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Bhaiya Ajeet Singh v. State Of U.P. Thru' The Collector Ballia And Others - WRIT - C No. 12379 of 2004  RD-AH 9023 (5 May 2006)
Civil Misc.Writ Petition No.12379 of 2004
Bhaiya Ajeet Singh Vs. State of U.P.and others
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
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
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
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
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
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
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
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
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
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
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
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
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.
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