Court No. - 22
Case :- WRIT - B No. - 4341 of 1991 Petitioner :- Jamuna Respondent :- Board Of Revenue Counsel for Petitioner :- R.N.Sharma,A.K.Sharma,Arpit Agarwal,Manish Goyal,Manu Khare,N.K. Tripathi,P.V.Singh,R.P.Dubey,Vibhav Dutt Ojha,Vishnu Dutt Ojha Counsel for Respondent :- Ashish Gopal,S.C.,Siddharth Singhal
Hon'ble Salil Kumar Rai,J.
1. A notice served on counsel for respondent No. 3 has been handed over to the Court by Shri Arpit Agarwal, learned Advocate, and the same is taken on record.
2. List has been revised. No one appeared for respondent No. 3. Shri R.K. Jain, Senior Counsel, assisted by Shri Arpit Agarwal, learned Advocate, appeared for the petitioner and Shri Birendra Pratap Singh, learned Standing Counsel appeared for respondent Nos. 1 and 2.
3. Respondent No. 3 is a Goshala Society. Consequent to demarcation proceedings under Section 5 of the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (hereinafter referred to as, 'Act, 1956'), a notification dated 19.6.1961 vesting the agricultural areas in certain urban areas of the State of Uttar Pradesh which included District-Agra was issued under Section 8 of the Act, 1956 and consequently Zamindari was abolished in the urban area of District-Agra w.e.f. 1.7.1961.
4. As a result of the abolition of Zamindari, the petitioners who before the abolition of Zamindari were hereditary tenants, were recorded as Sirdar of Plot Nos. 1722/1, 1723, 1724/1 and subsequently became the Bhumidhar of the said plots. There was some dispute regarding the regularity of demarcation proceedings under the Act, 1956, and therefore, the respondent No. 3 filed an application before the Commissioner, Agra Division, Agra (hereinafter referred to as, 'Commissioner') to revive the demarcation proceedings. The Commissioner finally in his order dated 10.1.1972 held that there was some irregularity in the demarcation proceedings, but refused to grant any relief to respondent No. 3 on the ground that the application was highly time barred. In his order dated 10.1.1972, the Commissioner also recorded his opinion that there was no provision in the Act, 1956 to rectify any procedural defect after the demarcation proceedings were closed. In his order dated 10.1.1972, the Commissioner after recording his opinion that there were some procedural defects in the demarcation proceedings, submitted a Reference to the Board of Revenue, U.P. at Allahabad (hereinafter referred to as, 'Board of Revenue') to pass appropriate orders to regularize the procedural defects. The Board of Revenue vide its order dated 4.8.1972 held that the Reference made by the Commissioner was not maintainable, and therefore, rejected the same. In its order dated 4.8.1972, the Board of Revenue also held that there was no provision to reopen the demarcation proceedings and the same can be done only by the State Government by denotifying the areas included in the notification dated 1.7.1961.
5. Respondent No. 3 filed a Writ Petition No. 7639 of 1972 in this Court challenging the order dated 4.8.1972 passed by the Commissioner. The aforesaid writ petition was dismissed by this Court vide its order dated 28.4.1978. In its order dated 28.4.1978, this Court held that in view of Section 9 of the Act, 1956, it was not open to the Goshala to challenge the notification on the ground that the provisions of the rules were not complied and there was any defect in the demarcation proceedings as submitted by the Goshala. While passing the order dated 28.4.1978, this Court also noticed that the applications of respondent No. 3 for revival of demarcation proceedings were highly time barred. The judgement dated 28.4.1978 passed by this Court in Writ Petition No. 7639 of 1972 was affirmed by the Supreme Court vide its order dated 22.10.1979 passed in Civil Appeal No. 823/1979. It appears from the order dated 22.10.1979 passed by the Supreme Court, that before the Supreme Court the respondent No. 3 had raised the plea that Goshalas were exempted from the operation of the Act, 1956. The Supreme Court held that the aforesaid plea of respondent No. 3 was not covered in the order dated 28.4.1978 passed by this Court, and therefore, can not be considered for the first time by the Supreme Court and left it open to the respondent No. 3 to raise the issue before the Commissioner. Subsequently, the respondent No. 3 filed an application dated 12.2.1981 before the Commissioner again praying to allow the proceedings under Order 9 and the objections filed by the respondent. It was alleged in the aforesaid application that the disputed plots were not agricultural lands and were held for public purposes and therefore exempted from the operation of the Act, 1956. The Commissioner vide his order dated 6.11.1984 dismissed the aforesaid application filed by respondent No. 3 holding that the issue relating to revival of demarcation proceedings had already been concluded vide previous order dated 10.6.1972 and can not be reopened. In his order dated 6.11.1984, the Commissioner also held that the respondent No. 3 had failed to establish that the disputed plots as described by respondent No. 3, i.e. Goshalas, were declared to be public purpose by the State Government. The order dated 6.11.1984 passed by the Commissioner was challenged by respondent No. 3 before the Board of Revenue through Second Appeal No. 44/1984-85. The Board of Revenue vide its order dated 27.11.1990 allowed the second appeal and remanded back the matter to the Commissioner to pass fresh orders in accordance with the observations made by the Board of Revenue. The order dated 27.11.1990 passed by the Board of Revenue has been challenged in the present writ petition.
6. A reading of the order dated 27.11.1990 shows that in its aforesaid order, the Board of Revenue has held that in his previous order dated 10.6.1972, the Commissioner had not rejected the applications filed by the respondent No. 3 and the same were still pending because by its order dated 4.8.1972, the Board of Revenue had refused to accept the Reference submitted by the Commissioner. It has been recorded by the Board of Revenue that even though the Commissioner, in his order dated 10.6.1972, had recorded an opinion that the applications were time barred but had not rejected the same on the aforesaid ground. In view of the aforesaid reasons, the Board of Revenue held that the matter was liable to be remanded back to the Commissioner for disposal of restoration applications filed by respondent No. 3.
7. The opinion of the Board of Revenue as recorded in its impugned order dated 27.11.1990 is clearly contrary to the records. A reading of the order dated 10.6.1972 passed by the Commissioner shows that in his said order the Commissioner had held that the applications filed by respondent No. 3 were time barred and there was no provision in the Act, 1956 to rectify the irregularity or procedural defect in the demarcation proceedings. Consequently, the Commissioner had submitted a Reference before the Board of Revenue, who declined to pass any orders in the Reference on the ground that the demarcation proceedings were closed and can not be reopened under the Act, 1956. Affirming the aforesaid order passed by the Commissioner and the Board of Revenue, this Court while dismissing the Writ Petition No. 7639 of 1972 also held that in view of the notification issued under Section 9 of the Act, 1956, it was not open to respondent No. 3 to challenge the notification on ground of any procedural defect. The order dated 28.4.1978 was also upheld by the Supreme Court vide its order dated 22.10.1979 and through his aforesaid order the Supreme Court had only permitted the respondent No. 3 to raise the issue that the Goshalas were exempted from the operation of the Act, 1956. The facts narrated above show that the issue regarding procedural defect in the notification dated 19.6.1961 and whether the demarcation proceedings could be revived after the aforesaid notification had been finally adjudicated and the matter was not open before the Commissioner to be decided afresh. The order dated 4.8.1972 passed by the Board of Revenue is therefore, liable to be set aside.
8. Additionally, during the arguments in the present writ petition on a previous date, this Court vide its order dated 7.12.2016 was of the opinion that the issues arising for consideration in the matter, i.e., whether Goshalas were exempted by Part C of the Schedule appended to Section 1 of the Act, 1956 depended on the existence of any notification issued by the State Government and the State Government was the best authority to answer the said question. The Special Secretary, Revenue, Government of Uttar Pradesh, Lucknow has filed an affidavit dated 4.9.2018 stating that as per their records, no notification had been issued under Section 1 Part C of the Schedule of the Act, 1956 in relation to Goshalas. This Court after taking cognizance of the said affidavit, vide its order dated 24.1.2019, held that the issue regarding existence of notification under Section 1 Part C of the Schedule of the Act, 1956 was settled and no such notification exists.
9. Thus, for this additional reason, the proceedings instituted by respondent No. 3 before the Commissioner subsequent to the order dated 22.10.1979 passed by the Supreme Court also appear to be futile proceedings and no purpose would be served to remand back the matter to the Board of Revenue to pass fresh orders in the present case.
10. For the aforesaid reason, the writ petition is allowed. The order dated 27.11.1990 passed by the Board of Revenue is hereby quashed.
Order Date :- 26.2.2019 Anurag/-