IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Single No. 629 of 1991 and Misc. Single Case No. 654 of 1991
Decided On: 05.02.2019
Divyanand
Vs.
S.D.O., Sandeela and Ors.
Hon'ble Judges/Coram: Sangeeta Chandra, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.C. Mishra and Awadhesh Kumar
For Respondents/Defendant: C.S.C.
JUDGMENT
Sangeeta Chandra, J.
1. Order on Application No. 137206 of 2018
Application No. 137206 of 2018 has been filed on 5.12.2018 praying for recall of order dated 19.11.2018 passed by this Court dismissing the writ petition for want of prosecution.
The restoration application is allowed. The order dated 19.11.2018 is recalled.
The writ petition is restored to its original number.
Order on substitution and Condonation of delay application
While arguing the matter, learned Counsel for the petitioner has pointed out that the sole petitioner, Divya Nand died on 3.1.2014 at his residence and that he had formed Divya Nand Central Foundation and got it registered under section 25 of the Companies Act, 1956. After the death of the sole petitioner, the Managing Body of the above said Foundation on 28.2.2015 passed a resolution authorising Sri Teerth Singh Rekhi son of late Kartar Singh Rekhi to contest all cases pending before this Court in place of the sole petitioner. Therefore, an application for substitution of the petitioner has been moved along with an application for condonation of delay, such application has also been taken up today and delay has been condoned.
The Substitution application is treated to have been filed in time.
The substitution application is allowed.
In place of sole petitioner - Divya Nand, it be noted as "since deceased" and the applicant Teerth Singh Rekhi be substituted as petitioner No. 1/1.
Order on order sheets
1. This writ petition has been restored today and since the matter was twenty four years old, the Court requested Counsel for the petitioner to argue on merits also.
2. It has been submitted by the learned Counsel for the petitioner that late Divya Nand had been granted a Sanad by the State Government under section 126 of the U.P.Z.A. & L.R. Act to carry out plantation of trees on Gaon Sabha land. A copy of such Sanad executed by the Block Development Officer, Sandeela, Hardoi in favour of late Divya Nand has been filed as Annexure 2 to Writ Petition No. 629 (M/S.) of 1991. As per the Sanad so executed, the petitioner was to take over possession of 14 plots of land measuring about 200 Bighas, and to plant different types of trees thereon whose numbers have been indicated in the said Sanad.
3. On the basis of such Lease deed dated 21.8.1978, late Divya Nand planted trees in the land in question. It has been submitted that in the Sanad there was no provision that the same can be cancelled at any point of time by the Government. It could be repossessed only on acquisition of land for public purpose. Since, late Divyanand was in possession over the several plots of land as mentioned for a long time, during the consolidation proceedings, his name was also recorded over the disputed land by the Consolidation Officer. A copy of the order dated 10.9.1986 passed by the Consolidation Officer has been filed as Annexure 2.
4. It has been submitted that the respondents did not assail the order of the Consolidation Officer any further by filing any Appeal or Revision and as such the order of Consolidation Officer became final between the parties and the petitioner was declared Bhumidhar of the land over Plot Nos. 32 and 33. He installed a tube-well and constructed a building thereon which is being used as a charitable Hospital and also as a College of Naturopathy. All of sudden on 13.4.1991, late Divyanand received a notice under Z.A. form No. 49-A referring to his possession as illegal and un-authorised occupation of Gaon Sabha land and directing him to show-cause by 15.4.1991 as to why he should not be evicted from Gaon Sabha land and damages to the tune of ` 9,60,000/- be recovered from him.
5. It has been submitted by the learned Counsel for the petitioner that the petitioner tried to contact the Sub-Divisional Officer who had issued such notice and tried to submit his reply, but he was deliberately not heard, and an order was passed ex-parte. The petitioner moved an application for recall of ex-parte order which was also not considered. The petitioner has therefore approached this Court against the notice dated 13.4.1991.
6. It has been argued by Sri Avadhesh Kumar that the petitioner was not in unauthorised occupation of Gaon Sabha land as a Lease had been entered into by the Block Development Officer with him to plant one lakh trees over the 200 Bighas of Gaon Sabha land. Even if his possession and occupation thereof was initially illegal, the same was legalised after the Consolidation Officer passed an order in his favour on 10.9.1986. The order of the Consolidation Officer was not challenged any further. It was not open for the State respondents to issue any notice under section 122-B of the U.P.Z.A. & L.R. or initiate proceedings under Rules 115-C and 115-D of the U.P.Z.A. & L.R. Rules.
7. It has been submitted by the learned Counsel for the petitioner that when the petition was filed, it was entertained by cms Court and an interim order was granted on 15.4.1991 that till the next date of listing, the petitioner shall not be dispossessed from the disputed plots and the building existing thereon, and the parties were to maintain status quo with regard to trees standing on the disputed land. Despite such an order being passed by this Court, the SDO passed an order on 15.4.1991 constituting the proceedings initiated under section 122-B of the U.P.Z.A. & L.R. Act and directing his eviction from the 14 plots in dispute, and also asking him to pay damages to the tune of 9,60,000/-.
8. It has been submitted by the learned Counsel for the petitioner that such an order was passed in the teeth of the interim order granted by this Court. It was not open for the respondents to proceed any further, once there was a direction for maintenance of status quo.
9. Therefore, the petitioner - late Divya Nand filed Writ Petition No. 654 (MS) of 1991 on 22.4.1991. This Court again granted an interim order staying the order dated 15.4.1991 till further orders and it was further directed that no interference shall be made by the opposite parties in respect of functioning of the Hospital and Vidyalaya, which were being run by the petitioner.
10. Learned Counsel for the petitioner has submitted that from the orders impugned, it is apparent that without there being any material on record, it has been held by the Sub-Divisional Officer that the petitioner is in unauthorised occupation. The SDO had ignored the Sanad/Lease dated 21.8.1978 and also the order of the Consolidation Officer dated 10.9.1986.
11. Sri R.B. Singh learned Counsel for the State respondents on the other hand has placed reliance upon the counter-affidavit filed by the Tehsildar, Sandeela on behalf of all the respondents and also the order passed by the SDO dated 15.4.1991 impugned in Writ Petition No. 654 (MS) of 1991. It has been submitted that in pursuance of an order passed by the District Collector, an enquiry was instituted and a report was submitted by the Area Lekhpal before the SDO, Sandeela. The SDO also visited the plots in question and taking cognizance of the alleged Sanad/Lease dated 21.8.1978, a report was called for from the office of the Block Development Officer, Sandeela regarding the authenticity of the Sanad. A report was submitted by the Block Development Officer that no record was available in his office with regard to grant of such Sanad, the SDO also inquired from the Gram Pradhan of Gaon Sabha in question whether any proceedings for allotment of land through resolution passed by the Land Management Committee had ever taken place. It was reported by the Gram Pradhan that no such proceedings had taken place at any point of time.
12. On the basis of report of the Area Lekhpal dated 6.3.1996 and the enquiry held by the Naib Tehsildar thereafter on 9.3.1991, and again on 9.4.1991, the SDO was satisfied that the petitioner was in illegal occupation of Gram Sabha land and had issued notice under section 122-B of the Act read with Rule 115-C of the Rules framed thereunder. The notice in Z.A. Form No. 49-A was issued on 13.4.1991 and date was fixed for hearing on 15.4.1991. The petitioner deliberately failed to appear on the said date, when all facts were considered and a detailed order was passed by the SDO on 15.4.1991 which has been impugned in Writ Petition No. 654 MS of 1991.
13. The existence of any Sanad/Lease has been seriously disputed by the State respondents. It has been submitted that there is no question of giving Lease for plantation of trees over Gaon Sabha land reserved for pasture or charagaah. For the first time, a Government Order was issued on 13.12.1985 where there is mention of grant of Leases to persons who wish to undertake afforestation on Gaon Sabha land. There was no such provision at all in 1978 and no such authority was vested with the Block Development Officer to issue such a Lease for a huge tract of land measuring more than 200 Bighas.
14. With regard to Consolidation proceedings also, and the alleged order passed therein by the Consolidation Officer, it has been submitted that the petitioner has admitted that he had got Plot Nos. 32, 33 & 34 which are adjoining plots through sale-deeds from their erstwhile Bhumidhars of the land, Ram Swaroop, Shambhunath and Satya Swaroop etc.
15. Having heard the learned Counsel for the parties, this Court has carefully gone through all the records that have been referred to by the learned Counsel for the petitioner and filed along with memo of the writ petition.
16. Late Divya Nand was to plant 25,000 ornamental trees, 50,000/- timber trees, and 25,000 fruit trees. Thus a total number of one lakh trees had to be planted in more than 200 bighas of land. The lessee was to enjoy the fruits, flowers, and other produce of such trees, but he could not use the land for any other purpose. The ownership of the land was not transferred only possession for the purpose had been given a forestation.
17. It is apparent from the bare perusal of the alleged Sanad dated 21.8.1978 that it was issued by the Block Development Officer, Sandeela, Hardoi wherein permission was granted for afforestation over land reserved for Charagah and Parti land of the Gaon Sabha.
18. The lessee had to plant one lakh trees within a period of three months from the date of taking possession. He could not cut down any trees without permission from the competent Authority. The lessee had to maintain the trees and was entitled to their produce, but the ownership of the land remained in the Gaon Sabha. In condition No. 8 of the lease, it was specifically provided that on the land on which the trees are being permitted to be planted, the lessee will have no right and he could use the land only for the purpose of afforestation and no other purpose.
19. On consideration of the order passed by the Consolidation Officer, this Court has found that the Consolidation Officer had noted that the case was instituted over land of Khata No. 364, which was recorded in the names of Ram Swaroop, Shambhunath and Satya Swaroop, all heirs of one Ram Pratap. During Partial, it was found that Plot Nos. 32, 33 & 34 had been occupied illegally by Santpal Yog Sadhana Kendra run by late Divya Nand for the past 15 to 20 years. The private respondents had not filed any objection to the affidavit filed by late Divya Nand and the case was decided ex-parte against them. Late Divya Nand had appeared and stated that he was in adverse possession over Plot Nos. 32, 33 & 34 for more than 20 years. He had also produced two witnesses who also deposed that the land was in possession of late Divya Nand who had set up his tubewell and constructed rooms thereon. The Consolidation Officer therefore on the basis of such submission made by late Divya Nand and his two witnesses decided that the names of the erstwhile recorded tenure holders, Ram Swaroop, Shambhunath and Satya Swaroop etc. be scored out and the name of the petitioner be recorded as Bhumidhar.
20. Even if both the documents, photocopies of which have been filed along with petition are taken to be true on their face value alone, it can only be said that the petitioner was in unauthorised possession/adverse possession and had made unauthorised construction over the land in dispute.
21. The SDO has considered all these facts and had passed a detailed reason and speaking order on 15.4.1991 wherein he has framed two points for determination which are as follows:--
(a) If the certificate of authority apparently issued by the Block Development Officer, Sandeela on 21.8.1978 is valid? If valid, has Divya Nand satisfied the conditions imposed therein?
(b) If Divya Nand had any right to construct buildings etc. on the Gram Sabha land? If he had any permission from a proper Government Authority to do so?
22. The SDO has referred to the directions issued by the Collector of the District to hold a detailed enquiry with regard to Gaon Sabha land. On the basis of such a direction, a comprehensive survey-cum enquiry was conducted by the Naib Tehsildar, Sandeela. Late Divya Nand had appeared and had filed an application dated 22.2.1991 seeking permission to construct a building for a College of Naturopathy, an LPG Godown, and residential houses etc. on Gram Sabha land situated in the fourteen plots in question measuring a total area of 207 Bighas on 11.3.1991 late Divyanand had appeared before the SDO and had also produced a copy of the Certificate of Authority apparently issued by the SDO, Sandeela on 21.8.1978, authorising him to plant trees over the plots in question subject to certain conditions. Late Divya Nand had himself requested the SDO to visit the spot to appreciate the facts better. The SDO also visited the plots in question and a survey-cum enquiry report was prepared by the Naib Tehsildar thereafter on 9.4.1991. It was found that late Divya Nand had constructed one Hospital and several rooms on Plot No. 135 which was being used to house students of the College of Naturopathy. Late Divya Nand had also been constructing two shopping Complexes on Plot No. 34 and such construction was completed. It was also found that late Divya Nand had also dig out land of approximately two Bighas for building an artificial pond and had also constructed residential rooms in the plots in question. Several parts of Plot Nos. 34 and 101 were also being used for agricultural purposes for cultivating wheat and rice etc. Only 2000 trees had been planted on the land and were found scattered on the plots in question. On the basis of said report, the loss caused to Gaon Sabha land was estimated at ` 9,60,000/-.
23. It was also found on enquiry into the order of the Consolidation Officer that there were only two plots of land, namely Plot Nos. 32 & 33, which had been bought by late Divya Nand from the erstwhile owners and they were situated on the rear side of the other plots and were quite identifiable and separate from plot No. 34, which was Gaon Sabha land.
24. After issuance of notice in Z.A. Form No. 49-A under section 122-B of the U.P.Z.A. & L.R. Act read with Rules 115-C and 115-D of the Rules, late Divya Nand deliberately failed to appear. The SDO therefore recorded on the basis of enquiry from the office of the Block Development Officer and from Gram Pradhan of Gram Sabha that no proceedings were ever undertaken for giving of Patta by the Land Management Committee to late Divyanand. The village Revenue records also did not show such grant of Patta, as the plots under consideration were entered in the name of Gram Sabha and classified as pasture land. At no point of time, the Block Development Officer was authorised to issue any Sanad for planting trees on such huge tract of land of more than 200 Bighas to a person who was a non-resident of the village concerned. There was no proper permission of any Prescribed Authority responsible to look after Gaon Sabha land.
25. It has further been noted that even the conditions imposed under the Sanad or the alleged Lease for instance condition No. 2, which said that in the event of failure to safeguard at-least 30% of the plants i.e. 30,000 plants, the certificate can be suo-motu cancelled. The condition No. 8 which said that the lessee had no right over the land and the land continued to be belonged to the Gaon Sabha and was not to be used for any other purpose except for raising trees, were not respected by late Divya Nand. He had planted only 2000 instead of 1 lac trees over more than 200 Bighas of land which could not be said to be an organised plantation as was envisaged under the alleged Sanad or Lease. Moreover, residential accommodation, a Hospital, a Tubewell, a Shopping Complex and a pond were being built by him besides cultivation of wheat and rice on land of Gaon Sabha.
26. With regard to the second point of determination, the SDO found that no proper material either on the file or in the Tehsil Sandeela existed to show that permission had ever been granted to late Divya Nand, who raised construction over Gram Sabha land. Even in the application submitted by late Divya Nand on 22.2.1991 and 11.3.1991, he had only sought permission to raise construction of a College of Naturopathy and LPG Godown. The SDO noted such an application for permission was only a ploy used by late Divya Nand to legalise his already raised construction over the land of the Gaon Sabha. The SDO therefore held late Divya Nand as responsible for raising unauthorised construction and causing damage to Gaon Sabha land and directed his eviction. The damages estimated as ` 9,60,000/- were directed to be recovered from late Divya Nand and in case of failure to do so, it was to be recovered as arrears of Land Revenue.
27. Having considered the order passed by the SDO, Sandeela in its totality, this Court finds the arguments raised by the learned Counsel for the petitioner that the Consolidation Officer had declared him, bhumidhar and that the order of the Consolidation Officer was not further challenged untenable. In the counter-affidavit filed on behalf of the State respondents in Writ Petition No. 654 M/S. of 1991, it has also been mentioned that against the ex-parte order passed by the Consolidation Officer, a recall application was moved by the erstwhile tenure holders. A Reference was filed thereafter under section 48(3) of the Consolidation of Holdings Act on 18.1.1990. Against the order passed by the Deputy Director of Consolidation in the Reference, the petitioner had filed Writ Petition No. 1200 (Consolidation) of 1991 which was dismissed by this Court on 16.4.2004.
28. The Deputy Director of Consolidation had recorded the statements of the Pradhan and the Up-Pradhan and the land was thereafter recorded as pasture land or "charagah".
29. I have also considered the arguments raised by the learned Counsel for the petitioner that despite an interim order being granted by this Court on 16.4.1991, the SDO proceeded with the matter and passed the order dated 15.4.1991 ex-parte.
30. Having carefully perused the pleadings on record of writ petition, I find that the petitioner in Writ Petition No. 629 (M/S.) of 1991 had clearly stated that after issuance of notice on 13.4.1991 in Z.A. Form No. 49-A, the petitioner had approached the office of the SDO, but by then he had already passed an order ex-parte. Deliberately the date of the order has not been mentioned in the pleadings in Writ Petition No. 629 M/S. of 1991, but it has been mentioned that an application for recall of order was moved, which was rejected.
31. When the writ petition No. 629(MS) of 1991 was presented in Court as fresh on 16.4.1991 an order was passed on the same day for maintaining status quo. Later on, Writ Petition No. 654 (M/S.) of 1991 was filed alleging contemptuous behavior on the part of the respondents in passing of the order dated 15.4.1991, which was already on record and for which an application for recall had already been moved by the petitioner, as mention of the same was made in Writ Petition No. 629 (M/S.) of 1991 in paragraphs 16, 17 and 18. Also, that when the petitioner returned home after filing his application for recall, "he found that a lot number of PAC persons have assembled at the site along with opposite party No. 1 and other Tehsil Officers-----" and that they had come to evict him from the land in dispute. All these facts were mentioned in Writ Petition No. 629 (M/S.) of 1991.
32. The writ petition No. 654 (MS) of 1991 filed later on, was filed only to set up a case of contemptuous behavior on the part of the State respondents and to garner the sympathy of the Court. Hence, this Court passed an interim order on 22.4.1991 directing that the order dated 15.4.1991 shall remain stayed and no interference shall be made by the opposite party in respect of the LPG Godown, Hospital and Vidhyalaya which were being run by the petitioner on the plots in dispute.
33. This Court is of the considered opinion that in so far as land of the Gaon Sabha is concerned, be it recorded as Parti or a Charagah, no bhumidhari rights can accrue to any person on the basis of any alleged Sanad or Lease or Patta. The land reserved for public utility, has to be used for the purpose of benefit of common Villagers as had been held by the Hon'ble Supreme Court in the case of Hinchlal Tiwari v. Kamala Devi, 2001 (92) RD 689 (SC) and thereafter in the case of Jagpal Singh v. State of Punjab, 2011 (113) RD 329 (SC). There can be no adverse possession claimed over the Gaon Sabha land or any land belonging to the State.
34. The writ petitions Nos. 629 (M/S.) of 1991 and 654 (M/S.) of 1991 are dismissed. The petitioner shall handover vacant and peaceful possession of the plots in question to the Gaon Sabha through the SDO concerned.
35. The respondents are free to proceed in terms of the order dated 5.4.1991 and recover the damages of ` 9,60,000/- along with interest at the rate of ` 6% per annum from the petitioner, from the date of the order dated 15.4.1991 upto the date of delivery of possession by the petitioner of the 207 Bighas of land unauthorisedly occupied by him.
No comments:
Post a Comment