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NAGAR PALIKA PARISHAD THRU' ITS EXECUTIVE OFFICER versus SHEESH PAL & OTHERS

High Court of Judicature at Allahabad

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Nagar Palika Parishad Thru' Its Executive Officer v. Sheesh Pal & Others - SECOND APPEAL No. - 1063 of 2006 [2007] RD-AH 16239 (3 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 27

Second Appeal No. 1063 of 2006

Nagar Palika Parishad, Noorpur Vs. Sheesh Pal (since deceased) and others

~~~~

Hon. Dilip Gupta, J.

The plaintiff has filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional District Judge (Court No.2), Bijnor by which the Civil Appeal, that had been filed by the defendants, was allowed and the judgment and decree passed by the Trial Court was set aside.

The Original Suit had been filed by the Nagar Palika Parishad for permanent prohibitory injunction to restrain the defendants from taking possession of the suit property or making any constructions. It was stated that the Nagar Palika Parishad was the owner in possession of the suit property. The area was earlier within the territorial limits of Gaon Sabha but was later on transferred to the Town Area and now was situated within the territorial limits of Nagar Palika Parishad, Noorpur. It was further asserted that the disputed property had never been allotted to any person.

The defendants filed a written-statement. It was denied that the property in dispute was ever transferred to Nagar Palika Parishad as during the consolidation proceedings, all the property left out from consolidation operation was entered as Barren land. Such barren land did not vest in the Gaon Sabha and, therefore, also did not vest in Nagar Palika Parishad. It was also asserted that the property in suit was allotted to defendant No.3 Jaswant Singh who constructed a boundary wall and also raised some construction and upon the abolition of Zamindari the property settled with him. Subsequently, defendant No.3 executed a sale-deed in respect of the disputed property in favour of defendant No.2 in the year 1998.

The Trial Court decreed the suit but the Lower Appellate Court allowed the Civil Appeal and set aside the judgment and decree of the Trial Court.

The Lower Appellate Court noticed that it was not in dispute that the property in dispute earlier was within the territorial limits of the Gaon Sabha and subsequently it came under the Town Area and then within the territorial limits of Nagar Palika Parishad, Noorpur. The Lower Appellate Court examined the effect of transfer of a particular area from within the territorial limits of Gaon Sabha to the territorial limits of any other local authority upon the rights of the Gaon Sabha and after placing reliance upon a Division Bench decision of this Court in Mohammad Shafi Vs. Gram Sabha, Village Bisauli, 1970 RD 450 observed that as the State Government had not made a declaration transferring rights in a particular plot as well as the powers and functions in relation to that land to another local body, the Gaon Sabha would continue to exercise its rights and perform its functions as before and mere transfer of the territory from a Gaon Sabha to a Town Area will not divest the Gaon Sabha of its rights in such land. The Lower Appellate Court also observed that from the conjoint reading of Sections 117 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act'), 126 of the U.P. Municipalities Act and 8 and 34 of the U.P. Panchayat Raj Act, it is clear that if there is no notification issued under sub-section (2) or (6) of Section 117 of the Act divesting the area resuming the property rights of Gaon Sabha, the rights vested in the Gaon Sabha shall continue to vest in it. The Lower Appellate Court concluded that the findings given by the Trial Court were in the teeth of the aforesaid provisions and, therefore, the judgment and decree of the Trial Court was set aside.

I have heard the learned counsel for the appellant and the learned counsel appearing for the respondents.

Learned counsel for the appellant submitted that the property belonged to the Nagar Palika Parishad and the findings to the contrary recorded by the Lower Appellate Court are incorrect. He, therefore, submitted that as respondent No.3 had no title in the land in dispute, he could not have transferred the property in favour of respondent Nos. 2 and 3.

Learned counsel appearing for the respondents, however, submitted that the judgment given by the Lower Appellate Court is based on a Division Bench decision of this Court and it has been rightly found by the Lower Appellate Court that the Nagar Palika Parishad was not the owner of the property in dispute.

I have carefully considered the submissions advanced by the learned counsel for the parties. It is not in dispute that the plot in dispute situated in Khasra No. 626 was earlier within the limits of Gaon Sabha. The Division Bench of this Court in Mohammad Shafi (supra) after analyzing the various provisions of the Act, the Municipalities Act and the U.P. Panchayat Raj Act observed as follows:-

"Sub-section (3) of Section 117, U.P. Zamindari Abolition Act expressly provides for extra-territorial vesting of property. Under it, if a declaration has been made vesting lands in a particular Gaon Sabha, and the village or part of the village in which such land is situate, falls outside the circle of the Gaon Sabha, even then, such Gaon Sabha is entitled to perform, discharge and exercise functions, duties and powers assigned by the Zamindari Abolition Act, or the Panchayat Raj Act on a Gaon Sabha, as if the village or part of the village lay within that circle. Thus, even though a particular plot of land may go outside the territorial limits of a Gaon Sabha, yet the Gaon Sabha is entitled to continue to perform, discharge or exercise the functions, duties and powers under the mentioned Act, in spite of such transfer on the footing that part of the village lay within its circle. So, so long as the State Government does not make a declaration, transferring the rights in a particular plot as well as the powers and functions in relation to that land to another local body, the pre-existing Gaon Sabha would continue to exercise its rights and perform its functions, as previously. Mere transfer of the territory from a Gaon Sabha to a Town Area will not divest the Gaon Sabha of its rights in such lands. Under sub-section (6), the State Government can at any time amend or cancel any declaration or notification made in respect of any of the thing mentioned in sub-section (1), including lands, and resume such things, and, on such resumption, the Gaon Sabha is entitled to be paid compensation on account of developments, if any, effected by it on the land. This will show that the resumption by the State Government is not automatic. It can be brought about only by a notification in the Gazette.

In the present case, there was no notification either under sub-section (3) or sub-section (6) of Section 117, Zamindari Abolition Act, divesting or resuming the property rights of the Gaon Sabha in plot No. 861. Consequently, the rights, which were vested in the Gaon Sabha, Bisauli, continued to vest in it."

The judgment of the Lower Appellate Court has been rendered on the basis of the aforesaid decision. There is, therefore, no infirmity in the judgment under Appeal.

The Second Appeal is, accordingly, dismissed at the admission stage as no substantial question of law arises for consideration. Interim order, if any, stands vacated.

Dt/- 3.10.2007

Sharma


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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