Amitava Lala, A.C.J.
1. By means of the present writ petition the petitioner has sought for the following reliefs:
(a) to issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 9.8.2001 passed by the Nagar Ayukt/Mukhya Nagar Adhikari, Nagar Nigam, Allahabad (filed as Annexure-4 to this petition); 23.9.2009 passed by the District Magistrate, Allahabad (filed as Annexure-1 to this petition) and orders dated 26.10.2002 and 12.1.2009 passed by the Secretaries, Revenue Department and Urban & Housing Planning Department, Government of U.P., Lucknow (Respondent Nos. 1 and 4) (filed as Annexures-2 and 3 to this petition);
(b) to issue a writ order or direction in the nature of mandamus restraining the Respondents from challenging the title, and right of the Petitioner over the property in question and also restraint the Respondents from taking any steps for disturbing the peaceful possession and ownership of the petitioner over the property in question (i.e. land situated at 5, 7, 9, 11, 13, 15 and 17 Master Zahurul Hasan Road, Madhokunj, Allahabad recorded as occupancy tenancy for dwelling in Nazul Records and also in revenue records in Arazi No. 351/1 under entry 6-kaa);
(c) to issue any other writ, order or direction which this Hon''ble Court may deem fit and proper and in the circumstances of the case;
(d) to award costs of the Petition to the Petitioner.
The dispute involved in the present writ petition centers around the question as to whether the property bearing Khasra No. 353/1, situated at Master Zahurul Hasan Road, Katra (old name Beli Uparhar), Allahabad (in short called as the "land in question") is a Nazul land or Government Estate land.
2. In order to understand and decide the dispute we have to have at first the factual aspects of the case as submitted by the respective parties before this Court.
3. The brief facts giving rise to the present writ petition, according to the petitioner, are that the petitioner claims himself to be owner and in possession of the land in question. According to the petitioner, the land in question came in possession of his great grandfather, namely, Late Manohar Das consequent to sale held in execution of a Court decree dated 30th April, 1862 passed in Suit No. 135 of 1862 for realisation of debt and since then the same has been recorded as "occupancy tenant" in the records. After completion of consolidation proceedings sometime in the year 1877, the names of the ancestors of the petitioner were shown in the revenue records against land in question and the order passed by the then Collector on 9th July, 1877 clarifies that ''lagaan'' was wrongly being assessed on the land in question. As per the petitioner, this fact leaves no room for doubt that the land in question was not a Government Estate land. Thereafter name of the predecessors of the petitioner as well as the petitioner has been continuously shown in the records as "occupancy tenant" and they were being treated as "lessee/occupancy tenant" with dwelling rights. However, since there was no written lease in respect of the land in question, the terms were obscure. Subsequently, by virtue of the Government Order No. 3518-XI-28E dated 24th October, 1910 the land in question was recorded in the Register of Government Property (Nazul), Allahabad as "Nazul Property", occupancy tenant for dwelling house. In order to substantiate this fact, the petitioner has filed photocopy of relevant portion of Register of Government Property (Nazul) issued by the Nagar Nigam, Allahabad, as Annexure-6 to the writ petition.
4. According to the petitioner, in between the years 1926-30 a dispute arose regarding the right of the predecessors of the petitioner while seeking construction of new building on the land in question as at that time the Collector, Allahabad was of the opinion that no construction could be allowed without his permission when the Municipal Board differed with the opinion of the Collector on the ground that since terms of the grant/lease were obscure and the petitioner was in possession of the land in question for over 60 years, no permission was required. In such situation, the Collector, Allahabad made a reference to the State Government. The State Government issued Government Order No. 2263/XI-763-E dated 4th August, 1930 inter alia stating that the land in question is a Nazul land and is held by one Lala Man Mohan Dass (the predecessor of the petitioner) without any written grant/lease. Since the terms of the original grant of the land are obscure, it may be presumed that Lala Man Mohan Dass is a perpetual tenant of the land for building purposes. As there is no restriction to his tenancy, he is entitled to build again without the consent of the lessor. The Government cannot therefore compel him to execute the usual lease of nazul land for building purposes with the usual conditions attached to such leases. It is submitted on behalf of the petitioner that this Government Order dated 4th August, 1930 contains Government decision on all aspects and is still operative. Subsequent thereto, the predecessors of the petitioner were allowed to construct seven new houses on the land in question within the knowledge of the then Collector, Allahabad.
5. As stated by the petitioner, thereafter since 1930 upto the year 2000 there was absolutely no dispute with regard to the rights and nature of the land in question. However, since the houses, so constructed on the land in question, were in dilapidated condition, the petitioner wanted to rebuild the same and as such, he submitted map before the Allahabad Development Authority, Allahabad for sanction of new fresh building plans, which was granted by the Allahabad Development Authority. According to the petitioner, such sanction was obtained only after a letter dated 26th September, 2000 was issued by the Nazul Superintendent, Nagar Nigam, Allahabad in respect of the land in question. However, all of a sudden without giving any notice or opportunity of hearing, Mukhya Nagar Adhikari, Nagar Nigam, Allahabad, the respondent No. 3 herein, passed an ex parte order dated 09th August, 2001 cancelling the aforesaid letter (No Objection Letter) dated 26th September, 2000 issued in favour of the petitioner by the Nazul Superintendent, Nagar Nigam, Allahabad, on the ground that the Government Order dated 31st December, 1982 supplied by the petitioner does not contain signature and further in the Khatauni also the land in question appears to be Government Estate land. As stated by the petitioner, it is in the year 2001, i.e. after a period of 70 years, that the District Magistrate, Allahabad again raised a dispute with regard to the right of the petitioner to rebuild the constructions on the land in question without his permission. However, again on 22nd October, 2001 a Government order bearing No. 2683/9-AA-4-2001-295-N/2001 was issued by the State Government clarifying that there was no requirement to seek permission from the District Magistrate to reconstruct the property on the land in question. In view of the aforesaid Government Order, which was issued specifically in respect of the land in question, the order dated 9th August, 2001 passed by the Mukhya Nagar Adhikari, Nagar Nigam, Allahabad became redundant and as such, the same was not challenged by the petitioner at that stage but now on account of the impugned order dated 23rd September, 2009 such order dated 9th August, 2001 stands revived, hence the petitioner is challenging the same.
6. Apart from that, the petitioner has also brought to the notice of the Court several facts to the effect that a question with regard to the status of the land in question was raised in the floor of the Legislative Assembly of the State and detailed enquiry regarding the manner of illegal occupation of the Government property by the petitioner and his brother Sri Girish Tandon was demanded. But, on the basis of the report given by the In-charge District Magistrate, Allahabad to the Commissioner, Allahabad vide letter dated 21st May, 2001, the question was answered explaining the status of the petitioner and the allegations so raised were negated by declaring that there was no corruption or manipulation in the Government records. Besides this, being aggrieved by the arbitrary exercise of power and harassment by the district authorities, the petitioner had also approached the office of the Lok Ayukta, Lucknow with complaint No. 3447/2001/17 dated 26th September, 2001, on which Secretary to Lok Ayuka wrote to the District Magistrate, Allahabad to remove all the restrictions imposed upon the petitioner and to act in accordance with law. The petitioner further submitted that in respect of his land in question specific Government orders were issued in the years 1930 and 2001, whereby the Government clearly stated that the petitioner''s right was unrestricted and his rights had been recognized by the Government and its agents for more than 70 years again.
7. However, since certain other interested persons, whose properties/lands were entered in both Nazul as well as revenue records, were facing problems, the State Government in order to remove the defect had issued Government Orders dated 31st December, 1982 and 27th October, 2001 clarifying their status. It appears that the Government Order dated 27th October, 2001 was causing huge revenue loss to the Government, therefore, vide Government Order dated 19th October, 2002 the Government Order dated 27th October, 2001 was cancelled and further in respect of the Government Orders dated 31st October, 1982 and 22nd October, 2001 regarding occupancy tenancy the opinion of the Law Department was sought for. It is in the aforesaid circumstances, which is stated by the petitioner to have nothing to do with him, that the Government Order No. 2329/9-Aa-4-2002-293N/2001 dated 26th October, 2002 was issued by the Secretary, Housing Department, Government of U.P., Lucknow, respondent No. 4 herein, whereby the specific Government Orders dated 31st December, 1982 and 22nd October, 2001 regarding occupancy tenancy in favour of the petitioner alone were cancelled. According to the petitioner, his case was wrongly clubbed with the case of the other persons, who have vested interest. The petitioner has given several instances to establish that certain other properties, which were having similar nature as that of the petitioner, have been treated to be Nazul properties by the respondents and further they have been converted into freehold. However, immediately after about seven days of the issuance of the aforesaid Government Order dated 26th October, 2002, the State Government issued another Government Order dated 02nd November, 2002, bearing No. 2532/9-Aa-4-2002-295N/2001, thereby staying enforcement of the Government Order dated 26th October, 2002 till further orders. Thereafter, the State Government referred the matter to the Advocate General for his opinion with regard to the right and status of the petitioner over the land in question alone. The then Advocate General by his opinion dated 3rd February, 2003 clearly opined that the Government Order dated 26th October, 2002, which was stayed by the Government on 2nd November, 2002, deserves to be recalled/cancelled being wholly unsustainable in the eye of law. However, such opinion was not acted upon and with the change of the Government in the State, again opinion was sought for from the Advocate General. The then Advocate General in his opinion dated 29th May, 2005 ultimately clearly opined that the Government Orders dated 4th August, 1930, 31st December, 1982 and 22nd October, 2001 do not call for any interference by cancellation or otherwise. The opinions of both the then Advocate Generals have been annexed as Annexures 16 and 17 respectively to the writ petition, from which we find that such opinions are based on exhaustive discussion of facts and law. However, the State Government issued another Government Order dated 12th January, 2009, bearing No. 2437/Eight-4-08-200N(W)/99 TC, thereby cancelling the Government Order dated 2nd November, 2002.
8. It is stated on behalf of the petitioner that despite the question of title and status of the petitioner over the land in question having finally settled by the Government Orders of 1930 and 2001, it appears that certain vested interested persons kept on giving wrong information to the District Magistrate, upon which several newspaper reports were made. Therefore, the petitioner having reliably learnt and apprehended that District Magistrate, Allahabad was desirous of settling the controversy with regard to double entry in the Nazul/revenue records and further he may take decision without any notice to the petitioner, vide his letter dated 9th September, 2009 wrote to the District Magistrate, Allahabad that he is in possession of the Government Orders, legal opinions of two Advocate Generals and case laws in his favour classifying the subject land as "Nazul with unwritten lease", therefore, a notice or opportunity be given to him to present his case and no ex parte order be passed against his interest. However, it appears that even after receipt of such letter of the petitioner, the District Magistrate, Allahabad without giving any notice or opportunity of hearing to the petitioner has passed the impugned order dated 23rd September, 2009, thereby directing the land in question to continue to have been recorded in the records of the Government Estate land and further cancelling the entries of the land in question made in the Nazul records.
9. Against this background, the petitioner has filed the present writ petition on the grounds that the impugned order dated 23rd September, 2009 passed by the District Magistrate seriously prejudices his rights and status over the land in question which continued uninterruptedly for a period of 100 years, and the same has been directed to be dislodged/disrupted. The District Magistrate has proceeded on the premise that since there is no written lease in respect of the land in question, in absence of any written lease the land in question cannot be treated and termed as "Nazul land". In paragraph-5 of the impugned order dated 23rd September, 2009 the District Magistrate has admitted that the land in question is entered as Nazul land in the Nazul Register, in which the ownership of the land remains with the Government and in case of the Government Estate land, ownership also remains with the Government. However, in respect of Nazul land there has to be a written lease and since there is no written lease in respect of the land in question, the land in question cannot be considered to be Nazul land and will fall within the category of land owned by the Government i.e. Government Estate land, over which the Government has absolute right. Such conclusion of the District Magistrate is contrary to the records of the respondents. By referring the Government Order dated 27th October, 2002 (probably 27th September, 2002) in paragraph-3 of the impugned order, the District Magistrate has construed that the Government has issued directions to rectify the mistake with regard to the entries after examining each case on merit as to whether entries made are genuine or not. However, in the case of the petitioner the Government Order dated 27th September, 2002 has not been correctly applied, inasmuch as in the impugned order the District Magistrate is absolutely silent as to why unauthorized possession is continuing in view of continuance of petitioner''s name in the Nazul records since past nearly 100 years. In the impugned order there is absolutely no discussion as to how the entries, which have continued for such a long period of time, are not genuine and can be canceled by him without holding that the same are fictitiously obtained by misrepresentation or fraud by the petitioner. The land in question has already been entered in the Government record for over 150 years and in "Nazul Register" since 1910 giving description as "Nazul land" for dwelling and notified as occupancy tenancy. Possession of the petitioner is also continuing since last about 150 years and when the petitioner came in possession, the provisions of Nazul land did not exist. In the year 1910 the respondents themselves by their own decision decided to record the land in question as Nazul land following the category of Nazul land. Moreso, after the specific Government Order of 4th August, 1930 the respondents are estopped from raising any objection with regard to the status of the petitioner over the land in question. Findings recorded by the District Magistrate are perverse and contrary to the evidence on record and the Government orders issued time to time. Entire exercise undertaken by the District Magistrate is totally without jurisdiction and is nothing but a colourable exercise of power, whereby the petitioner''s fundamental right of holding and enjoying his property is being seriously infringed. Further, no order can be passed by the respondents changing the right and title of the petitioner after a period of more than 100 years and it is barred under the law of limitation. The District Magistrate has ignored the specific Government order issued in respect of the land in question of the petitioner in the year 1930. The Government Orders dated 4th August, 1930, 31st December, 1982 and 22nd October, 2001 hold clearly that the owner (petitioner) has unrestricted rights over the land in question, which is Nazul land and entered as occupancy tenant. This right included right of alienation as grant does not prohibit alienation. The State Government by the Government Order dated 26th October, 2002 has only cancelled the Government Order dated 31st December, 1982 and 22nd October, 2001 and not the Government Order dated 4th August, 1930. Thus, the basic Government Order is still alive and binding. The discrepancies in the measurement of the land in question, as has been referred to cover up the mistakes, are wholly irrelevant and of no use. Apart from the land in question of the petitioner, all other lands, which have been mentioned in the impugned order, are sold out and extensive colonies have been built up thereon. No objection was invited prior to issuance of the impugned order dated 23rd September, 2009, therefore, inviting of objection within fifteen days from the date of impugned order dated 23rd September, 2009 will be of no avail, otherwise the District Magistrate could have invited the objections before passing the impugned order.
10. A counter-affidavit has been filed on behalf of the respondent Nos. 5, 6 and 7 i.e. District Magistrate, Allahabad, Additional District Magistrate (Nazul), Allahabad and Tehsildar, Sadar, Allahabad by the pen of Sri Daya Shanker Pandey, Sub-Divisional Magistrate/Officer Incharge Government Estate, Allahabad. It is stated in the counter-affidavit that the land in question was a Government Estate and was recorded as such in the revenue record showing "Sarkar Daulat Madar" as its owner Khewatdar in the settlement record of 1282 Fasli, which corresponds to the year 1875. In the column meant for the occupant, name of one Mr. Advine Collis, an English man, was recorded as Maurosi (hereditary tenant) and his tenancy was shown in the said record. Another settlement of District Allahabad was held in 1320 Fasali i.e. year 1913, wherein the land in question continued to be recorded in the ownership of "Sarkar Daulat Madar Mundarje Khata Khewat No. 1" and the names of the occupants were changed and it appears that Lala Ram Charan Das and Lala Madho Prasad were recorded as its occupants in the occupant column. Copies of the settlement records of 1282 Fasli and 1320 Fasli have been filed with the counter-affidavit as Annexures CA-1 and CA-2 respectively. It has been further stated that the land in question was Government estate and was not transferred either to the Nazul Department or to the Municipal Board for its management and the same continued to be recorded in the record of the Government Estate. It appears that bungalow was constructed over the land in question and the Municipality recorded the land for its own purpose (collection of taxes etc.) in its record treating it to be a property of the State/Nazul Department and since then the land was recorded in both the records, namely, Government Estate and also Nazul Register. On account of the commitment given in the Vidhan Sabha/Assurance Committee, during a meeting of the Assurance Committee dated 17th July, 2009 for completion of assurance, the State Government has directed the concerned authorities/Collector to decide double entry as soon as possible. The Government, when came to know the double entries concerning of a land of the Government Estate being maintained by the authorities, issued Government Order Nos. 2536(sic)-6-2002-Ra-6 dated 27th September, 2002 and 2394/9A-4-2002-295-N/2001 dated 19th October, 2002 directing for correction of the record on verification of certain facts. The District Magistrate, Allahabad by impugned order dated 23rd September, 2009 on consideration of the entire facts decided the matter of double entries and held the same to be a Government Estate and directed the double entries in the Nazul record to be expunged and cancelled the same.
11. It is further stated on behalf of the respondents that similar orders were also passed by the District Magistrate, Allahabad in the matter of one Rana Narraj Jang Bahadur, who filed a writ petition, being Civil Misc. Writ Petition No. 63169 of 2009, which is pending before this Court. Challenging the similar order passed by the District Magistrate, Allahabad in respect of the land of one Jai Kishan Singh another writ petition, being Civil Misc. Writ Petition No. 471 of 2005 (Jai Kishan Singh v. State of U.P. and others), was filed which was disposed of by a Division Bench of this Court on 12th January, 2005. Against the order dated 12th January, 2005 and also order dated 13th April, 2006 passed in Civil Misc. Writ Petition No. 20209 of 2006, a SLP No. 26488 of 2008 has been filed before the Supreme Court by the recorded occupants which is still pending. Besides this, Public Interest Litigation No. 32965 of 2006 has also been filed by one Sri Anugrah Narain Singh seeking certain directions in respect of Government Estate land which is also pending before this Court. It has also been submitted that the Division Bench of this Court has upheld the order correcting the entries concerning the Government Estate in the aforementioned case, therefore, the present writ petition may be disposed of following the order passed in the writ petition filed by Sri Jai Kishan Singh or the outcome of the SLP be awaited.
12. In rebuttal to the averments made in the writ petition, it has been stated by the answering respondents that it is wrong to say that the petitioner is owner of the land in question. The petitioner is only an occupant of the land in question. Previous settlement of District Allahabad was held in 1282 Fasli and Mr. Advine Collis was found to be recorded as Maurosi Kastkar (hereditary tenant) in the settlement record. Had there been any decree of 30th April, 1862, the name of the petitioner''s predecessor would have come in the settlement record of 1282 Fasli, corresponding to the year 1875. No consolidation operation took place in the year 1877. The Consolidation Act came to be in force in the year 1953 for the first time in the State of Uttar Pradesh. So far as entries of Jamabandi are concerned, the same also contain the name of Sarkar Daulat Madar in the column of owner and the name of predecessor of the petitioner was shown as Maurosi Kastkar. The petitioner''s predecessors were recorded as tenant in the land and not as lessee. No lease was ever granted by the State Government in favour of the petitioner or his predecessor nor the petitioner has brought on record any written lease ever granted to the petitioner''s predecessor in respect of the land in question. Nagar Palika Parishad, Allahabad wrongly entered the land in the Nazul Register. The extract of register maintained in the office of the Nagar Palika Parishad appears to have been prepared in the year 1981-82 and a reference of the Government order dated 24th October, 1910 was made in column No. 6, though there was no written lease concerning the land in question as is evident from the entry in column No. 10 of the extract of register. The occupancy tenant had a limited right and were controlled Under the U.P. Tenancy Act after its enforcement and prior to same the rights were governed by the provisions of the North Western Provincial Land Revenue Act, 1873, as amended time to time. It is wrong to say that in absence of any written grant, the petitioner would enjoy the rights as vide as can be. In respect of the Government Order dated 04th August, 1930, as relied upon by the petitioner, the answering respondents have stated that it is a letter which shows that the same was sent in respect of some Nazul plot held by Lala Man Mohan Das, without a lease of the same, situated in old Civil Lines, Allahabad, whereas the land in question is stated to be situated at Beli Uparhar and not in Civil Lines. It nowhere indicates that the same was concerning the land in question. Therefore, such Government order cannot be related to the land in question. In respect of the report submitted by the In-charge District Magistrate, Allahabad dated 21st May, 2001, as relied upon by the petitioner in paragraph-22 of the writ petition, it has been submitted that it is not relevant for the purpose as the then Collector In-charge was not having complete record with him and deferred action in absence of relevant records. So far as Government Orders dated 31st December, 1982 and 27th October, 2001 are concerned, the answering respondents also state that such orders were rescinded by a subsequent Government order dated 26th October, 2002 directing the double entries to be decided by the District Magistrate on consideration of the material in the light of the direction contained in the said Government Order. The land in question was not wrongly included while deciding the double entries by the District Magistrate, Allahabad. With regard to the opinions of the Advocate Generals, it has been submitted that opinion of an Advocate to its client is a privilege and cannot be relied upon by the petitioner and no decision can be taken on the basis of opinion of a counsel to his client. It is communication between the two not meant for any other purpose and an opinion of Advocate is not binding upon the client. The petitioner like others succeeded in getting an entry in the Municipal Record, which is made only for the purposes of assessment for collection of House Taxes and on that basis a corresponding entry was made in the register maintained in the Nazul Department. It has further been submitted that mere possession of the petitioner would not confer title on him as the same was with the permission of the Government. The nature of the land, however, is to be determined by the Government in its own authority as the Government Estate land as well as Nazul land both vest in the Government and the person, who entered in the land with the permission of the Government, cannot compel the Government to treat the land in any particular manner. Occupancy tenant is a category of tenancy under the U.P. Tenancy Act. An occupancy tenant is such which on the basis of possession has entered only the land in question and whose possession was more than the prescribed period. The record of the Municipal Corporation is not decisive for the purpose of present writ petition. The petitioner has not brought on record any document to establish his period of more than 150 years of continuance. The petitioner, who has been shown as occupancy tenant in the record, cannot claim a better right than that of occupancy tenant. The land in question continued to be recorded in the records of the Government Estate and those entries are uninterrupted till date. The land, therefore, cannot be treated to be of any other category than one of the Government Estate. According to the answering respondents, the petitioner has not been able to bring on record any document prior to the period of settlement of Allahabad District in 1875 and it is wrong to say that the Government has decided in the year 1910 to record the lease in question as land of the petitioner. The principle of estoppel against the State does not attract. The petitioner has no fundamental right in the land in question and occupancy tenant has a statutory rights which are regulated and controlled by the statute. Moreover, the right of property is not a fundamental right under the Constitution. The order passed by the District Magistrate requires no interference. The District Magistrate has only decided the nature of the land and not the right of the petitioner. No decision has been taken to dispossess the petitioner from the land in question, therefore, the petitioner cannot be said to be a person aggrieved as his status of occupancy tenant over the land in question continued to be unchanged by expunge of the entry from the Nazul register. The order of the District Magistrate has been complied and the entries have been corrected.
13. Refuting the submissions made in the counter-affidavit, rejoinder has been filed by the petitioner by reiterating the stand taken in the writ petition. In respect of the references made in the counter-affidavit to various orders and writ petitions, it has been submitted that the case of the petitioner is entirely different and stands on different footing with altogether different facts which has nothing to do with the land/properties owned by others. The Supreme Court or this Court has never passed any order declaring the land as Government Estate land or taking away the rights of the petitioner as the rights of the petitioner continued to be governed by the Government Order dated 4th August, 1930, which still exists and has neither been revoked nor recalled. Photocopy of the Government order dated 24th October, 1910 has been brought on record as Annexure RA-1. Apart from that, the petitioner has also brought on record a Government order dated 21st August, 1954 to establish that entire Village Beli Uparhar was transferred to the local authority i.e. Allahabad Municipality being Nazul land for dwelling purpose. Such Government order has neither been recalled nor set aside in any proceedings before any Court of law and still holds good. Applicability of North Western Provincial Land Revenue Act, 1873 has been denied as the predecessor of the petitioner came in possession even prior to 1873. Land in question is the same which is situated at 353/1, Beli Uparhar and was subject-matter of Government Order dated 04th August, 1930. Old Civil Lines was earlier known as Beli Uparhar. Denying the averments made in paragraph 38 of the counter-affidavit, it has been submitted that there is a vast difference between the Government Estate land and Nazul land and the both do not stand on the same footing. Right of the petitioner would be severely affected in case land in question is allowed to be treated as Government Estate land. The respondents have all along treating the land in question to be falling in the category 6-Ka, as clearly reflects from Khatauni 1402 Fasli, and hence they cannot be allowed to take away long standing right of the petitioner. The Government Estate land is registered under 6-Ga. The Government order dated 4th August, 1930 admittedly having never been recalled, the rights of the petitioner became absolute and having been recognized and exercised for a long time, which cannot be taken away by means of order of a District Magistrate. The District Magistrate has failed to take into account all the Government orders and further failed to give any opportunity of hearing and also to examine the reply/objection filed by the petitioner before proceeding to decide the case.
14. By way of supplementary affidavit filed on 22nd March, 2010 the petitioner has brought on record the Khatauni of 1402 Fasli, wherein the name of the petitioner has been shown at Serial No. 23 classifying the property as falling in the category 6 (ka) of Nazul manual. By filing another supplementary affidavit dated 17th July, 2012 the petitioner has stated that due to inadvertent mistake, in paragraphs of the writ petition "consolidation proceedings" have been mentioned, whereas in fact it is "settlement proceedings" and may be read as such. It is not in dispute that the land in question falls in the municipal area and the municipal number of land in question is 3, Katra Road, Allahabad. Sometimes around the year 1945-1950 name of Katra Road was later on changed to Master Zahurul Hasan Road. Jamabandi register of 1282 Fasli shows that the land was Khasra No. 404 measuring an area of 11 Bighas 15 biswas and was recorded in the name of Lala Manohar Das. Such Khasra No. 404 was divided into two plots i.e. Khasra Nos. 404/1 and 404/2, which later on became Khasra Nos. 352 and 353 respectively. Land in question was recorded as non-agriculture and no land revenue was being collected thereon. Lala Kanhaiya Prasad, Lala Manohar Das, Lala Ram Charan Das, Lala Madho Prasad, Lala Man Mohan Das and Ram Mohan Das are predecessors of the petitioner.
15. Upon hearing the parties and going through the entire records of the writ petition, we find that there is so much factual dispute involved in this writ petition as the averments of one side have been denied by the other side even controverting the Government records. From the documents annexed with the writ petition and various affidavits either filed by the petitioner or the respondents, the land in question appears to be in the occupancy tenancy of the petitioner. Several documents have been filed by the petitioner to show that the land in question has been given to the local authority i.e. Municipality Allahabad, from which the submissions made by the respondents that the land in question was never given to the Municipality or Nagar Nigam, Allahabad appears to be incorrect. Existence and authenticity of the documents of the Government Departments being Government orders, Gazettes, revenue records, records of the Nagar Nigam cannot be denied by the Government officials themselves in the cursory manner as has been done by the authorities concerned under the impugned order/s on the ground of non-availability of the same or otherwise. No where it has been established by the respondents that such entries have been procured by the petitioner or his predecessors by misrepresentation or fraud. If any party refers to any Government document or relies upon the same without producing the same on account of non-availability or any other reason, it is duty and responsibility of the Officer/official of the Government departments to verify it from its own record or if not available, by requisitioning it from the concerned department in order to ascertain such facts. Against this background, we are of the view that such a long standing entries and status as well as possession over the land in question, as has been tried to be established by the petitioner to be continuing in his favour, cannot be taken away by the District Magistrate or any other authority without passing any exhaustive and reasoned order dealing with all the materials, records, objection, if any, filed by the parties and also without giving any opportunity of hearing to the party concerned, who is going to be affected by such order. In all, there appears to be some force in the submission of the petitioner, which requires consideration afresh by the appropriate Governmental authority.
16. Against this background, we are of the view that the impugned orders passed by the Mukhya Nagar Adhikari, Nagar Nigam, Allahabad dated 9th August, 2001 and also the order dated 23rd September, 2009 passed by District Magistrate, Allahabad, impugned in the present writ petition, cannot be sustained and are hereby quashed. The petitioner is directed to file his application before the District Magistrate, Allahabad for the purpose of consideration of his cause afresh. Such application will be made by the petitioner within a period of fifteen days from this date. For the purpose of effective adjudication a copy of the writ petition and also copies of all the affidavits alongwith their annexures, as have been filed by all the parties before this Court, will be treated to be part and parcel of such application and supplied by the petitioner. The District Magistrate, on receipt of such application, will consider the entire materials, deal with the same and upon giving fullest opportunity of hearing to the petitioner and all concerned will pass a fresh reasoned order within a period of three months thereafter. The District Magistrate shall pass the order independently, without any prejudice of our observations. Accordingly, the writ petition is disposed of, however, without imposing any cost.
Hon''ble P.K.S. Baghel, J.
I agree.
