar to that of Writ Petition No. 65665 of 2008. The law, therefore, as explained therein also applies on the facts of the present case. It is not the case of the respondents that the Uttar Pradesh Urban Area Zamindari Abolition and Land Reforms Act, 1956 applies to the present controversy.
The ownership cannot be transformed either on the strength of any provisions of the U.P. Tenancy Act, 1939 which will continue to apply in a Non Zamindari Abolition Area. There is no material in the counter affidavit as to how this transformation of ownership in favour of the State took place so as to allow the Collector to change the entries. There is also no such provision under the U.P. Land Revenue Act so as to alter title in the name of correction of an entry. An entry can be corrected provided there is a wrong entry and not because the earlier Zamindar had died. Admittedly, if Zamindari has not been abolished, the land cannot vest in the State. The counter affidavit is totally silent on this issue. Accordingly, the respondents have failed to establish as to how the State became the owner of the land, even if, the Zamindar had died, inasmuch as, no such principle of law has been pointed out and neither the property has vested by any proceedings of escheat in the State.
It is not the case of the respondents in the counter affidavit that any resumption took place of the land treating it to be governed by the UPZA & LR Act 1950. It is not the case of the respondents that the 1956 Act applies as stated above. No notifications either of the 1956 Act or 1950 Act have been pleaded or brought on record through the counter affidavit to the said effect. It is also not the case of the respondents that the entries in favour of the petitioner Institution in the Khatauni filed along with the writ petition are either fake or manipulated. No confiscatory power can be exercised under the garb of correction of entries.
The writ petition is accordingly allowed. The impugned order dated 16.10.2008, Annexure Nos. 15 and 16 passed by the Collector, Kannauj are hereby quashed. The revenue entries shall stand restored accordingly.
Order Date :- 29.5.2018 S.Chaurasia