Sudhanshu Dhulia, J.@mdashHeard learned counsel for the applicant on the Delay Condonation application.
2. This case was dismissed for non prosecution on 31.03.2014. Now, a belated application for recalling the order has been moved by the applicant/petitioner with a prayer to restore the matter to its original number. On the ground urged in the delay condonation application as well as in the interest of justice the delay condonation application is allowed.
3. Also heard on the restoration application. In the interest of justice, the order dated 31.03.2014 is hereby recalled and the writ petition is restored to its original number.
4. Heard Mr. C.K. Sharma, learned counsel for the petitioner, Mr. B.S. Negi, learned Deputy Advocate General for the State and Mr. Arvind Vashisth, learned Senior Advocate for respondent No. 4 and perused the record.
5. The present writ petition has been filed by the petitioner i.e. M/s. Rai Bahadur Narain Singh Sugar Mills Ltd. as it is aggrieved by orders passed by the Board of Revenue, Lucknow, upholding the validity of an order dated 21.08.1990 passed by the Assistant Collector (Sub-Divisional Magistrate of Sub-Division called Laksar, which is now in District Haridwar, Uttarakhand). The net result of the two orders i.e. 21.08.1990 and 25.05.2000 passed by the Sub-Divisional Officer/Magistrate and Board of Revenue, Lucknow respectively would be that the land recorded as Abadi land in the name of petitioner i.e. M/s. Rai Bahadur Narain Singh Sugar Mills Ltd., by order dated 10.08.1959 would now to be recorded as Banjar* in revenue records and reverted to its original status.
6. It so happens that on 10.08.1959, the Additional Sub-Divisional Magistrate, Laksar passed an order by which certain plots of land, which were admittedly at the relevant time entered in the revenue records as "Banjar" by "correction of entries" entered as "Abadi land" and thereafter it was said that this being an Abadi land where Rai Bahadur Narain Singh Sugar Mills Ltd. is in possession. The aforesaid provisions were exercised by the concerned revenue authority under Section 33 read with Section 39 of U.P. Land Revenue Act (hereinafter referred to as "Act"). Section 33 of the Act reads as under:--
"33. The annual registers.--(1) The Collector shall maintain the record-of-rights, and for that purpose shall annually, or at such longer intervals as the (State Government) may prescribe, cause to be prepared an amended (register mentioned in Section 32.)
The (register) so prepared shall be called the annual register.
(2) The Collector shall cause to be recorded in the annual register.
(a) all successions and transfers in accordance with the provisions of Section 35; or
(b) other changes that may take place in respect of any land; and shall also correct all errors and omissions in accordance with the provisions of Section 39:
Provided that the power to record a change under clause (b) shall not be construed to include the power to decide a dispute involving any question of title.)
(3) (No such change or transaction shall be recorded without the order of the Collector or as hereinafter provided, of the Tahsildar or (the Kanungo).)
(4) The Collector shall cause to be prepared and supplied to every person recorded as bhumidhar, whether with or without transferable rights, assami or Government Lessee a Kisan Bahi (Pass book) which shall contain-
Government lessee a Kisan Bahi (Pass book) which shall contain:--
(a) such extract from the annual register prepared under sub-section (1) relating to all holdings of which he is so recorded (either solely or jointly with others);
(b) details of grants sanctioned to him; and
(c) such other particulars as may be prescribed:
Provided that in case of joint holdings it shall be sufficient for the purpose of this sub-section of Kisan Bahi (Pass book) is supplied to such one or more of the recorded co-sharers as may be prescribed.
(4-A) The Kisan Bahi (Pass book) referred to in subsection (4) shall be prepared in such manner and on payment of such fee, which shall be realizable as arrears of land revenue, as may be prescribed.
(5) Every such person shall be entitled, without payment of any extra fee, to get any amendment made in the annual register under sub-section (2) incorporated in his Kisan bahi (Pass book.)
(6) The State Government may make rules to carry out the purposes of this section, including, in particular, rules, prescribing the mode of reception in evidence, and of proof in judicial proceedings, of entries in the (Kisan Bahi (Pass Book), and the mode of its revision and authentication up-to-date and for issue of duplicate copies thereof, and the fees, if any, to be charged for any of the said purposes.
(7) In this section, ''prescribed'' means prescribed by rules made by the State Government.
(8) Nothing in sub-sections (4) to (7) shall apply in relation to any area which is either under consolidation operations or under record operations.)"
7. Section 39 of the Act, which further has relevance for our purposes, reads as under:--
"(39. Correction of mistakes in the annual register.--(1) An application for correction of any error or omission in the annual register shall be made to the Tahsildar.
(2) On receiving an application under sub-section (1) or any error or omission in the annual register coming to his knowledge otherwise, the Tahsildar shall make such inquiry as appears necessary and then refer the case to the Collector, who shall dispose it of, after deciding the dispute in accordance with the provisions of Section 40.
(Provided that nothing in this sub-section shall be construed to empower the Collector to decide a dispute involving any question of title.)
(3) The provisions of sub-sections (1) and (2) shall prevail, notwithstanding anything contained in the U.P. Panchayat Raj Act, 1947."
8. In other words we are just spelt out above two provisions of law Section 33 of the Act by which annual register of land record are to be maintained and as to how that is to be maintained, (b) thereafter the provision (Section 39 of the Act) by which correction of mistakes only of these annual registers can be changed and by whom.
9. What goes to the root of the matter in the present dispute is unquestionably the order dated 10.08.1959 passed by Additional Sub-Division Magistrate, Laksar of the then Saharanpur District (which is now in District Haridwar, Uttarakhand) by which this correction of mistakes in revenue record was made and which has given rise to this long and protracted litigations. What is interesting, however, is the fact that the order dated 10.08.1959 by which certain rights have accrued to the petitioner i.e. M/s. Rai Bahadur Narain Singh Sugar Mills Ltd., is nowhere on record.
10. The counsel for the petitioner Mr. C.K. Sharma has given a categorical statement and so is it reflected from the records as well that this order (dated 10.08.1959) ostensibly passed by the Additional Sub-Divisional Magistrate was never placed before any court, though on its basis corrections in the revenue records, were made in the year 1968. Curiously, the order dated 10.08.1959 is nowhere to be seen. This Court presumes, however, for the sake of argument, that even if such an order was passed its legality and its validity has to be examined, as we have noticed subsequent that to the order dated 10.08.1959 certain corrections were made in the revenue records benefiting the petitioner. Ultimately all this was brought to the notice of the Sub-Divisional Magistrate, Roorkee by way of certain reports of the revenue authorities, which were subordinate to him and the Sub-Divisional Magistrate thereafter in exercise of its power under Section 33 read with Section 39 of the Act, which has already been referred above, passed a well considered order on 21.08.1990, which is also annexed as annexure No. 2 to the writ petition.
11. In short a gross illegality which had given unaccounted benefit to the petitioner was sought to be corrected vide order dated 21.08.1990, therefore, this order is of extreme relevance and shall be quoted in some detail by this Court. The first paragraph of the order dated 21.08.1990, which is in English, reads as under:--
"I have gone through the report of Lekhpal dated 07.08.90, L.R.I. dated 09/8/90 and of Naib Tehsildar Laksar dated 09.08.90. All these three reports are detailed reports as perused and compared with the Misal Bandobasat 1325 Fasli (Settlement Volume year 1325 Fasli) and the position of the spot. By perusal of these reports it looks as a complicated and serious matter involving valuable property of the Town area/Gaon Samaj, so it needs to discussed in detail."
12. Thereafter the concerned authority (i.e. Sub Divisional Magistrate, Laksar) states that he has gone through the reports, which shows that vide order dated 10.08.1959 certain corrections of revenue records under Section 33/39 of the Act were made and Banjar land was declared as Abadi land of Rai Bahadur Narain Singh Sugar Mills Ltd. Following are the Khasra Nos. which were declared as Abadi land of Rai Bahadur Narain Singh Sugar Mills Ltd.:--
"(i) 124 (2-15-0), (ii) 145 (1-19-4), (iii) 146 (0-18-0), (iv) 147 (1-8-0), (v) 148 (1-13-0), (vi) 149 (1-16-0), (vii) 150 (1-17-0), (viii) 164 (1-8-0), (ix) 165 (2-6-0), (x) 168 (0-9-12), (xi) 169 (1-4-0), (xii) 173 (8-14-0),"
13. Thereafter the concerned revenue authority goes on to observe that such entries were made changing the nature of the land from Banjar to Abadi land for the purpose to provide benefit to a particular sugar mill. It was done during Zamidari Abolition Settlement which could not have been done as such a change could only have been made by courts in a declaratory suit or by the concerned revenue authority under Section 143 of the Uttar Pradesh Zamidari Abolition and Land Reforms Act (hereinafter referred to as "UPZA&LR"), which gives the power to revenue authority to change the nature of the land. Section 143 of the UPZA&LR Act reads as under:--
"143. Use of holding for industrial or residential purposes - (1) Where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in charge of the subdivision may, suo moto or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.
(I-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector in charge of the sub- divisions may in the manner prescribed demarcate such part for the purposes of such declaration.
(2) Upon the grant of the declaration mentioned in sub-s.(1) the provisions of this Chapter (other than this section) shall cease to apply to the bhumidhar with transferable rights with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.
(3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provision of this Chapter (other than this section) shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject."
14. Admittedly such powers have been exercised under Sections 33/39 of the Act which only given powers to the revenue authority to correct only clerical mistakes. Therefore, the order dated 10.08.1959 is an order wholly without jurisdiction and as the concerned revenue authority observed "it is astonishing to note that the Gaon Samaj/Government has been defrauded so seriously."
15. Another aspect with the concerned revenue authority notices that even under Section 143 of UPZA&LR Act, the nature of the land can be changed by an Assistant Collector 1st Class, who is in-charge of sub-division, and the land so converted must be a land belonging to a Bhumidhar with transferable right. Both these conditions are missing in the present case, as the land itself does not belong to Bhumidhar with transferable right nor with the Officer concerned is an Assistant Collector 1st Class Officer.
16. It has also been observed in the order dated 21.08.1990 that the revenue record do not show that the concerned sugar mill had any Zamadari or Bhumidhari right over the concerned property and was ever declared as a tenant of the said property. In fact "the name of the sugar mill never existed in revenue records on the disputed land before or after the Zamidari Abolition except as recorded after the disputed order dated 10.08.1959."
17. As far as veracity of the order dated 10.08.1959 is concerned, this Court has already observed that this order is nowhere on record. The concerned revenue authority also expressed its shock while observing that "the search in revenue record room of the old district-Saharanpur shows that the said file number 70/141 order dated 10.08.1959 of ASDO was never consigned or deposited in the record room."
18. Thereafter the concerned court passed following operative portion:--
"Thus on the following grounds, the order of A.S.D.O. roorkee, it ever existed, is liable to be removed from the revenue records as fictitious, illegal, without jurisdiction with extra legal considerations and with ulterior motives:--
1) Settlement entries (Zamindari Abolition) entries cannot be changed U/s 33/39 of L.R. Act and are final as far as Section 33/39 of L.R. Act 1901 is concerned.
2) No declaratory suit has been filed to change the Zamindari abolition entries.
3) Under Section 33/39 of Land Revenue Act 1901 under correction of papers, only clerical mistakes that too recent entries can be corrected nor the old and serious settlement entries which change the title and the owners.
4) Abadi is declared U/s 143 of U.P.Z.A. & L.R. Act, 1951 by Assistant Collector 1st Class I/c of SubDivision only and not by any other officer of any rank.
5) Abadi of a bhumidhar with transferable rights only can be declared U/s 143 of U.P.Z.A. & L.R. Act, 1951 only not under correction of paper U/s 33/39 of U.P. Land Revenue Act, 1901, on Gram Samaj Land.
6) Rai Bahadur Narayan Singh Sugar Mills Company Limited Laksar never remained as Zamindar, tenant or Bhumidhar with transferable rights of disputed plots in revenue records, so have no authority legal or otherwise to get their name entered in the revenue records by defrauding gaon Samaj worth lacs of rupees.
7) No abadi of any specific person can be recorded on Gaon Samaj Land.
8) The disputed land recorded as abadi was not abadi at the time of order dated 10.08.1959 not even today and is lying vacant and Banjar even today.
9) Land Management Committee never passed any resolution allotting the land in the name of the mill nor it has any authority to do so.
Thus the order of ASDO Roorkee dated 10.08.1959, if it really existed, which is referred in the available records, liable to be expunged from the revenue records are without jurisdiction, with extra legal considerations and with ulterior motives. The status quo anti as it existed before the order dated 10.08.1959 for maintaining and the revenue records be maintained. Parwana amaldaramad be issued accordingly."
19. Between 21.08.1990, when the aforesaid order was passed by the Sub-Divisional Magistrate, Laksar and order dated 22.05.2000, when the order was ultimately affirmed by the Board of Revenue, Lucknow U.P., there is a series of orders passed by the Commissioner, Board of Revenue etc. which need to be referred. These are as under:--
20. The order dated 21.08.1990 was challenged by the petitioner in revision before the Additional Commissioner, Meerut Division, which was allowed vide order dated 04.12.1991, however, this order was to be confirmed by the concerned Board of Revenue as it was recommendatory in nature and it was recommended to the Board of Revenue. The Revenue Board in turn remanded the matter back to the Additional Commissioner to re-appreciate the aspect on three issues. These three issues are as follows:--
"1. Whether the order of the Additional Sub-Divisional Magistrate dated 10.08.1959 was forged and fabricated and if at all whether it was a correct order?
2. Whether the disputed land was acquired by the revisionist prior to the enforcement of UPAZ&LR Act?
3. Whether the disputed land or part of the disputed land has vested with the Gaon Samaj or with the State after enforcement of UPAZ&LR Act?"
21. The above order was passed by the Board of Revenue on 26.09.1995. The Additional Commissioner vide order dated 03.12.1998 decided all these three issues in favour of the petitioner and sent the same for orders. The matter was then reconsidered by the Board of Revenue. The order dated 22.05.2000 is a detailed order of the Board of Revenue wherein it has considered the entire history of the matter and the Board of Revenue has come to the conclusion that at the root of the entire controversy lies in the order dated 10.08.1959. The order is not only without jurisdiction as the power even to correct entries under Sections 33/39 of Act lies with the Assistant Collector, who is in-charge of a Division and not with the Additional Sub-Divisional Magistrate but the conclusions drawn by the Board of Revenue were also that in the concerned village i.e. Khera proceeding under U.P. Consolidation of Holdings Act, 1953 (in short "Holdings Act") which are for consolidation of scattered holding had already been on and were notified prior to 10.08.1959, and therefore, under Section 5(2) of the Holdings Act i.e. after such a notification all the powers to correct entries etc. lay with the Consolidation authorities and not with the usual revenue authorities. Section 5(2) of the Holdings Act, reads as under:--
"5. Effect of notification under Section 4(2)-
(1) .....
(2) Upon the said publication of the notification under sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely-
(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending, stand abated:"
22. Moreover, reference has been given under Section 227 and 228 of UPZA&LR Act where powers of revenue authorities, particularly, Assistant Collector to pass order inter alia under Sections 33/39 of Act have been given. Section 227 and 228 of UP Land Revenue Act 1901 read as under:--
"227. Powers of an Assistant Collector in charge of sub-division- An Assistant Collector in charge of a subdivision of a district shall, as such have the following powers:
(1) to exercise all or any of the powers of an Assistant Collector of the Second Class or a Tahsildar;)
(2) to call on owners to erect or repair boundary marks, and in default, to erect or repair and charge the cost to (tenure-holders or Gaon Sabhas) under Section 29;
(3) to fine for injuries to boundary to survey marks, arid in certain cases apportion the charges of repairing boundary or survey marks under Section 30;
(4) to order alterations in the annual registers, under Section 33;
(5) (5)(a) to enquire into and decide applications made under Section 39.)
(6)
(7) to levy fees for mutation under Sections 37, and fines, under Section 38;
(8) to decide disputes and to pass orders, under (Sections 40,41 and 43),
(9) to (17)
(10) to exercise any other jurisdiction or authority which by this Act is expressly conferred on Assistant Collectors.
228. Powers of an Assistant Collector of first class not in charge of a sub-division.--An Assistant Collector of the first class not in charge of a sub-division of a district shall exercise all or any of the powers conferred on an Assistant Collector of the first class in charge of a sub-division in such cases or class of cases as the Collector may, from time to time, refer to him for disposal."
The above provisions show that these powers lie the Assistant Collector and not with the Additional Sub-Divisional Magistrate as it have been done in the present case. Moreover, in the garb of correcting mistakes in revenue entries, the order dated 21.08.1990 has been passed by an authority, who was not even authorized to pass such an order, and who has been done in order to grant undue favour and benefit to the petitioner i.e. M/s. Rai Bahadur Narain Singh Sugar Mills Ltd.
23. The order dated 10.08.1959 is a wholly illegal order, also passed without jurisdiction. The net result now would be that after order dated 22.05.2000, the validity of the order dated 21.08.1990 be upheld in the revenue record as it stood prior to 10.08.1959 would come into existence, therefore, from the revenue records the name of Rai Bahadur Narain Singh Sugar Mills Ltd. has to be deleted and it placed the land has to be shown as Banjar land, as it existed prior to 10.08.1959. Let this be done and correction be made in the revenue record forthwith.
24. There is, however, another aspect of the matter, which must be considered at this stage. During this protracted litigation, the present petitioner had filed a suit for injunction in which State Government as well as the concerned town area committee was made a party. The said suit was decreed and against that order the State Government filed first appeal before this Court (being FA No. 15 of 2002 and FA No. 09 of 2003) which has been dismissed. This Court has been informed that erstwhile town area committee, Laksar has gone to the Hon''ble Apex Court and the matter is pending before it.
25. Learned counsel for the petitioner would therefore argue that any observation of this Court in favour either the town area committee or the State will run contrary to the observation made by the Division Bench in FA No. 15 of 2002 along with connected FA No. 09 of 2003 (decided on 15.05.2007.
26. This argument of the learned counsel for the petitioner is totally misconceived, inasmuch as, this aspect has been taken care of by the Division Bench itself in its order dated 15.05.2007 while dismissing the appeals of the State. Learned counsel for the petitioner has already been argued that although the suit was for injunction but there was certain declaratory aspect as well and the trial court also held that the land belongs to the petitioner. This aspect is well taken care of by the Division Bench where it has held in paragraph 21 of the said judgment, which reads as under:--
"21. We find no substance in the argument advanced by the learned counsel for the appellant, firstly on the ground that the disputed land is an Abadi land and it is not being used as the agricultural land and secondly the plaintiff has not sought relief of declaration, rather it has sought the relief of permanent injunction not to interfere in its peaceful possession over the disputed land. We find that the trial courts were well within their jurisdiction to decide the above issues in favour of the plaintiff/Mill."
27. In other words the Division Bench was conscious of the fact that what was before it. It was not a declaratory suit nor was it declared any right to the plaintiff or the defendant on the property. This was so, as the court was conscious of the fact that there was a bar declaratory suit for the said land could not have been filed before the civil court as there was power bar existing under Section 331 of UPZA&LR Act. Section 331 of UPZA&LR Act reads as under:--
"(331 Cognizance of suits, etc. under this Act.--(1) Except as provided by or under this Act, no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof (or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application:)
(Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII, shall not apply to such holding or part thereof.)
(Explanation.--If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.)
((1-A) Notwithstanding anything in sub-section (i), an objection that a court mentioned in column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or, proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.)
(2) Except as hereinafter provided no appeal shall lie from an order (or decree) passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid.
((3) An appeal shall life from any decree or from an order passed under section 47 or an order of the nature mentioned in section 104 of the Code of Civil Procedure, 1908 or in order 43, Rule 1 of the First Schedule of that Code, passed by a court mentioned in column 4 of Schedule II to this Act in proceedings mentioned in column 3 thereof to the court or authority mentioned in column 5 thereof.)
(4) A second appeal shall lie on any of the grounds specified in section 100 of the Code of Civil Procedure, 1908 from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid.)"
28. Section 331 of UPZA&LR Act read with Second Schedule of UPZA&LR Act clearly states that suit for declaration regarding agricultural land can only be filed before the revenue court. It is also admitted that the present suit was not a declaration nor could it be filed before the civil court as only the revenue authority has jurisdiction over the matter. Moreover, this aspect is already under consideration before the Hon''ble Apex Court. Therefore, nothing needs to be said on this aspect. This Court is only on the validity of the order dated 10.08.1959 and the second order dated 21.08.1990 by which the earlier order dated 10.08.1959 was set aside. This Court has absolutely no hesitation in its mind that the order dated 21.08.1990 valid and proper as well as in accordance with law. The order dated 10.08.1959 which was passed surreptitiously and it was extremely doubtful order which could not have been passed in any case. This order has given undue benefit to the present petitioner.
29. Since the matter is under consideration before the Hon''ble Apex Court, this Court refrains from saying anything on this aspect. The writ petition, however, is hereby dismissed. All legitimate consequences shall follow.
30. It must be observed that after dismissal of the writ petition, the consequential orders which this Court would have passed a direction to the State authorities filing possession of the land immediately but this is not being done, as the matter is under consideration before the Hon''ble Apex Court and since in the Division Bench order dated 15.05.2007 passed in FA No. 15 of 2002 by this Court, there are certain directions, which are be in favour of the petitioner. Therefore, this Court refrains from passing such an order.
*(in revenue meaning of "Banjar" is "waste/barren land")
