Hon'ble Shashi Kant,J.
This petition has been filed by an institution established about a century ago in 1893 by one Munshi Kanh Kunwar Saxena. The institution then established was named as the Diamond Jubilee School. It was raised to the status of a High School and then to an Intermediate College with Arts subject in 1940 and with an additional section of agriculture in 1948. The institution undisputedly has been established and recognized under the U.P. Intermediate Education Act, 1921.
The Diamond Jubilee School was re-named as Swaroop Narain Inter College and currently the name of the institution is Kanh Kunwar Intermediate College, Kannauj. There is no dispute that this has been done by the permission of the Joint Director (Education), who is the competent authority to do so. The identity of the institution therefore along with its existence is undisputed.
The present writ petition assails the order of the Collector/District Magistrate, Kannauj dated 23.10.2008. There are two orders annexure-10 and 11 respectively of the same date. The first order is in relation to land where Zamindari has not been abolished and is described as Non-Zamindari Abolition area (In short "Non Z.A. area"). The second area involved is 07.82 acres. order which is annexure-11 to the writ petition, is in relation to an Abadi recorded in the revenue records where it is alleged that zamindari has been abolished. This area is only 0.40 acre of plot no.268M. According to the petitioners' institution the entire land is the play-ground/field of the institution that has been existing since times immemorial and recorded as such.
By the impugned orders the District Magistrate has proceeded to expunge the current status of the names recorded in the revenue records treating it to be vacant land belonging to the State and has directed it to be recorded as land for Government Sports Stadium. A Division Bench entertained the petition and passed the following interim order on 11.12.2008 :
"Argument is that the land in dispute is recorded throughout in the ownership of the petitioner's side and the play ground and the hostel is in existence but on wrong pretext that land belong to the Gaon Sabha an order of requisition has been passed. Submission is that the entire exercise appears to be on wrong premises. It is further submitted that on wrong premises it was stated that the land belongs to the Gaon Sabha and, therefore, there cannot be any occasion to exercise the powers under Section 117(6) of the U.P.Z.A. & L.R.Act.
In view of the aforesaid, as all the respondents are represented by the learned Standing Counsel, he may file counter affidavit by the next date.
List this case in the week commencing 19th January, 2009.
In the meantime, parties will maintain status quo in respect to the nature and possession over the property in dispute and pursuant to the impugned order no interference in respect to the petitioner's rights and possession will be made."
The challenge raised in the present writ petition is on the ground that the District Magistrate/Collector did not have any authority nor was he possessed of any jurisdiction to pass the impugned order which virtually amounts to acquiring the land of the petitioners by an administrative order without there being any permissibility in law to do so. The contention raised is that the land over which Zamindari has not yet been abolished, it neither vests in the State, or in the Local Body within which limits the disputed land lies, and consequently to expunge the name and entries of field of the institution is contrary to law and clearly amounts to an over reach of authority. To substantiate this plea, the petitioner institution has brought on record the revenue records demonstrating that zamindari has not been abolished and that the State can not claim ownership over the land. For this annexure-5 to the writ petition which is the register of proprietorship (Khevat Malikan) has been filed which is of the year 1359 fasli (1952 A.D.). The same categorically indicates the names of the Zamindars and the occupancy of the Diamond Jubilee School. The entire consolidated revenue records which is annexure-5 to the writ petition reflects the same recording it to be the field and Abadi with a very miniscule area as Banjar (fallow land).
The small area of Zamindari Abolition (In short "Z.A.") area, i.e. plot 268M, 0.40 acre has been recorded as Abadi and is also reflected in the current Khatauni as such, but is recorded in the Khata of Category 6 (2) of which the Gaon Sabha under the U.P. Zamindari Abolition Act, 1952 has the management and control. With regard to this small piece of land the contention raised in the writ petition is that the Gaon Sabha never existed for this area inasmuch as this entire land is within the municipal limits of the municipality of Kannauj and no notification was ever issued under Section 4 read with Section 117 of the 1950 Act either vesting the said area of 0.40 acre in any Local Body including the Gaon Sabha. In such circumstances there is no occasion to either resume or expunge the entry under the powers that have been purportedly exercised by the Collector.
To further substantiate this plea the petitioners have brought on record the current Khatauni (record of rights) and Khasra (record of possession) of the said plots of 1402 Fasli appended as annexure-7 to the writ petition where also the land is recorded as Non-Zamindari area and the names of the Zamindars as proprietors therein. This also includes the name of Swaroop Narain College (the predecessor name of the institution) as also the existence of field and Abadi as well as boarding house.
On the strength of these documents it is the contention of the petitioners that this entire land continues to be in the occupation and possession of the petitioners' institution and the revenue records reflecting the same leaves no room for doubt that this never vested in the State or in any Local Body including the Gaon Sabha in order to enable the Collector/District Magistrate to assume authority for expunging the entries and recording it for a Government Playground/Stadium. Thus this private land of the institution could not have been converted by this circumvented method into Government property without following any procedure of law.
The contention is that through summary proceedings this was not permissible and this virtually amount to forcibly trying to occupy the property without acquisition or even requisition. It therefore violates Article 300-A of the Constitution of India.
The State has filed a counter affidavit and curiously enough in paragraph no.3(2) thereof it has been stated that since the then Zamindars had died, their property vested in the State. The fact that the land in dispute was under Non Zamindari Abolition area land is admitted in the counter affidavit except for plot no.268M, area 0.40 acres. It has further been stated that since the land was also recorded as abadi and banjar therefore also the State could resume the said land. It has further been submitted that it was recorded as Field and therefore no error has been committed in converting the same into an area for a Government Sports Stadium. It is alleged that the land belongs to the State and therefore the order does not suffers from any infirmity.
A rejoinder affidavit to the same has been filed and a supplementary affidavit dated 08.12.2008 has also been filed stating therein that there was no Gaon Sabha in existence for plot no.268 M, 0.40 acre to have vested it in the Gaon Sabha or even in the State.
At the very outset we may clarify that there is a distinction between acquisition of land and its resumption or requisition by an administrative order for Government purposes. It is undisputed and is also evident from the counter affidavit that plot no.268 M and plot no.272 together with its sub-plots i.e. an area 7.82 acres is recorded in the revenue records even today as an area where Zamindari has not been abolished. The names of the respective Zamindars as proprietors are maintained in the revenue records. The records of 1359 Falsi as placed before the Court as annexure-5 to the writ petition, clearly establishes the same. The respondents have relied on the Khasra (record of possession) which has been filed as annexure-1 to the counter affidavit to contend that the land has been recorded as abadi, banjar and Filed. Khasra is a record of possession which conforms to the records of rights. The respondent State has been unable to demonstrate as to how the said land came to devolve upon the State and the State became its owner. The assumption of ownership therefore is clearly fallacious and without any basis. The reasoning given in the counter affidavit that since the earlier Zamindar had died and therefore the State became the owner is preposterous and is not based on any principle of law. The learned Standing Counsel for the State could not point as to under which provision the State became the owner if the earlier Zamindar had died. The Zamindar can be succeeded by his heir or even by the persons or any institution like the petitioners in the present case who is in occupancy and possession of the said land for the past one century supported by the revenue records annexure-1, annexure-5 and annexure-7 to the writ petition. The summary manner of dispossession to fulfill Government objectives is not a recognized method of dispossession of property governed by laws relating to land tenures. The State would not automatically become the owner of a property if its earlier owner had died. The principle of escheat is nowhere attracted nor is there any justification shown in the impugned order or even in the counter affidavit as to how the State claims itself to have become the owner of the property. The respondent State has been unable to dislodge the entries of 1359 Fasli or even the entries of the current Khatauni which is annexure-7 to the writ petition of 1402 fasli.
This being the position we find neither the property to have vested in the State nor do we find any divesting of the property by any lawful method from its proprietors, owners or occupiers. A summary order of expunging the entries and recording the name of the Government Sports Stadium was therefore a colourable exercise of power which falls within the category of malice in law. The District Magistrate/Collector should not only endeavor to conform to the wishes of the State but he is also obliged to perform his duties only in accordance with law.
In this regard neither the provisions of the U.P. Tenancy Act, 1939 or the provisions of the U.P. Land Revenue Act, 1901 that may be applicable authorized the Collector to resume the property and to vest it in the State for the purpose referred to in the impugned order. Nothing has been brought on record to demonstrate that the land is within municipal limits so as to even apply any other law. It is nobody's case that the provisions of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 applies in the present case as a consequence of any action taken thereunder. The present is case where under the garb of correcting entries the land is sought to be virtually confiscated assuming it to be with ultimate property of the State without following the due process of law.
We had the occasion of dealing with a similar purported exercise of power by the Collector but that was in relation to an area where Zamindari had been abolished under the U.P. Zamindari Abolition and Land Reforms Act, 1950 where also the land of an institution was sought to be resumed treating it to have been vested in the State and for management in the Gaon Sabha. The said writ petition has been allowed by us on 18.05.2018 in the case of Committee of Management Durga Narain College and Adity Kumari School & Ors. Vs. state of U.P. Thru Prin. Secy. Revenue and others in Writ C No.3042 of 2009. This requires to be mentioned inasmuch as part of the land in the present case being plot no.268 M, area 0.40 acres has been shown to be land of abadi in an area where Zamindari has been abolished. The State has not been able to give any answer nor any reply has been given to the supplementary affidavit dated 08.12.2008 as to how the Zamindari of the said plot was abolished through any notification issued under the U.P. Zamindari Abolition and Land Reforms Act, 1950 and as to how the consequences of vesting came to vest the land in the State or for management in the Gaon Sabha. To the contrary if it is recorded as abadi and the institution is in possession then the said land will be deemed to have been settled with the institution in terms of Section 9 of the 1950 Act. None of these provisions have either been examined by the respondent or taken into account while passing the impugned orders. The orders therefore virtually rests on an authority and jurisdiction which otherwise was not possessed by the Collector.
We for all the reasons stated hereinabove allow the writ petition and quash the orders dated 23.10.2008 annexure-10 and 11 to the writ petition and direct the respondents not to interfere with the possession of the petitioners' institution over the land in dispute. The revenue entries shall stand restored accordingly.
The writ petition is accordingly allowed.
Order Date :- 29.05.2018 R./