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ALIGARH NMUSLIM UNIVERSITY ALIGARH versus STATE OF U.P. THRU' REVENUE SECY. & OTHERS

High Court of Judicature at Allahabad

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Aligarh Nmuslim University Aligarh v. State Of U.P. Thru' Revenue Secy. & Others - WRIT - C No. 24217 of 2004 [2007] RD-AH 4338 (14 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.19

Writ Petition No. 24215 of 2004

Aligarh Muslim University, Aligarh      v.        State of U.P. And others

Connected with

Writ Petition Nos. 24216, 24216, 24217, 24218, 24219, 24220

and 24221 of 2004.

Hon. S.N. Srivastava, J.

All these writ petitions arise out of proceedings initiated on Applications moved under Section 163 of the U.P. Tenancy Act by Aligarh Muslim University for recovery of certain land revenue and for ejectment of Defendants on the ground that the plaintiff is Zamindar of the land in dispute and Defendants are occupancy tenants/Hereditary Tenants   at the rate of Rs.23-60/= per year rent.  As the Defendants have not paid the rent which was due from 30.9.1989 and further refused to pay any land revenue to Aligarh Mulsim University, they are liable for ejectment.

An objection to the said application was filed by contesting Respondents challenging the right of Aligarh Muslim University for instituting such Application under Section 163 of the U.P. Tenancy Act.  It was specifically denied that Aligarh Muslim University has any right or title in the land in dispute. Zamindari right or right of partition of land in dispute was also denied.  It was further averred in the objection that the land in dispute Zamindari was abolished on 1.7.1952. Thereafter, land in dispute came within the municipal limits of Nagar Maha Palika in 1949. Defendants acquired Bhumidhar rights of the land in dispute.  Application under Section 163 of the U.P. Tenancy Act was not maintainable.  In Paragraph-6 of the Replication filed by the Aligarh Muslim University, petitioner specifically pleaded that Aligarh Muslim University is an Institute of  public utility and was established for public purposes. As University is a Central Educational Institution, it is exempted under the notification dated 1st July, 1952 issued by the State Government under the U.P. Zamindari Abolition and Land Reforms Act.

The Tehsildar, Kole, District Aligarh by an order dated 4th August, 2003 held that U.P. Tenancy Act is not applicable to the land in dispute and petitioner has no right to institute such Application. An Appeal preferred by the Aligarh Muslim University was also dismissed by an order dated 24.2.1994.  A Revision preferred under Section 263 of the U.P. Tenancy Act was also dismissed.  

The Revisional court recorded a finding that the Zamindari was abolished on 1.7.1952 and, thereafter, land in dispute came within the limits of Nagar Maha Palika on 7.7.1949.  It was further found that the exemption, if any, under Section 1(3) and Section 2(1)(c) of the U.P. Zamindari Abolition & Land Reforms Act has already been withdrawn by the notification dated 15.10.1986 and in the present circumstances Defendants are Bhumadhars of the land in dispute.  These three orders of Opp. Party nos. 4, 3 and 2 are impugned in the present writ petitions.

Heard learned counsel for the parties.

Learned counsel for the petitioner urged that petitioner's rights are protected under the notification dated 1st July, 1952 under Section 2(1)(c) of the  U.P. Zamindari Abolition & Land Reforms Act and for the purposes of the present cases provisions of U.P. Tenancy Act are still applicable.  He further urged that petitioner is still recorded as Zamindar and has rightly filed an Application under Section 163 of the U.P. Tenancy Act for eviction and for recovery of arrears of land revenue which was maintainable and the judgment and orders of the authorities below suffer from error of law and are liable to be quashed.

In reply to the same, learned counsel for Respondents urged that the Application under Section 163 of the U.P. Tenancy Act was wrongly  instituted.  Neither petitioner is Zamindar nor the U.P. Tenancy Act was applicable to the land in dispute on the date of institution of said Application.  He further urged that exemption claimed under the notification under Section 2(1)(c) of the U.P. Zamindari Abolition & Land Reforms Act is not available to the petitioner in view of admitted fact that land in dispute was not in actual possession of the Aligarh Muslim University and the Respondents are occupancy tenants/Hereditary tenants and are still in actual possession and acquired Bhumidhari rights.  He further urged that notification dated 1st July, 1952 did not protect petitioner's right  in view of the fact that neither in land in dispute any construction of any building of Educational Institution existed nor it was being used for instructions of the Educational Institution.  It was further urged that the impugned orders were rightly passed by the authorities below as petitioner had no right, title or interest to move such  Application under Section 163 of the U.P. Tenancy Act on the date of institution of Application in the year 1989..

Considered arguments of learned counsel for the parties and also perused the materials on record.

The finding of fact recorded by the last Court, i.e., Revisional court is that Zamindari was abolished on 1st July, 1952.   According to learned counsel for the petitioner, petitioner's right is protected under Section 2(1)(c) of the U.P. Zamindari Abolition & Land Reforms Act, 1950.  Section 2(1)(c) of the U.P. Zamindari Abolition & Land Reforms Act, 1950 is being quoted below for ready reference:-

"2(1) The State Government may by notification in the Gazette apply the whole or any provision of this Act to any of the following areas or estates, subject to such exceptions or modifications, not affecting the substance, as the circumstances of the case may may require-

x x x x x

(c ) Areas held and occupied for a public purpose or a work of public utility and declared as such by the State Government or acquired under the Land Acquisition Act, 1894 (1 of 1894), the United Provinces Land Acquisition (Rehabilitation of Refugees) Act, 1948 (U.P. Act XXVI of 1948), the United Provinces Acquisition of Property (Food Relief) Temporary Powers) Act, 1948 (U.P. Act XXXIX of 1948), or any other enactment other than this Act, relating to acquisition of land for a public purpose;"

It was further brought to the notice of the Court by the learned counsel for the petitioner that in exercise of power under Section 2(1)(c) of the U.P. Zamindari Abolition & Land Reforms Act, 1950, a notification was made on 1st July, 1952.  He relied upon Paragraph-4 of the notification, the same is being quoted below:-

"In exercise of the power conferred under clause (c ) of sub-section (1) of Section 2 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951, the Governor is hereby pleased to declare that the areas

x x x x

(4)held or acquired by educational institutions for purposes of instruction or building

are areas held or acquired for a public purpose or a work of public utility."

On the arguments of learned counsel for the parties, this Court is going to consider the first question whether the provisions of Section 2(1)(c) of the U.P. Zamindari Abolition & Land Reforms Act and notification dated 1st July, 1952 relied upon by the learned counsel for the petitioner gives any protection to Aligarh Muslim University-petitioner.

Paragraph-1 of the Application instituted under Section 163 of the U.P. Tenancy Act clearly mentions that petitioner is a Zamindar and Respondents are Occupancy Tenants/Hereditary Tenants and are in actual, physical and cultivatory possession of the land in dispute.  The cause of action for instituting Application under Section 163 of the U.P. Tenancy Act was that the Respondents have not paid the land revenue, hence they are liable to be ejected with further prayer of recovery of balance amount of land revenue.  There is nothing in the Application under Section 163 of the U.P. Tenancy Act that land in dispute was acquired or held by Aligarh Muslim University for the purposes of instruction of education or constructing building of the Educational Institution. To the contrary the pleading of the petitioner was that the petitioner is a Zamindar and Respondents are Occupancy Tenants/Hereditary Tenants and land in dispute had in actual use for agricultural purposes by Respondents.

The materials on record also does not make out a case that the land was ever acquired for the construction of building or for instruction of education or even a single inch of the land in dispute was used for construction of building or instruction of any educational course. In such a situation, the arguments of learned counsel for the petitioner that the petitioner is entitled to get protection under Section 2(1(c) of the U.P. Zamindari Abolition & Land Reforms Act and notification dated 1st July, 1962, referred to above, cannot be accepted.

The finding of fact makes it clear that Zamindari was abolished on 1st July, 1952 and necessary consequences followed and  rights of Zamindars had came to an end.  

Even if assuming, without admitting, that the land in dispute was ever acquired for the purposes of instruction of education and construction of building for Educational Institution and notification dated 1st July, 1952 applies, but petitioner had no right to move Application on the date of Institution of Application under Section 163 of the U.P. Tenancy Act as whatever protection available to a person or a Body as an Educational Institution on 1st July, 1952 was already withdrawn by the notification dated 15th October, 1986, the same is being quoted below:-

"No.90/1-1(20)-76-Rajaswa-1

Dated Lucknow, October 15, 1986

"Whereas the areas held or acquired by educational institutions for purposes of instruction or buildings were, by clause (4) of Revenue (A) Department notification no. 4093/1-A-450-1951 dated, July 1, 1952, declared by the Governor under clause (c)of sub-section(1) of section 2 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act no. 1 of 1951) (hereinafter referred to as the said Act) to be areas held or occupied for a public purpose or a work of public utility (hereinafter referred to as the said areas) and were, as such exempted from the operation of the said Act :

AND WHEREAS the Governor is, further, satisfied that it will not be in the public interest to allow continuance of the said exemption in respect of the said areas of the State covered by the said notification of July 1, 1952,

NOW, THEREFORE,  in exercise of the powers under sub-section (3) of section 1, read with sub-section (1) of Section 2 of the said Act, and section 21 of the Uttar Pradesh General Clauses Act, 1904 ( U.P. Act no.1 of 1904), the Governor is pleased to appoint October 15, 1986, as the date on, and with effect from which the said Act shall come into force in the said areas."

By another  notification of the same date, all the such estates vested in the State, the same is being quoted below:-

"No.90(i)/1-1(20)-76-Rajaswa-1

Dated Lucknow, October 15, 1986

In exercise of powers, under sub-section (1) of section 4 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951) the Governor is pleased, to declare that as from the fifteenth day of October, 1986 all estates comprised in areas to which the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act no. 1 of 1951) have been applied by notification no. 90/1-1(20)-76-Rajaswa-, Dated Lucknow, October 15, 1986 shall vest in the State of Uttar Pradesh as from the date beginning of that date all such estates shall stand transferred to and vest in the State free from all encumbrances except as provided in the said Act."

It is clear from the materials on record that petitioner has instituted Applications under Section 163 of the U.P. Tenancy Act only on 8.10.1989.  On that date petitioner had no subsisting right at all even if assuming that any protection was available to petitioner by notification dated 1st July, 1952 issued under Section 2(1)(c) of the U.P. Zamindari Abolition and Land Reforms Act and as such petitioner has no right, title or interest in the land in dispute.  Applications instituted by the petitioner under Section 163 of the U.P. Tenancy Act were rightly dismissed by all the authorities below.

In view of the discussions made above, no ground is made out for interference in the impugned orders.  Accordingly, writ petitions are dismissed.

No order as to cost..

14.3.2007

bgs/-


Copyright

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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