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BHAIYA AJEET SINGH versus STATE OF U.P. THRU' THE COLLECTOR BALLIA AND OTHERS

High Court of Judicature at Allahabad

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Bhaiya Ajeet Singh v. State Of U.P. Thru' The Collector Ballia And Others - WRIT - C No. 12379 of 2004 [2006] RD-AH 9023 (5 May 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc.Writ Petition No.12379 of 2004

Bhaiya Ajeet Singh Vs. State of U.P.and others

Hon.R.K.Agrawal,J.

Hon.Sanjay Misra, J.

(Delivered by Hon.Sanjay Misra,J.)

The petitioner has invoked the writ jurisdiction of this court by alleging that the Urban Area Zamindari has  been  abolished in 12 acres of agricultural land situate within  the Municipal limits of the city of Ballia and the rest of the land being 268 acres within the said  limit is Non-ZA and therefore,  the State  respondents cannot interfere in the rights  of the petitioner and other Zamindars in the Non-ZA areas. He has filed this writ petition also for the benefit of other Zamindars. The petitioner alleges that he is Lambardar  and co-sharer with other Zamindars. The Nagar Palika, Ballia was constituted under section 3 of the U.P. Municipality Act 1916 and the entire land of the villages Middhi and Bishunipur was included within the Municipal limits in the year 1916. The Zamindars  are recorded  in the  khewat no.3 and 5 of the year 1409F to 1412F. An  agreement  dated 23.1.1885 was executed in favour  of the ancestors of the petitioner by the erstwhile Zamindars. The petitioner was therefore,  entitled  to collect rent, license  fee or ''Sayar' under the provisions of the U.P. Tenancy Act 1939. He therefore,  made an application dated 18.10.2001 before the Sub Divisional Magistrate, Ballia to issue receipt book to  the Zamindars for realization  of license fee ''Sayar' etc. and the same were got printed and  were duly issued by  the Tahsildar Ballia.  The petitioner and other Zamindars  are collecting the same and depositing  the land revenue  regularly.  The U.P. Urban Areas Zamindari Abolition Act 1956 came  into force  and after

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survey  under section 3 and 4 only an area of 12 acres land  was demarcated as  agricultural land within  the municipal limits of Ballia  which comprised  of villages Middhi and Bishunipur. A notification  dated 6.5.1972 under section  8 of the Act was issued  vesting such agricultural areas, as demarcated, in the State of U.P. free from all encumbrances.  Upon issue  of the notification  certain licensees of the Zamindars started claiming  themselves to be owners  of the land  of which they were  licensees although they had  no transferable  rights  under the U.P. Tenancy Act 1939, or under any  other law, and began transferring the land  by registered sale deeds  and the Revenue Department mutated their names in the records of rights.  Consequently,  the  petitioner made an application dated 19.10.2001  to the  Additional District Magistrate, Ballia to hold an enquiry regarding  such illegal mutations being made  on the basis  of sale deeds  executed by mere  licensees of the Zamindars. An inquiry was ordered wherein the Tahsildar, Ballia submitted  that there was no notification relating  to Zamindari Abolition in Urban Area of Ballia Municipality in his office. The Sub Divisional Officer, Sikkandarpur gave his report dated 10.6.2002 and found that Urban Area Zamindari  has not been abolished  and that  that the petitioner  is Zamindar.  He however recorded  that the Zamindar had no rights  over markets etc.  and a report  for the said purpose be obtained  from Nagar Palika Parishad, Ballia. The Additional District Magistrate ( F/R) Ballia gave  his report dated 2.12.2003 finding  no merits  in the  application of the petitioner and found the same as liable to be rejected for the reasons stated therein. It has further been averred that  the State Government has issued various government orders  relating to grant of freehold rights over nazul property and some of the licesees of the zamindars have applied for grant of the same which has been granted by the State Government. The petitioner therefore, moved an application dated 3.10.2003 before the Collector , Ballia requesting him to abide

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by the orders passed  by the Hon'ble Supreme Court of India in S.L.P. No.1557/98 State of U.P. Vs. Satya Narain Kapoor, however, no orders have  been passed  by the Collector, Ballia.  It has been averred  that there is no  nazul property  in village Middhi and Bishunipur  within the municipal limits of Ballia and the petitioner and  other zamindars still hold propriety  rights  as zamindars over 268 acres  of land therein. Therefore, the respondents  by aforesaid actions are illegally depriving  the petitioner and his co-sharers  of their property in contravention of law  and their  rights under Article  300A of the Constitution of India.

A counter affidavit  has been  filed  by the District Magistrate, Ballia. It  has been stated that the petitioner has an absolute remedy of filing a civil suit for declaration of his rights and the reliefs claimed  in the writ petition are not maintainable. The writ petition has been filed for the benefit of the Zamindars but none of the parameters  of Public Interest Litigation  are involved. It has been denied that the petitioner was ever appointed as Lambardar  and also that the petitioner was ever recorded  as a zamindar in the revenue records. It is stated that the wajibul arz relied upon by the petitioner has no relevancy for  the purpose of adjudication of the  controversy  raised in this writ petition. The zamindari of agricultural area of the two villages  was abolished by the notification  dated 6.5.1972 and the Non-Z.A. land was either  in the control, ownership  and management  of the Municipality Board or its private owners  having their houses and apertinent land.  It has been stated that  the receipt book  issued by the Tahsildar was illegal and a press memorandum dated 27.8.2003 has already been issued canceling  the same. Connivance and conspiracy  between certain  Revenue Department officials  and the petitioner  has been alleged and the departmental  and criminal proceedings are to be initiated against them. The petitioner has failed

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to produce  any records regarding  the description of the property for which  relief is sought and such a claim made after 29 years of the notification  under section  8 of the Act  is highly belated particularly when there is no evidence  that the petitioner  was ever appointed as Lambardar  or was a  zamindar. It is stated that'Mahal' would include any land  which is occupied by construction of houses etc. and land apertinent thereto in Urban areas and for which no rent  is payable  and therefore, the provisions  of U.P. Tenancy Act and U.P.Land Revenue Act  would not be applicable.  It has specifically been stated that  no khewat has been prepared  for the two villages  since the abolition of Urban Area Zamindari in Ballia and the petitioner in collusion with the  Naib Tahsildar, Ballia got the mutation made in the old khewats. The Naib Tahsildar has no authority or jurisdiction  to pass an order  for mutation in the khewat after expiry of a long period  from the death of  a person. In the old khewats  the names of dead persons still exist and no mutation has been made  regarding  those dead persons, but only the petitioner, his brothers and mother's names have been mutated.  The petitioner is not entitled  to realize  rent etc. or to manage the land as a zamindar or Lambardar since the abolition  of Zamindari on 6.5.1972.

The respondent no.3 Nagar Palika Parishad, Ballia  has filed  counter affidavit  of its Chairman and denied the claim  of the petitioner. It has been stated that the two villages are within the territorial area of the Nagar Palika Parishad since 1916 and there is no zamindari of the petitioner therein. The petitioner has not filed any document to show  his rights as claimed. The Municipal Laws are applicable in the area and the right to collect tehbazari exists  with the Nagar Palika Parishad.

In the rejoinder affidavit the petitioner has reiterated  that the petitioner and other Zamindars  continue to be owners of Non-Z.A. land which has not been demarcated as agricultural land under the

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Act. The order dated 2.12.2003 has been said to have been passed for political  motives. No records relating to demarcation of land have been produced by the State hence  an adverse inference ought to be drawn. The petitioner being Lambardar  as well as co-sharer and owner of Non-Z.A. land can represent  the interest of his co-sharers under  law. Reliance has been placed on the revenue entries in khasra and khewat relating to the year 1409F to 1412F, 1405 F to 1406F and 1290-91F. It is reiterated  that the notification  dated 6.5.1972 related only to the demarcated  area as agricultural land whereas this writ petition relates  to non-Zamindari abolition area.  Mere inclusion  of an area in the Municipal limit does not  vest the land, houses, markets etc. in the Municipality  and it does not divest the owners of their rights  or title  to the land. The allegations of connivance  with revenue department officials  has been denied  and the right to realize license fee or ''Sayar' under the U.P. Tenancy Act  has been reiterated. The land of the Zamindars is being wrongly treated as ''Nazul' land  and  the authorities  are illegally conferring free hold rights on the licensees  of the petitioner and  other Zamindars. The land of the petitioner has never vested with the Nagar Palika and therefore, the local body has no authority to collect tehbazari of private markets.

Sri V.K.S.Chaudhary, senior Advocate assisted by Sri R.S.Maurya learned counsel for the petitioner has argued that the notification dated 6.5.1972 issued under section 8 of the U.P.Act No. IX of 1957 related only to 12 acres of land which were demarcated as agricultural area under section 3 and 4 of the Act and therefore, the Urban Zamindari stood abolished to that extent alone in the villages Middhi and  Bishunipur within the municipal limit of Nagar Palika, Ballia. He submits that  with respect to rest of the area of 268 acres of land within the municipal limits   Zamindari was never abolished.  The petitioner, his co-sharers and  Zamindars continue to be zamindars of the Non-Z.A. land and  their rights as such  cannot be

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curtailed  or divested  without the authority of law. He has referred to the revenue entries as contained  in annexure-1 and 2 to the writ petition and submitted that the name of the petitioner has been recorded as a Lambardar  and the names of the  khewatdars have been recorded in column no.6. This khewat relates  to the year 1409F to 1412F. The petitioner  and other members of his family have been recorded as khewatdars on an area of 1-03 having land revenue  of 1-40 in plot/khata no.3.  Similarly in plot/ khata no.5 they have been recorded  over an area of 0.85 having land revenue of 0.42 and the petitioner's name also finds place as a Lambardar. This also relates to 1409F to 1412F. Referring  to the document dated 23.1.1885 as contained in annexure-3 to the writ petition he submits that this agreement was in the form of ''Wazibul-arz and was executed in favour of the ancestors of the petitioner by the ancestors of the present Zamindars. He, therefore, submits that  since khewats show the names of the proprietors of Non-Z.A. area and the petitioners family are recorded therein hence rights  are conclusively proved. Further that the name of the petitioner  has also been mentioned as the Lambardar in the khewats relating to the two villages therefore he  is also the Lambardar entitled to exercise his rights over the land  recorded therein.  Sri Chaudhary has also placed before  this court khewat entries with respect  to other persons including  the petitioner relating to the various Fasli periods over other plots  and submits that the same  being voluminous could not be filed along with the writ petition. He submits that  all entries  shall be presumed  to be true  in view of section 44 of the U.P. Land Revenue Act. He has referred to the statements made by the lekhpal (annexure-10 to the writ petition), the statement of the petitioner  (annexure-11 to the writ petition) recorded  during the enquiry made on the petitioner's application dated 19.10.2001 and also  the report of the Tahsildar, the Sub Divisional Officer, Sikandarpur  and the report of the Bhumi Vyavastha Lipik

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and submitted  that Urban Zamindari  has not been abolished  in the two villages in question hence  the petitioner  and other Zamindars  cannot be divested of their rights  to their property. Referring to the order dated 2.12.2003 learned counsel  has argued  that the definition  of ''Mahal' has been wrongly interpreted  by the authority it has been interpreted  only on the report  of the District Government Counsels. Such reports were not  provided  to the petitioner nor any opportunity of hearing  was given before passing  the said order. He submits that ''Mahal includes all such areas held under a separate engagement for payment of land revenue. The petitioner being a Lambardar would be entitled  to collect the license fee ''Sayer' etc. from their ''Mahal' existing in the Non-Z.A. land in the two villages. He submits that the Non-Z.A. land is not Nazul land and the licensees have no right to transfer the land  held by them as licensees.  The action of the respondents in conferring free hold rights to them is therefore, illegal and a writ  of prohibition ought to be issued to such effect.

Sri Sanjay Goswami, learned Standing Counsel appearing on behalf of the respondents has raised a  preliminary objection to the effect  that the petitioner cannot maintain this writ petition  for a declaration of title which involves adjudication of disputed questions of fact. He further contends that this writ petition appears to be in the nature  of a  Public Interest Litigation but none of the parameters of a Public Interest Litigation  are involved.  Referring  to various paragraphs  of the counter affidavits Sri Goswami  submits that  the petitioner has not described or  identified  the land over which he is claiming Zamindari rights or his rights as a Lambardar. In absence of such particulars  the averments in the writ petition  are vague and unclear. He states that  the petitioner is actually attempting to make a fishing inquiry with respect to records which are more than 30 years old  and are of before the notification issued under section 8 of the Act No. IX of 1957. In the absence of any identification of the land for

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which relief is sought no effective relief can be granted. He contends that the documents as contained in annexure-1 and 2 to the writ petition relate to 1409F to 1412F i.e. the year 2001-2002. The names of the petitioner's family have been entered  due to connivance with the Naib Tahsildar illegally particularly when no khewat has been prepared since after abolition of Urban Area Zamindari in the year 1972. The presumption under section 44 of the Land Revenue Act is only until the contrary is proved. He submits that  necessary departmental action is being taken against the concerned officials  and the said khewat being forged and fictitious cannot be relied upon. It has further been argued that section 45 of the U.P.Land Revenue Act stood deleted by U.P.Act No.1 of 1951 therefore,  appointment of the petitioner  as Lambardar  was not at all possible. Moreover, no order has been filed  by the petitioner in support of his claim of having been appointed as a Lambardar.

The petitioner has contended that his  case relates only to the Non-ZA area within the municipal  limit of Ballia. He has based  his claim on the basis that only 12 acres of land  within the said limit  was demarcated  under the Act as being agricultural land.  Consequently,  his case is that the rest  of 268 acres of land  within the municipal limit is Non-ZA. In support of his claim the petitioner has filed revenue entries in the form of khewats as annexure-1 and 2 to the writ petition. Learned counsel  has also produced  before the court  certified copy of other records pertaining to  revenue entries.  Upon a perusal  of annexure-1 and 2 as well as  the records produced  by the learned counsel for the petitioner it appears that the petitioner and other zamindars  have been recorded  in the said khewats. In reply the respondents have alleged that  the said revenue entries in the khewats have been obtained by connivance and conspiracy between  certain revenue department officials and the petitioner. It is their case that no khewat has been prepared after abolition of Urban Area Zamindari in

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district Ballia. It is their case that any entry made in the khewat subsequent to the abolition of Urban Area Zamindari is illegal  and without jurisdiction. For the said reason  the respondents have stated on affidavit that  departmental and criminal proceedings are to be initiated  against  the officials who had connived with the petitioner for making  the said  entries in the khewat. They supported their contention by saying  that except for substitution of the name of the petitioner, his brother and his mother in place of their ancestors, the names of no other dead  person finding  place  in the old khewat has been  substituted by their legal heirs. The respondents case is that  the names of the petitioner and his family have been substituted  in place of  their ancestors much after the Urban Area Zamindari  was abolished  and such substitution made by the Naib Tahsildar  was without jurisdiction and could not have been done. From the aforesaid  it is quite clear that  there is a dispute between the petitioner and the respondents with respect to genuinity of the entries made in the khewat upon which  the petitioner  has placed reliance.

Another entry made in the khewat  shows that the petitioner has been shown as a Lambardar. The respondents on the other hand contended that appointment of a Lambardar used to be made   under section 45 of the U.P. Land Revenue Act and the said section was deleted from the Act by U.P.Act No.1 of 1951. Consequently, it is not possible that the petitioner was appointed as Lambardar under the provisions of Land Revenue Act after  the deletion of section 45 in the year  1951. The respondents contend that the petitioner has not filed  any order to indicate that he was appointed as Lambardar. Consequently, they stated that  in absence of any evidence that any order appointing the petitioner  as Lambardar was passed by any authority competent to do so   the entry in the khewat to such effect  in favour of the petitioner is of no help to the petitioner, apart from  the

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fact that the said entry was forged and fictitious and was   obtained  by the petitioner in connivance with some  revenue officials.

From the aforesaid averments made by the parties it is quite  apparent that the dispute between the parties is not only with respect to  entries  in the revenue  records  but also with respect to the   claim of the petitioner that  he is a Lambardar.    The factual dispute between the parties can be adjudicated only upon proof by exhaustive evidence. In view of the dispute raised regarding the entries  this court is of the view that unless it is proved that  the entries have been recorded in exercise of the official duties by a government servant  the same cannot be relied upon.  In case  the entries had been made without proper checking,  the same would require corroboration and cannot be assumed  to be correct. It would  not have much evidentiary value in the absence of the material upon which it was recorded. This court under Article 226 of the Constitution of India  can not effectively adjudicate such rights on the basis of affidavits. Since  genuinity  of the very  documents  relied upon by the petitioner  has been disputed by the respondents  this court  in writ jurisdiction  can not decide  as to whether  the said  documents or entries  which are under dispute are genuine or not.

The contention of the learned counsel  for the petitioner  that  entries in the khewats   would be presumed to be true under section 44 of Land  Revenue Act cannot  also be  construed in his favour  inasmuch as the entries in the original khewats itself have been stated tobe  forged, fictitious and made  without jurisdiction. It is settled law that such entries cannot confer any right and the presumption of correctness under section 44 is rebuttable. Sanctity is attached to entries of long standing whereas in this case the alleged entries relate to recent times. Therefore,  certified copy  of the khewat  containing

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the aforesaid  disputed entries  will not entitle  the petitioner  to claim the benefit  of section 44 of U.P. Land Revenue Act.  It is therefore found that the petitioner has not come up with sufficient  evidence  or documents  to establish  the fact that he is a Lambardar or co-sharer with other  zamindars  of the area of 268 acres  within the  municipal limits of district Ballia from where Urban Area Zamindari  has been abolished by notification under the Act. Due to lack of sufficient evidence  and due to serious dispute with respect to documents filed by the petitioner  this court can not effectively adjudicate upon the claim of the petitioner  that he and other zamindars are  having proprietary rights over 268 acres of land within the municipal limit of district Ballia.

The second document  upon which reliance  has been placed by the petitioner is an agreement dated 23.1.1885 which has been described as Wajibul-arz. A perusal of the said annexure does not indicate  as to who had executed  the said document and in whose favour. A copy of the agreement   has been filed  as annexure-3  to the writ petition and it  does not appear tobe in any manner related to the petitioner therefore reliance placed  by the petitioner upon the same  appears to be misconceived.

The petitioner's contention is that  upon his application dated 18.10.2001 the Sub Divisional Officer, Ballia issued receipt book to the zamindars  for realization of license  fee etc. and therefore,  they are collecting the same and depositing  the land revenue. According to them, since they are zamindars they were issued the receipt books. This contention made by the petitioner has been contested by the respondents who have stated that the receipt books issued by the Tahsildar  was illegal and by a press memorandum dated 27.8.2003 the same has been cancelled by the respondents. The petitioner has not brought any thing on record  to indicate as to whether the said receipt  books issued by the Tahsildar enabling the petitioner to exercise the

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rights of a Zamindar or Lambardar was on the basis of any existing  legal right in favour of the petitioner, particularly when on the application of the petitioner the Tahsildar is alleged to have got these books  printed and issued  to the petitioner. The respondents  have stated  that they are contemplating departmental and criminal proceedings against  such officials. From the above, it is seen that there is serious factual dispute  between the parties with respect to  issue  of receipt books and collection of  license fee etc. by the petitioner as a Zamindar or Lambardar from the land within the municipal limit of district Ballia. Such factual dispute also cannot be adjudicated by this court  in its writ jurisdiction.

It is no doubt true that the areas which have not been demarcated  under section 3 and 4 of the Act and have not been declared as agricultural land would be non-ZA land.  However, in order to establish his claim the petitioner ought to have given specific  details of the land  over which he was claiming his right  on the basis that it was Non-ZA land.  Such detail has neither been given by the petitioner nor relief has been claimed with respect to any particular area duly identified by them. The averments made  in this writ petition on this score appear tobe very vague and the respondents contend that they were not in a position to give effective reply with respect to any specific land which has not been identified by the petitioner. This court in its jurisdiction is, therefore, unable to adjudicate upon the controversy which is mainly factual.

In so far as  the reliance placed by the petitioner on the reports of various revenue authorities is concerned  the reports as filed  along with this writ petition indicate that the Tahsildar  in his report has stated that there was no notification relating to abolition of Urban Area Zamindari in district Ballia available in his office. The notification u/s 8 of the Act is on record. Such a report can not lead to the conclusion that the Urban Area Zamindari has not been abolished

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particularly when there is  notification under section 8 of the Act abolishing Urban Area Zamindari. The report is therefore incorrect on the face of it.  Similarly, the report  of the Sub Divisional Officer, Sikandarpur is based  on the incorrect report of the Tahsildar wherein he says that Urban Area Zamindari has not been abolished, therefore, the petitioner is zamindar. This report obviously has not  taken into consideration the area wherein zamindari was abolished  nor the areas which have been left out during the demarcation u/s 3 and 4 of the Act. Such report of Sub Divisional Officer can not be  of  any help  to the petitioner in establishing his right as zamindar.

It is settled law that every state action is believed to have been taken in accordance with law until the same is successfully challenged and the real state of affair is shown to be different from what is stated in the government publication.  The notification under section 8 of the Act has admittedly been issued on 6.5.1972 and Urban Area Zamindari has been abolished  over agricultural areas within the municipal limits of district Ballia. The Non-ZA areas have not been identified by the petitioner by any cogent evidence.

For the aforesaid reasons no relief can be granted to the petitioner by this court in exercise of its jurisdiction under Article 226 of the Constitution of India. This writ petition lacks merit and is accordingly dismissed. However, there will be no order as to costs.

May 5,2006

Gc.


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