Court No. - 9
Case :- WRIT - C No. - 23750 of 2019 Petitioner :- Gulam Mustafa And 3 Others Respondent :- Additional Commissioner (First) Allahabad Division And 3 Others Counsel for Petitioner :- Santosh Kumar Srivastava Counsel for Respondent :- C.S.C.,Diwakar Singh
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the petitioners, Shri Diwakar Singh for the Gaon Sabha, Mustafabad, respondent no. 4 and learned Standing Counsel for the State-respondents.
The writ petition arises out of proceedings for correction of papers under Section 33/39 of the U.P. Land Revenue Act and seeks a writ of certiorari for quashing order order dated 24.08.2018 passed by the Sub Divisional Magistrate, respondent no. 3, order dated 31.05.2017 passed by the Additional Commissioner in a revision under Section 219 of the U.P. Land Revenue Act. An order dated 15.05.2008, passed by the Sub Divisional Magistrate consequent to directions issued by the High Court vide order dated 14.05.2018 in Writ Petition No. 17028 of 2018, is also impugned.
The dispute pertains to plot nos. 126 area 0.457 hectares, 161 area 0.017 hectares and 204 area 0.017 hectares situated in Village Mustafabad Munzapta, Pargana and Tehsil Chail, District Kaushambi.
One Sabit Hussain father of the petitioners 1 and 2 was recorded over this land under class 4 meaning an occupier without title. A report was filed by the Lekhpal for correction of this entry as it was reported that Sabit Hussain was dead.
The Sub Divisional Magistrate relying upon the directions issued by the Apex Court in Hinch Lal Tiwari Vs. Kamla Devi, and since these three plots, before consolidation operations were recorded as plot no. 376/2, a pond, directed the name of Sabit Hussain to be expunged, therefrom.
Aggrieved by the order, the petitioners preferred a revision before the Additional Commissioner under Section 219 of the U.P. Land Revenue Act. This revision was dismissed vide order dated 31.05.2017 reiterating the findings returned by the Sub Divisional Magistrate. An additional finding was recorded that the petitioners had got their names recorded over these plots fraudulently in 1413-1418 Fasli.
The petitioners, thereafter, preferred Writ Petition No. 17028 of 2018. This writ petition was disposed of with a direction that a fresh demarcation and spot inspection be made by the authorities and a fresh order be passed, with the stipulation that the orders impugned in the writ petition, would abide by the final order to be passed as directed above.
In pursuance of the directions contained in the order of the High Court dated 14.05.2018 above, the Sub Divisional Magistrate has passed the order dated 28.08.2018 affirming the orders passed earlier and dismissing the objection of the petitioners. Hence this writ petition challenging the aforesaid three orders.
The submission of counsel for the petitioner is that the plots in question were recorded as pond Kadeemi. The petitioners ancestors were in possession of the same being zamindars of the area. Their possession is recorded since 1319 Fasli. A wrong entry was made in 1359 Fasli without any authority and the courts below have rejected the claim of the petitioners relying upon this entry alone, which was wrong and fraudulent. The earlier revenue record has not been perused and, therefore the impugned orders are vitiated.
It is also contended that the pond never vested in the State or the Gaon Sabha because the petitioners and their ancestors continued to be in possession over the same, from long before the abolition of zamindari.
It has also been submitted that proceedings under Rule 115-C of the U.P. Zamindari Abolition and Land Reforms Rules were initiated against the petitioners or their predecessor-in-interest. In these proceedings, an order of eviction was passed.
Against the eviction order, a revision was filed which was referred to the Board of Revenue, which accepted the reference and remanded the matter. Thereafter, nothing was done for a long period of time. Subsequently the proceedings were decided in favour of the petitioners. However, copy of the order passed in favour of the petitioners is not available as the entire record was destroyed in a fire in the record room in 1977.
On the strength of these facts, it has been submitted that once proceedings under Rule 115-C of the U.P. Zamindari Abolition and Land Reforms Rules had been decided in favour of the petitioners, fresh proceedings under Section 33/39 of the U.P. Land Revenue Act could not have been resorted to. Therefore, the proceedings against the petitioners, wherefrom this writ petition arises, are wholly without jurisdiction.
Counsel appearing for the respondents have supported the impugned orders. They have submitted that since it is the admitted case that old plot no. 376/2 wherefrom new plot nos. 126, 161 and 204 have been carved, was recorded as pond Kadeemi, meaning an old pond, and because the petitioners claim that their ancestors were zamindars, the petitioners have no right, title or interest left in the pond on the abolition of zamindari, which thereafter, vested in the State and was re- vested in the Gaon Sabha under Section 117(1)(vi) of the Act. The impugned orders are therefore, perfectly justified and call for no interference.
I have considered the submissions made by counsel for the parties and perused the record.
At the very outset, it would be relevant to note that in view of the submissions made by counsel for the petitioner, he was directed to show the law whereunder a zamindar of a pond acquired title to it on the abolition of zamindari. Nothing could be pointed out in this regard and only the submissions noticed above, have been made by counsel for the petitioner.
It is not in dispute that the plot in question was an old pond as is the case of the petitioner himself, having been so recorded since at least, 1319 Fasli. The petitioners admit that their ancestors were zamindars and such a categorical averment is to be found in paragraph 10 of the writ petition.
Section 4 of the U.P. Zamindari Abolition and Land Reforms Act provides that once the notification mentioned in the said section has been issued, the following shall vest in the State free from all encumbrances as provided in Section 4(2)(i), which reads as follows:-
"(i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of sub-section (1) of Section 18 apply; and. "
Clauses (a) to (c) of sub-section 1 of Section 18 do not talk of a pond. It is therefore clear that a pond, on the abolition of zamindari, vested in the State and was thereafter re-vested in the Gaon Sabha, under Section 117(1)(vi) of the Act.
Under the circumstances, even though the petitioners or their predecessor-in-interest may have been in possession, they were rightly recorded under Class 4, as occupiers without title. However, since the occupier had admittedly died, the order passed by the Sub Divisional Magistrate on the report of the Lekhpal rightly expunged the name of the occupier, since deceased.
The revision against the order of the Sub Divisional Magistrate was also rightly dismissed, and for the same reason, the subsequent order passed after hearing petitioners on 24.08.2018 consequent to the directions issued by the High Court is also perfectly justified and calls for no interference.
The only other aspect which requires consideration is the submission of counsel for the petitioner that proceedings under Rule 115-C of the U.P. Zamindari Abolition and Land Reforms Rules, drawn against them or their predecessor-in-interest, had been decided finally in their favour and therefore, subsequent proceedings under Section 33/39 of the U.P. Land Revenue Act, are not maintainable.
In this regard, it would be relevant to note that the only material in this regard is the order passed by the Board of Revenue in a reference, whereby the matter was remanded back. It appears and it also appears to be the contention of counsel for the petitioner that nothing was done in pursuance of the order of remand and fresh proceedings have been initiated under Section 33/39 of the U.P. Land Revenue Act on the basis of the report of the Lekhpal.
Since it is the case of the petitioner that nothing was done consequent to the order of remand passed by the Board of Revenue, by accepting the reference made to it, it follows that the proceedings under Rule 115-C never attained finality. Therefore, the contention that the instant proceedings under Section 33/39 was not maintainable, cannot be accepted.
Although, it is also alleged by counsel for the petitioner that the proceedings under Rule 115-C, culminated in a final order in their favour, material in this regard has been brought on record on the pretext that the record of the proceedings were destroyed in a fire in the record room in the year 1977-78.
It is in this context that the revisional court, in its order dated 31.05.2017, has observed that the petitioners fraudulently got their names recorded in the khatauni of 1413-1418 Fasli prima faciebecause this entry appears to be on the basis of a non- existent, order. The submission made by counsel for the petitioner in the aforenoted fact and circumstances, cannot be accepted and is hereby repelled.
In view of the foregoing discussion, this Court does not find any illegality in the impugned orders. The writ petition is accordingly devoid of merit and is, hereby dismissed.
Order Date :- 26.7.2019 Mayank