JUDGMENT G.P. Mathur, J.
1. This writ petition under Article 226 of the Constitution has been filed praying that a writ of mandamus be issued to the respondents (1) to recall the Notification No. 4429/VII-101/84-86 dated 23.8.1986 and the letter No. 120/VII-DLRC/84-86 issued by the District Magistrate and (2) to cancel the notification Issued by the Commissioner vesting the land in Ghaziabad Development Authority and making amaldaramad (mutation) of the name of the Ghazlabad Development Authority in the revenue papers, and also (3) to issue a writ of quo warranto calling upon the Commissioner, Meerut Division, Meerut to show under what authority he has issued the aforesaid notification.
2. The writ petition was nominated to another Bench on 8.11.2001, but as the said Bench declined to hear it, the Hon'ble the Chief Justice passed a fresh order nominating the present Bench. The case was thereafter heard on 12.12.2001.
3. The U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) (in short U.P.Z.A. and L.R. Act) was enacted to provide for abolition of the zamindari system which involved intermediaries between the tiller of the soil and the State in the Uttar Pradesh and for acquisition of their rights, title and interest and to reform the law relating to the land tenancy consequent upon such abolition and acquisition and to make provision for other matters connected therewith. The Act was published in the gazette on 26.1.1951 and came into force at once. Section 4 (1) of the Act provided that the State Government may, by notification, declare that, as from a date to be specified, all estates situate in Uttar Pradesh shall vest in the State and, as from the beginning of the date so specified (hereinafter called the date of vesting), all such estates shall stand transferred to and be vested, except as thereafter provided in the Act, in the State free from all encumbrances. The notification contemplated by this sub-section was issued on 1.7.1952 and zamindari stood abolished in the State of Uttar Pradesh from the said date. Section 6 provided for the consequences of the vesting of an estate in the State and it clearly lays down that when the notification under Section 4 has been published in the gazette, all rights, title and interest of all the intermediaries in every estate in such area and in all sub-soils in such estates including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State of Uttar Pradesh free from all encumbrances. Therefore, with effect from 1.7.1952 all rights, title and interest in every estate and in all sub-soils in such estates stood vested with the State of Uttar Pradesh free from all encumbrances. Sub-section (1) of Section 117 of the Act provided that at any time after the publication of the notification referred to in Section 4, the State Government may, by general or special order to be published in the manner prescribed, declare that as from the date to be specified in this behalf, all or any of the things specified in Sub-section (1) like lands (except lands for the time being comprised in any holding or grove), trees (other than trees in holding or grove or abadi), fisheries, tanks, ponds, pathways and abadi sites etc., which had vested in the State under the Act, shall vest in the Gaon Sabha or any other local authority established for the whole or part of the village. The action impugned here was taken under Sub-section (6) of Section 117 and, therefore, the same is being reproduced below :
"(6) The State Government may at any time, by general or special order to be published in the manner prescribed, amend or cancel any declaration, notification or order made in respect of any of the things aforesaid, whether generally or in the case of any gaon sabha or other local authority, and resume such things, and whenever the State Government so resumes any such thing, the gaon sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things :
Provided that the State Government may after such resumption make a fresh declaration under Sub-section (1) or Sub-section (2) vesting the thing resumed in the same or arty other local authority (including a gaon sabha), and the provisions of sub-sections (3), (4) and (5), as the case may be, shall, mutatis mutandis apply to such declaration."
4. There is no dispute that as contemplated by Sub-section (1) of Section 117, a general order was published and management and possession of all lands (except the land for the time being comprised in any holding or grove), forests, etc. vested in the gaon sabha. This fact is admitted also in ground No. 1 of the writ petition. The Commissioner, Meerut Division, Thereafter, passed an order on 23.8.1986, by which large number of plots of village Makanpur, Pargana Loni, Tehsil Dadri, district Ghaziabad, were resumed. It is this order of resumption which is the subject-matter of challenge in the writ petition. The copy of the order filed by the petitioners as Annexure-5 to the writ petition is wholly incorrect and a correct copy of the same has been filed as Annexure-1 to the supplementary counter-affidavit (sworn by Anand Swaroop Sharma) filed in Court on 11.12.2001.
5. Sri W. H. Khan, learned counsel for the petitioner, has submitted that the Commissioner had no authority to pass the impugned order as he exercised a delegated power which did not confer on him such an authority. He further submitted that before passing the impugned order, it was the duty of the Commissioner to examine whether the petitioners have matured any rights like that of sirdar or asami and since under Sub-section (1) of Section 117 only possession and management is vested with the gaon sabha and not the title, consequently, if the gaon sabha is not in possession, nothing can be taken over.
6. Along with the supplementary counter-affidavit, copies of several notifications have been filed which show that initially the State Government vide notification dated 7.5.1981 delegated the power under Sub-section (6) of Section 117 of the Act to resume all or any of the things specified in Clauses (i), (ii) and (iii) of Sub-section (1) of Section 117 vested in the gaon sabha/local authorities to the Collector where market value did not exceed Rs. 25,000, and to the Commissioner where the market value exceeded Rs. 25,000. This notification was partly modified by another notification dated 16.6.1981 and it was clearly specified therein that the Collector can exercise the power of resumption only where market value of the things did not exceed Rs. 25,000, and for the remaining the power could be exercised by the Commissioner. The Commissioner, Meerut Division, then passed an order on 23.8.1986 for resumption of 122 bighas 8 biswas (76.50 acres) land of village Makanpur covering large number of plots including those over which the petitioners claim some sort of rights.
7. A perusal of the order dated 23.8.1986 would show that it merely says that the plots mentioned in the order, which were vested with the gaon sabha, had been resumed by the State Government. Section 117 finds place in Chapter VII relating to gaon sabha and Land Management Committee and it deals only with the aforesaid bodies. The scheme of the Act is that after the publication of the notification under Section 4, all the estates vested in the State free from all encumbrances. Exercising power under Sub-section (1) of Section 117, the State Government vested the management and possession of the lands, etc. In the gaon sabha. Subsection (6) of Section 117 conferred power upon the State Government to resume such things which had vested in the gaon sabha or other local authorities under Sub-section (1) of the same section. The effect of the order passed by the Commissioner was that what had vested with the gaon sabha was resumed by the State Government. This order did not in any manner affect the right or title of the petitioners. It was a transaction involving only two parties, namely, the State Government and the gaon sabha concerned. Therefore, the only party which could be aggrieved by such an order was the gaon sabha and not the petitioners. The petitioners have, therefore, no focus standi to challenge the order passed by the Commissioner by which the plots mentioned in the order were resumed by the State Government.
8. Learned counsel for the petitioners has contended that they had matured rights over Plot No. 735 and, therefore, it could not be resumed by the State Government. It has not been clearly specified in the writ petition as to what kind of rights were matured by the petitioners. The pleadings are not only vague but they are self-contradictory, which is illustrated as under :
"Paragraphs 3 to 6.--Petitioners claim to be zamindar of the plot, then sir-holders and khudkasth-holders under Agra Tenancy Act. 1926.
Paragraph 7.--Plot was recorded as banjar in 1359. 1361 and 1365 fasli.
Paragraph 8.--Petitioners occupied the plot somewhere in 1956 (1364 fasli) and their names were entered in 1364, 1365 and 1369 fasli.'
9. If the petitioners were sir-holders, they would have automatically got the highest rights under the Act and would have become bhumidhar of the plot in dispute under Section 18 of the Act Immediately on the date of vesting, i.e., on 1.7.1952 and they would have been recorded as such in the khatauni of basic year viz., 1359 fasli and the said entry would have continue throughout. The land would have been under their personal cultivation right from 1.7.1952 corresponding to 1359 fasli. The said land could not be vested with the gaon sabha under Sub-section (1) of Section 117 of the Act being a land comprised in a holding. Consequently, the State Government could not resume the land under Sub-section (6) of Section 117. It is also the case of the petitioners that the land was recorded as banjar in 1359 fasli. Banjar land means a land which is neither the abadi land of a person nor is a cultivable land and it always vests with the gaon sabha. Thereafter, the petitioners say that they occupied the land in 1956 (1364 fasli). Therefore, the petitioners have come out with wholly contradictory stand which shows the falsity of the case set up by them. The petitioners somehow want to grab the land in dispute.
10. Sri Khan has next submitted that twice proceedings under Rule 115D of the U.P.Z.A. and L.R. Rules (for short, the Rules) were initiated against the petitioners, but they were dropped and, thereafter, no suit was instituted, and, consequently, they have perfected title over the plot in dispute. Section 122B of U.P.Z.A. and L.R. Act, as it stood at the relevant time, provided that where any property vested in a gaon sabha is damaged or misappropriated by any person or any land is occupied otherwise than in accordance with the provisions of the Act, the Land Management Committee shall take steps to recover compensation for damage and for recovery of the possession of the land. Sub-section (3) of Section 122B of the Act provided that the procedure to be followed in any action taken shall be such as may be prescribed. Sub-
section (2) of Section 122B of the Act as it stood at the relevant time reads as follows :
"(2) Where the Land Management Committee or the local authority falls to take action in accordance with the provisions of Sub-section (1) within a period of six months from the date of wrongful occupation, and one month from the date of damage or misappropriation, the Collector may, except in a case involving a bona fide question of title, on an application of the Chairman, Member or Secretary of the Land Management Committee or the local authority, as the case may be, or on facts coming to his notice otherwise, take steps for the ejectment of the person in wrongful occupation of the land and for recovery of compensation for wrongful occupation of the land and for damage to, or misappropriation of the property."
11. Rule 115D of the Rules provided that where the Land Management Committee failed to take any action under Sub-section (1) of Section 122B, the Collector may, except in a case involving a bona fide question of title, on an application of the Chairman or Secretary of the Land Management Committee, call upon the person concerned through a notice in Z.A. Form No. 49A to remove the wrongful occupation. It is noteworthy that the power under Section 122B of U.P.Z.A. and L.R. Act could be exercised by the Collector where bona fide question of title was not involved. This is a summary proceeding and was tried before a Tehsildar. The rights of the parties were not determined in this proceeding nor there was any declaration of title of a person who claimed to be in occupation of the land or the property. Annexure-1 to the writ petition shows that a notice was issued to the petitioners on the ground that they had encroached upon the gaon sabha land. The petitioners contested the notice and the Tehsildar directed their eviction. The petitioners filed a revision in which a reference was made by an Additional Commissioner as at that time he had no power to allow the revision. The Board of Revenue quashed the proceedings only on the ground that the petitioners were recorded in possession in 1364, 1365 and 1369 fasli. Annexure-3 shows that proceeding under Section 115D of the Rules were again initiated before the Tehsildar, Dadri, which was registered as Case No. 117 of 1981. The proceedings were dropped by the order dated 14.10.1981 with the observations that the petitioners had been recorded in class 4 in 1370 fasli and also in 1389 fasli. Entry of class 4 means "unauthorised occupation of gaon sabha land". These orders were passed in summary proceedings for eviction of unauthorised occupants and at the relevant time did not confer any kind of right upon the party to whom the notice was issued and proceedings were initiated.
12. A very important feature of the case is revealed from the averment made in paragraph 18 of the writ petition. The petitioners themselves filed a suit under Section 229B of the U.P.Z.A. and L.R. Act for declaration that they are sirdars of the plots but they withdrew the suit on 10.1.1978 with permission to file a fresh suit. Section 229B provides that any person claiming to be a bhumidhar, sirdar or asami may sue the land-holder for declaration of his rights. This is a very important provision where all those persons, who claim any kind of right over the land, can file a suit for declaration of their title. According to Section 331, read with II Schedule, the suit is cognizable by Assistant Collector, Ist Class, who is a Sub-Divisional Officer. It is not cognizable by a Tehsildar. Sub-sections (3) and (4) of Section 331 provide for a first appeal and a second appeal against the judgment and decree of the Assistant Collector to the Commissioner and Board of Revenue, respectively. The petitioners after having instituted the suit for declaration of their rights withdrew it and did not file any other suit. Thus, the petitioners after having chosen the remedy for declaration of their title did not pursue it and abandoned the same.
13. Sri W. H. Khan has lastly urged that the proceedings initiated under Section 122B of the U.P.Z.A. and L.R. Act read with Rule 115D of the U.P.Z.A. and L.R. Rules having been dropped, the petitioners have perfected their title over the plot by adverse possession. As mentioned earlier, these are summary proceedings which are initiated by a notice and are tried by a Tehsildar. The section and the Rule use the expression except in a case involving a bona fide question of title. If any dispute of title is raised, the proceedings have to be dropped. There could be no declaration of title of any person in these proceedings. The petitioners filed suit under Section 229B of the Act to get a declaration of their right but they withdrew the same. The rights of the petitioners cannot be declared in proceedings under Article 226 of the Constitution as the same requires examination of oral and documentary evidence. The U.P.Z.A. and L.R. Act provides a remedy, namely, filing of a suit under Section 229B which the petitioners did not pursue as they had no case.
14. Sri Khan has also submitted that no suit having been filed for ejectment by the gaon sabha under Section 209 of the Act, the petitioners have matured rights under Section 210 of the Act. The period of limitation for filing a suit by the gaon sabha has been amended several times and in such a manner that no one can mature rights over the gaon sabha land by adverse possession. The last amendment which was made by U.P. Land Laws (Amendment) Act, 1976, before expiry of the period then prescribed for filing of the suit, reads as follows :
"For Section 210 of the principal Act, the following section shall be substituted and be deemed always to have been substituted, namely :
"210. If a suit for eviction from any land under Section 209 is not instituted by a bhumidhar, sirdar or asami, or a decree for eviction obtained in any such suit is not executed by him, within the period of limitation provided for the institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall :
(i) where the land forms part of the holding of a bhumidhar or sirdar, become a sirdar of such land, and the rights, title and interest of an asami, if any, in such land shall be extinguished ;
(ii) where the land forms part of the holding of an asami, on behalf of the gaon sabha, become an asami thereof holding from year to year."
15. The result of this amendment was that the effect of non-filing of the suit against the gaon sabha as contemplated in Section 209 (1) (b) of the Act, which was provided in Sub-section (iii) of Section 210, was taken away. It has been held by several decisions of our Court that after the aforesaid amendment, a person in possession for 12 years over the property of a gaon sabha would not acquire sirdari rights. It has been further held that the amendment having been given retrospective effect means that a trespasser even from July, 1952, could not acquire sirdari rights on the land belonging to gaon sabha (See Bhurey v. Board of Revenue, 1984 AWC 561 : 1984 RD 294 and Chatar Singh v. Sahayak Sanchalak, Chakbandi, U.P. Lucknow and Ors., 1979 RD 226). It is, therefore, obvious that the petitioners have not matured any kind of rights over the gaon sabha land.
16. Before parting with the case, it may be placed on record that the petitioners filed a wrong copy of the order of the Commissioner. The order was passed by the Commissioner on 23.8.1986 but the writ petition was filed almost after 3 years on 18.5.1989. There is no explanation for the inordinate delay in filing the writ petition. The petition is liable to be dismissed on the ground of laches.
17. For the reasons mentioned above, we are clearly of the opinion that the petitioners have failed to show that they have any right or title over the plot in question and further they have neither any right nor any locus standi to challenge the order of the Commissioner by which the land which had vested in the gaon sabha was resumed by the State Government.
18. The writ petition lacks merit and is dismissed with costs. Stay order is vacated.