Hon'ble Kashi Nath Pandey, J.
1. Smt. Shashi Agarwal-the petitioner no. 1 and Shri Varun Kaushik-the petitioner no. 2 have sought the relief against the order dated 20.7.2009 passed by Additional District Magistrate (Land Acquisition)/ Officer on Special Duty (Land Acquisition), Greater Noida, Gautam Budh Nagar, issuing directions in pursuance to his earlier order dated 16.5.2009, to attach the compensation received by them, and deposited in their bank accounts; and to recover it as arrears of land revenue. The compensation was paid to them for acquisition of 2.238 hectares of land, in Khata No. 184, Khasra No.798M by notifications under Section 4 (1)/17 dated 12.3.2008, and by notification under Section 6 (1)/17 dated 30.6.2008, issued by the State Government, by which 572.209 hectares of land was acquired. The possession of the acquired land was taken on 26.2.2009. The Additional District Magistrate (LA) has further directed that a reference be made under Section 30 in respect of 1/2 part of the land to the District Judge under Section 30 of the Land Acquisition Act, where a similar reference for the remaining half of the land in Khasra No.798M for the land acquired in the year 2001-2002, is still pending.
2. We have heard Shri S.K. Tyagi, learned counsel for the petitioners. Learned Standing Counsel appears for the State respondents. Shri Ramendra Pratap Singh appears for the Greater Noida Industrial Development Authority. Shri Uma Nath Pandey appears for Shri Gangan Singh, and Shri Nehpal Singh-respondent nos. 5 and 6.
3. Brief facts giving rise to this writ petition are that Shri Kartar Singh son of Shri Mangat Singh was the original tenure holder and bhumidhar of 2.238 hectares of land in Khata no. 184 Khasra no.798M (the land in dispute). He sold the land on 18.7.1974 to Shri Chandrapal, Shri Nehpal Singh and Shri Gangan Singh sons of Shri Makkhan Singh. On the same day the parties entered into an agreement of re-purchase, by which it was agreed that Shri Chandrapal and others-the purchasers of the land will sell the land within one year to Shri Kartar Singh. Shri Kartar Singh filed Original Suit No. 243 of 1975 in the Court of Additional Civil Judge, Bulandshahr for specific performance of the agreement of re-purchase of the land. He alleged that he did not hand over possession of the land to the defendants Shri Chandrapal and others, and that inspite of repeated requests to take back Rs. 12,000/- and to execute the sale deed to defendants, Shri Chandrapal and others did not come forward to execute the sale deed. The defendants did not deny the agreement of re-purchase. They stated that the plaintiff Shri Kartar Singh was never agreeable for specific performance of the agreement of re-purchase, as he did not have money to pay to the defendants. The defendants attended the office of the Sub Registrar, Sikandrabad on 18.7.1975. The plaintiff did not appear to pay the money and to execute the deed of repurchase. The trial court by its judgement dated 21.7.1978 dismissed the suit with the findings that the plaintiff Shri Kartar Singh was not willing to execute the sale deed after paying back Rs. 12,000/-. A First Appeal against the judgement was dismissed by the District Judge on 31.10.1979. Shri Kartar Singh filed a Second Appeal No. 611 of 1980, in the High Court, which was also dismissed on 20.3.1980.
4. It is alleged, that having lost in the suit for specific performance of contract of re-purchase of the land, Shri Kartar Singh, after a period of nine years, illegally sold the land to his brother-in-law Shri Hatam Singh son of Shri Rambal Singh on 04.7.1989, and that after about 15 years on 5.4.2004 Shri Hatam Singh sold the land in dispute on 5.4.2004 to Smt. Shashi Agarwal and Shri Varun Kaushik-the petitioners in this writ petition. By Notification under Section 6 (1)/17 of the Land Acquisition Act dated 30.3.2002, an area of 0.1518 hectares of land of the same Khata no. 184 plot no. 798M was acquired by the State Government. In the proceedings for determination of compensation a dispute arose between Shri Gangan Singh and others-the purchasers of the land from Shri Kartar Singh by sale deed dated 18.7.1974, and Shri Hatam Singh-the purchaser of land from Shri Kartar Singh on 4.7.1989, which was referred by the Special Land Acquisition Officer to the District Judge under Section 30 of the Land Acquisition Act. In a separate proceedings for determination of compensation, for acquisition of 2.238 hectares land of the same Khata No. 184, Plot No. 798M, by notification under Section 4 (1)/17 dated 12.3.2008 and the notification under Section 6 (1)/17 dated 30.6.2008, Smt. Shashi Agarwal and Shri Varun Kaushik-the petitioners, made a claim for payment of compensation on the basis of the sale deed executed by Shri Hatam Singh in their favour on 5.4.2004. They produced the documents of sale and the extracts of khataunies (record of title) in which their names were entered on the land in dispute. The Additional District Magistrate (LA), Greater Noida, Gautam Budh Nagar paid compensation to them under an agreement after making verification of the revenue records.
5. Shri Gangan Singh and others filed objections to the payment of compensation to Smt. Shashi Agarwal and Shri Varun Kaushik. The Special Land Acquisition Officer (LA) Greater Noida by his order dated 16.5.2009, rejected the objections on the ground that the objectors had purchased the land by the sale deed dated 18.7.1974. The land was sold by Shri Kartar Singh to some other persons on 4.7.1989. Shri Gangan Singh and others-the objectors did not file any application for recording their names in the revenue records. If no such application is moved for 12 years, the sale deed becomes inoperative and void. The same land was sold on 4.7.1984 to Shri Hatam Singh. Since Shri Hatam Singh had sold the land after a period of 15 years, the filing of the Original Suit No. 95 of 2007 for cancellation of sale deed was not justified. Further there is no order passed by any Court restraining the payment of compensation nor there is anything on record to show that any appeal is pending.
6. It is pertinent to state here that Shri Gangan Singh and others had filed a Suit no. 95 of 2007 in the Court of Civil Judge (Junior Division) Gautam Budh Nagar impleading Shri Kartar Singh, Shri Hatam Singh, Shri Varun Kaushik and Smt. Shashi Agarwal for cancellation of sale deed dated 4.7.1989, executed by Shri Kartar Singh in favour of Shri Hatam Singh and the sale deed dated 5.4.2004 executed by Shri Hatam Singh in favour of Smt. Shashi Agarwal and Shri Varun Kaushik. The plaintiffs had also claimed relief of an interim injunction restraining the defendants from executing the sale deed of the land in dispute in favour of any other person. The suit appears to have been dismissed on 26.8.2010 for want of prosecution. Shri Gangan Singh and others once again filed objections before the Special Land Acquisition Officer alleging that Smt. Shashi Agarwal and Shri Varun Kaushik do not have any right or title to the land in dispute as Kartar Singh had lost his rights in Original Suit No. 243 of 1975, which was dismissed on 21.7.1978 and against which the first appeal and second appeal were dismissed on 31.10.1979 and 20.3.1980 respectively. He had no right to sell the land on 4.7.1989 to Shri Hatam Singh and that Shri Hatam Singh did not acquire any title in the land to sell the land to Smt. Shashi Agarwal and Shri Varun Kaushik on 5.4.2004.
7. The Special Land Acquisition Officer (LR) Greater Noida, Gautam Budh Nagar relied upon a report of the District Government Counsel (Civil), Gautam Budh Nagar dated 17.7.2009 informing him that in respect of the acquisition of 0.1518 hectares of land of the same plot (vide Notification under Section 6 (1)/17 of the Land Acquisition Act dated 30.3.2002), the matter was referred under Section 30 of the Land Acquisition Act, which is numbered as Reference no. 21 of 2003, and is pending in the Court of Special Judge (SC/ST) Gautam Budh Nagar. When the original file was summoned by the District Judge, it came to his notice that the remaining land has also been acquired and thus for the remaining land also it will be appropriate to refer the matter under Section 30 of the Land Acquisition Act.
8. Shri Uma Nath Pandey, learned counsel appearing for Shri Gangan Singh and others submits that after purchasing the land on 18.7.1974, Shri Buddh Prakash Sharma and his uncle applied for mutation. The application remained pending at various stages, and is at present pending in the Board of Revenue. Shri Hatam Singh had filed the application for mutation before the Assistant Consolidation Officer. In the consolidation proceeding the Assistant Consolidation Officer did not pass any orders and had referred the matter to the Consolidation Officer along with his report. The Consolidation Officer had, without taking into consideration the report of the Assistant Consolidation Officer, kept the land outside the consolidation proceedings under Section 6 of the U.P. Consolidation of Holdings Act, 1963. There is no order of mutation on record in favour of Shri Hatam Singh. A forged and fabricated order dated 10.7.1991 of Assistant Consolidation Officer was produced by Shri Hatam Singh in proof of entries in his favour. No such order is available on record.
9. A supplementary affidavit has been filed by Shri Uma Nath Singh enclosing therewith an order of the Member, Board of Revenue, U.P. Lucknow in Revision No. 201/LR/1977-78 and Revision No. 194/LR/2007-08 between Chandrapal and others vs. Kartar Singh and others, arising out of the proceedings initiated by Shri Chandrapal son of Shri Makhan Singh on 12.9.1975 to mutate the names of Chandrapal, Nehpal Singh and Gangan on 1/2 part of Khata no. 798, area 9 bighas 10 biswas on the basis of sale deed executed by Shri Kartar Singh in their favour on 18.7.1974. Shri Kartar Singh filed objections that he was in possession of the land and that he had executed an agreement of re-purchase on the same day. The Naib Tehsildar rejected the mutation application, as he did not find Shri Chandra Pal in possession of the plot on the principle that the possession is the essence in mutation proceedings. The appeal filed against the order of the Naib Tehsildar was dismissed by the Additional Collector on 9.7.1996 observing that Shri Chandrapal was not in possession and that the application was belated. After Shri Kartar Singh had instituted a suit for specific performance on 01.8.1975, a revision filed against the order was rejected by the Additional Commissioner, Meerut on 24.11.1977. When the suit for specific performance was dismissed on 21.7.1978 and the first appeal and second appeal were dismissed on 31.10.1979 and 20.3.1980, Shri Chandrapal and others approached the Board of Revenue in Revision no. 201/77-78 against the order of the Additional Commissioner, Meerut dated 24.11.1977. The Member, Board of Revenue allowed the revision on 13.10.1982, on the ground that the recital of delivery of possession in the sale deed would be sufficient. The orders of revenue authorities were set aside and the names of the revisionists were directed to be mutated.
10. A review petition was filed in the Board of Revenue alleging that the order was passed ex-parte as no notice was given, and further that village Jalalpur was notified under Section 4 of the Consolidation of Holdings Act on 30.8.1980, and thus the revision stood abated under Section 5 (2) (a) of the U.P. Consolidation of Holdings Act, 1963. The review petition was heard and decided by a two-member bench of the Board of Revenue on 29.3.1989 accepting the contention that in view of notification under Section 4 (2) (a) of the U.P. Consolidation of Holdings Act, 1963 the proceedings should have been abated. Accordingly the order dated 13.10.1982 was set aside. Thereafter Shri Buddha Prakash (on behalf of Shri Chandrapal) filed a Review Application no. 15 L.R (1994-95) against the order of the two-member bench of the Board of Revenue dated 29.3.1989 on the ground that the order was ex-parte. The gazette notification under Section 4 (2) of the Consolidation of Holdings Act was repealed by notification under Section 6 (1) dated 22.2.1994. The review application was allowed on 27.8.2004 setting aside the abatement order and directing that the hearing should continue. Shri Kartar Singh challenged this order dated 27.8.2004 in the High Court in Writ Petition No. 14923 of 2005. On 7.3.2005 the High Court directed that the main revision shall be heard and decided on merits expeditiously.
11. On remand the Two-Member Bench held on 25.7.2005 that the revision will be heard by the Senior Member. On 2.4.2008 the Court observed that another Revision no. 194/LR/2007-08 relating to the same plot is pending in the Board of Revenue between Buddh Prakash (son of Chandrapal vs. Hatam Singh). Both the revisions were connected. Shri Arun Kumar Bit, Member, Board of Revenue by his order dated 7.3.2011 allowed both the revisions with findings summarised as below:-
"I have heard the arguments put forwarded by both the learned counsels. The following facts emerged out of the above:-
(1)The sale deed executed by Kartar Singh in favour of Chandra Pal and others on 18.07.74 remains undisputed. It is also undisputed that the specific performance suit by Kartar Singh for re-conveyance had been repeatedly rejected by Addl. Civil Judge on 21.7.78, by District Judge (Bulandshahar) on 31.10.79 and finally by Hon'ble High Court on 20.3.80. Till date, there is no order to controvert the above.
(2)Secondly, I would like to draw the attention of my illustrious predecessor Shri P.R. Vyas Bhiman who had elucidated in his judgment dated 13.10.82 that the recital of delivery of possession in the sale deed would be sufficient for the purpose of mutation. This view has not been controverted any where. Unfortunately, the review through which his order was set aside was on the ground of technical nature, i.e. the consolidation operation had started in the village and notification under section 4 (2) C.H. Act had been issued. However, annulment of the consolidation operation through notification 6 C.H. Act only restores it status quo-ante. The misfortune was that in between, several important years 'got lost'. But the basic principle enunciated in his judgment remained uncontroverted. I endorse his view-point.
(3)As the story unfolded, it became clear that Kartar Singh executed another sale deed in favour of Hatam Singh on 04.7.89 and Hatam Singh managed to get a mutation order from the consolidation authorities which the Naib Tehsildar found as fraud as it was not based on any valid order. Otherwise also, since the consolidation operation was ultimately withdrawn/cancelled, the order of Consolidation Officer, if at all, should not have continued in the revenue records. Also, since the legal title of Hatam Singh was not valid, any sale deed executed by him in favour of Shashi Aggarwal was also illegal.
(4)Even if we consider all the sale deeds in consequence, the established principle is that "the first sale deed takes precedence over the second" - and that "when there is a competition between the two documents, relating to the same property, both being registered, the subsequent sale will have no application." In the instant matter the legality of first sale deed dated 18.7.74 remains legally valid.
(5)S.C.O. (Dadri) in his judgement had observed that the entry of the name Hatam Singh in revenue record was not substantiated out of any valid mutation order. However, he kept the matter in abeyance since the matter was subjudice in Board of Revenue. The contention of the O.P is that Kartar Singh had obtained a permission on 01.6.89 from consolidation officer for sale of the plot. Even if this contention is accepted, the fact remains that on the principle mentioned in the preceding paragraph, this would not have any precedence over the sale deed already executed by Kartar Singh on the same property way back on 18.7.74.
Consequent on the logic and arguments mentioned above, I once again uphold the right of Chandrapal and others which they should have obtained long time back, on the basis of sale deed dated 18.7.74 immediately after the suit for specific performance filed by Kartar Singh got rejected by Hon'ble High Court. It was sheer chicanery on the part of Kartar Singh to execute a sale deed in favour of his brother-in-law, knowing fully well about the litigations already involved. Otherwise also, any other sale-deed executed on this property subsequently will not get any precedence at all. The names of the revisionists should therefore get mutated in the revenue records. However, since the disputed land has been acquired by Greater Noida Authority, the land remains no more agricultural and therefore they may now approach the competent authority for their claim for compensation of land acquisition. I sincerely hope that justice, although delayed, will no longer remain denied.
Both the revisions are accordingly allowed with the above observations."
12. From the aforesaid discussion, it is clear beyond doubt that Kartar Singh, having failed in the suit for specific performance of agreement of re-purchase, and having lost upto High Court in Second Appeal No. 611 of 1980 (dismissed on 20.3.1980), sold the land on 4.7.1984 to his own brother-in-law Shri Hatam Singh. Shri Hatam Singh applied for mutation but did not succeed. He could only produce a permission dated 1.6.1989 from Consolidation Officer for sale of plot. Shri Hatam Singh did not get any right on the land from Kartar Singh, who had sold the land on 18.7.1974 and did not succeed in specific performance of agreement for repurchase of the land. The name of Hatam Singh was never recorded on the land in dispute. The Board of Revenue, in the mutation proceedings initiated on the application of Shri Chandra Pal on 12.9.1975, found that there is no order of consolidation officer recording the name of Shri Hatam Singh. He had no right or title over the land nor his name was recorded in the revenue records. The sale deed executed by him in favour of Smt. Shashi Agarwal and Shri Varun Kaushik-the petitioners in this writ petition did not transfer any right or title in the land. The sale deed was a void document and on that basis neither any mutation could be ordered nor Smt. Shashi Agarwal and Shri Varun Kaushik were entitled to claim compensation.
13. We further find that Smt. Shashi Agarwal and Shri Varun Kaushik have neither pleaded nor brought on record any evidence on record to show that they are bonafide purchasers for value. They have brought on record (in the supplementary affidavit, a sale deed dated 5.4.2004, of the half portion of 2.2382 Hectare land, executed by Hatam Singh for Rs. 12, 39, 000/-, on which stamp duty was paid at the circle rate of Rs. 1, 40, 000/- per Hectare i.e. Rs. 140/- per square meter, on the basis of which they received compensation of Rs. 82, 92, 500/- in May, 2009.
14. The order passed by the Board of Revenue clearly establishes that the proceedings of mutation initiated on the application of Shri Chandra Pal son of Shri Makhan Singh on the basis of sale deed dated 18.7.1974, executed by Shri Kartar Singh were pending since 12.9.1975. It is unfortunate that their application, for various reasons could not be decided and was finally considered and allowed after about 36 years on 10.2.2011. The delay cannot be held attributable to them as they continued to pursue their application, which underwent several legal obstacles specially on the notification issued under Section 4 (2) of the Consolidation of Holdings Act.
15. Shri S.K. Tyagi, learned counsel for the petitioners submits that the petitioners' were recorded in the revenue records since the year 2004. They were entitled to receive compensation on the basis of sale deed executed by Shri Hatam Singh, who was recorded tenure holder. The pendency of another application under Section 30 in respect of the earlier acquisition of a portion of the land of the same plot could not be a ground to direct attachment and recovery of the amount, which was already paid to the petitioners. In the earlier reference Shri Hatam Singh is a party.
16. Shri S.K. Tyagi has relied upon a Division Bench judgement of this Court in Vishnu Kumar and another vs. State of UP and others (1990) 1 UPLBEC 613 in which it was held that despite the fact, that the Special Land Acquisition Officer was aware that the opposite party has no right or title, the compensation was paid to them, he should have referred the matter under Section 64 of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1966 to the Tribunal constituted for determining the interest of the persons claiming compensation. The petitioners were purchasers from the previous owners, who ceased to have any right over the land and thus it was incumbent upon the Land Acquisition Officer to make an enquiry into the matter and thereafter pay the compensation. Where the compensation has been paid even without referring the matter to the Tribunal, it is for them to be blamed. The rightful owner cannot be allowed to suffer. The matter in the circumstances should have been referred to the Tribunal. While allowing the writ petition, a writ of mandamus was issued to the Tribunal to refer the matter under Section 64 of the Act within three weeks.
17. Shri Uma Nath Singh, on the other hand, submits that Shri Kartar Singh and thereafter his brother-in-law Hatam Singh played a fraud on the contesting respondents. Shri Hatam Singh got his name recorded in the revenue records by a fraudulent order passed by the Assistant Consolidation Officer. Having lost his rights upto the High Court Shri Kartar Singh executed the sale deed in favour of his brother-in-law Hatam Singh, who in turn sold the land to the petitioners after 15 years. All this times Shri Chandrapal Singh and others, who had earlier purchased the land from Shri Kartar Singh on 18.7.1974, were contesting the mutation application, the decision on which was delayed by 36 long years. They, however, did not loose their rights in between as order of mutation may be a proof of title but not a title by itself.
18. In Sharda Devi vs. State of Bihar and another (2003) 3 SCC 128 the Supreme Court held that for reference under Section 30 unlike Section 18 (1), no application in writing is required. The prayer can be made orally or in writing or the reference may be made suo motu by the Collector, without anyone having invited the attention of the Collector for making the reference. If the Collector makes a reference, it may be decided by the court subject to its forming an opinion that the dispute was capable of reference and determination under Section 30 of the Act. In case the Collector refuses to make a reference under Section 30 of the Act, the person adversely affected by withholding of the reference or refusal to make the reference, shall be at liberty to pursue such other remedy as may be available to him under the law, such as filing a writ petition or a civil suit. The power of reference under Section 30 in the absence of any limitation provided under the Act has to be exercised within a reasonable period depending upon the facts and circumstances of the case.
19. We do not find that the Additional District Magistrate (LA) Greater Noida has committed any error in law in referring the matter to determine as to who is the person interested in award of compensation, and for its adjudication by the court under Section 30 of the Land Acquisition Act. A reference under Section 30 between Hatam Singh and the contesting respondents in respect of the part of the same Khata acquired in the year 2002, is pending, and thus the claim of compensation can be decided by the District Judge by connecting both the matters.
20. Coming to the order of the Additional District Magistrate (LA), Greater Noida for attachment of the bank accounts of the petitioners, and for recovery of the amount from them, until the decision of the reference under Section 30 of the Act, we may observe here that in view of the facts as narrated by us we are prima facie of the opinion that Kartar Singh and his brother-in-law Shri Hatam Singh played fraud on Smt. Shashi Agarwal and Shri Varun Kaushik-the petitioners in selling half portion of the land to them by the sale deed dated 5.4.2004. Shri Kartar Singh had lost his rights for repurchase of the land from Shri Chandrapal and others upto the High Court in Second Appeal No. 611 of 1980, which was dismissed on 20.3.1980. Firstly Shri Kartar Singh having lost the litigation upto High Court sold the land to his brother-in-law Shri Hatam Singh on 4.7.1989, and thereafter Shri Hatam Singh, knowing fully well that Shri Kartar Singh had lost upto High Court and that the application of Chandrapal and others, for mutation is still pending, by misrepresentation without having any right or title of the land, sold it to the petitioners on 5.4.2004. Further we also find that Shri Hatam Singh relied upon a forged and fabricated order of the Assistant Consolidation Officer, for recording his name over the plots. He was contesting the matter with Chandrapal and others for payment of compensation for acquisition of the part of the land of the same Khata in the year 2002. The reference under Section 30 of the Act, dated 13.8.2003 was pending when he sold the land to the petitioners on 5.4.2004.
21. We do not find any equity in favour of the petitioners. They have deliberately withheld the sale deeds and have neither pleaded nor established before us that they are bonafide purchasers for value of the land, and did not have knowledge of previous litigation. There is no averment in the writ petition, that either Hatam Singh or the petitioners were in possession of the land at any time.
22. In K.D. Sharma vs. Steel Authority of India Limited and others (2008) 12 SCC 481 the Supreme Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution of India is extraordinary, equitable and discretionary. Prerogative writs are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything, and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "we will not listen to your application because of what you have done." The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.
23. In the present case we find that the petitioners have withheld necessary facts from this Court, and are thus not entitled to any relief for even a temporary stay of the order for recovery of the compensation until a reference under Section 30 is decided.
24. The writ petition is dismissed with costs quantified at Rs.50,000/- (Rupees Fifty thousand only) to be paid by the petitioners. The petitioners will deposit the costs in the 'High Court Legal Services Committee, Allahabad', within one month.
Dt.23.9.2011 RKP/