Court No. - 40
Reserved On:- 24.05.2018 Delivered On:- 29.05.2018
Case :- WRIT - C No. - 65665 of 2008 Petitioner :- C/M Kanh Kunwar Intermediate College And Others Respondent :- State Of U.P. Thru Prin. Secy. Revenue And Another 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 29th August, 2008 passed by the District Magistrate/ Collector whereby the revenue entries in favour of the recorded proprietor and the petitioner has been directed to be expunged and the land has been directed to be recorded in the name of Sri Kansiram Ji. Shahri Garib Awas Yojana. The land in dispute is Plot No. 263M area 1.68 acres and Plot No. 264 area 0.94 acres where admittedly Zamindari has not been abolished.
The following interim order was passed by a Division Bench 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, the history whereof has been narrated in the order passed by us today in connected Writ Petition No. 63977 of 2008.
We have also dealt with the position of law therein which squarely applies on the facts of the present case as well.
However there are certain additional facts in the present case which require mention.
The Collector of the District on the basis of an exparte report dated 22nd April, 2000 passed orders for expunging the entries vide order dated 6th May 2000, treating the said land to have been recorded as 'Banjar' (fallow)- Deegar. The petitioners contend that they came to know about the aforesaid order of expunction quite sometime thereafter as the orders had been passed without any notice or opportunity to the petitioner Institution in whose favour the entries existed in the revenue records of 1348 Fasli Annexure Nos. 5, 6 and 7 respectively, 1359 Fasli Annexure Nos. 8 and 9 respectively, and in the revenue records of rights and possession of 1402 Fasli Annexure No. 10 to the writ petition. The revenue records in favour of the petitioner Institution have been narrated in paragraph nos. 10 and 11 of the writ petition.
Two revisions were filed before the Board of Revenue under the Land Revenue Act, 1901 being Revision Nos. 3806 and 3935 of 2007/2008/LR and the Board of Revenue passed an order of status quo on 21st August, 2008. The said order was in force and in existence on the date when the impugned order dated 29th August, 2008 was passed. These facts have been categorically stated in paragraph no. 20 of the writ petition and in paragraph no. 21 it has been averred that upon receiving the said order dated 21st August, 2008, the same was served on the Collector through an application.
It is further submitted by the learned counsel for the petitioners that even though orders had been passed on 6th May, 2000, the same were never given effect to and the Institution continued to be in possession and occupation of the land in question.
It is then submitted and has been narrated in paragraph no. 25 that a report by the Sub-Divisional Magistrate, Kannauj was obtained on 27th August, 2008 for expunging the entries and allotting the land for a housing scheme after which the order was passed on 29th August, 2008 impugned herein, hurriedly immediately after two days, that too even, without notice and opportunity to the petitioner.
A counter affidavit has been filed through Umesh Chandra Rai, Tehsildar Sadar, Kannauj. In the counter affidavit, the fact of the filing of the revisions has not been disputed but it has been stated that the order passed by the Board of Revenue on 21st August, 2008 was produced after the impugned order had been passed. However, the District Magistrate Collector wrote a letter on 21st January, 2009 to the concerned authorities to abide by the orders of the Board of Revenue. A copy of the said letter is Annexure No. 2 to the counter affidavit. It has been informed by Sri Trivedi Shankar that later on both the revisions have been allowed and the order of the Collector dated 06.05.2000 has been set aside.
The fact that the area is Non Zamindari Abolition area, therefore, remains uncontroverted. If Zamindari has not been abolished and the land has not vested in the State, it is not understood as to how the Collector/ District Magistrate has proceeded to pass the impugned order on the basis of the existing entries in which the Board of Revenue had already passed an order on 21st August, 2008. The interim order of the Board of Revenue dated 21.08.2000 was passed prior to the impugned order. The order of the Collector impugned before the Board of Revenue has been finally set aside as noted above. It is thus evident that it was neither legally nor lawfully permissible for the Collector to have passed the order in summary proceedings without notice and opportunity to the petitioners for allocating the land for a scheme when the land could not be claimed by the State to be belonging to it.
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 UP Urban Area Zamindari and Land Reforms 1956 Act applies. 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 Collector, therefore, committed a manifest error and in view of the law discussed in connected Writ Petition No. 63977 of 2008 which also applies on the facts of the present case, this writ petition deserves to be allowed. We accordingly allow the writ petition, and quash the order dated 29th August, 2008. The revenue entries shall stand restored accordingly.
Order Date :- 29.5.2018 S.Chaurasia