Ahsan vs State of U.P.

Dr. D.Y. Chandrachud, C.J. and Dilip Gupta, J.—In these proceedings, the petitioners seek a mandamus directing the District Magistrate, the Sub Divisional Magistrate and the Registrar of MJB Ruhelkhand University, Bareilly, who are impleaded as the second, third and fourth respondents, to handover actual possession of Plot No. 374 admeasuring 0.111 hectares situated in village Nawada Jogiya, Tehsil and District Pilibhit to the petitioners and to refrain them from obstructing the construction of a boundary wall over that plot The petitioners also seek a direction to the Sub Divisional Magistrate, Sadar to provide police force for the construction of a boundary wall on the land in respect of which the petitioners claim interest. The case of the petitioners is that land admeasuring 2790 sq. meters was acquired for which compensation was paid, leaving in balance a holding of 0.111 hectare un-acquired. According to the petitioners, their names have been recorded as tenure holders on 25 January 2012. There was a boundary dispute between the petitioners and the fourth respondent, for whose benefit the acquisition had taken place. According to the petitioners, a demarcation was carried out on two occasions, the first in May, 2010 and the second in March, 2012. In consequence, the boundaries were fixed in the demarcation proceedings u/s 41 of the U.P. Land Revenue Act, 1901. The petitioners now seek a direction that possession should be handed over to them and the second, third and fourth respondents should be restrained from obstructing the construction of the boundary wall.

In order to consider whether relief of this nature can be granted, it will be appropriate to refer to section 41 of the U.P. Land Revenue Act, 1901, which provides as follows:

Settlement of boundary disputes,--(1) All disputes regarding boundaries shall be decided as far as possible on the basis of existing survey maps, but if this is not possible, the boundaries shall be fixed on the basis of actual possession.

(2) If, in the course of an inquiry into a dispute under this section, the Collector is unable to satisfy himself as to which party is in possession, or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupants of the property within a period of three months previous to the commencement of the inquiry, the Collector --

(a) In the first case, shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession;

(b) in the second case, shall put the person so dispossessed in possession, and shall then fix the boundary accordingly.

Under sub-section (1) of section 41, disputes regarding boundaries have to be decided on the basis of existing survey maps insofar as possible and if it is not possible, on the basis of actual possession. Under sub-section (2) of section 41, two eventualities are contemplated: first, where the Collector is unable to satisfy himself as to which party is in possession, and the second, if it is shown to the Collector that a party has obtained wrongful possession by dispossessing the lawful occupants within a period of three months prior to the commencement of the inquiry. In the first situation, a summary inquiry is envisaged in respect to the person best entitled to the property and the Collector is empowered to put such person in possession and then fix the boundary. The inquiry u/s 41 is evidently summary in nature. As a matter of fact, that is why section 40A stipulates that an order passed u/s 41 shall not bar a suit in a competent Court for relief on the basis of a right in a holding. Hence, it is not incumbent for the Collector in every case to direct, upon a summary inquiry, dispossession or the placement of a party in possession. Where a party asserts a right in a holding, even after demarcation u/s 40, it is not debarred from filing a substantive suit in a Civil Court to establish such a right.

The petitioners essentially have a grievance that the fourth respondent is obstructing them from the construction of a boundary wall. In these proceedings, the petitioners have not annexed, either the notification u/s 4 or the declaration u/s 6 of the Land Acquisition Act, 1894. Hence, it is not possible for this Court, even prima facie, to determine the claim of the petitioners. Even otherwise, the writ jurisdiction under Article 226 of the Constitution would not be the appropriate remedy to determine a claim of a right in a holding, particularly having regard to the provisions of section 40A. The petitioners have an efficacious remedy which is available by way of a substantive civil suit based on title in which a claim for injunctive relief can also be addressed. The mere fact that a demarcation has been carried out by the Collector, would not, by itself, establish a right in a holding. By its very nature, the exercise of power by the Collector is of a summary nature and cannot determine or establish substantive rights in a land holding. Hence, in this view of the matter, it would not be appropriate for this Court to either make any determination in respect to the interest which is claimed by the petitioners or, for that matter, direct the Collector to summarily dispossess the fourth respondent, or issue an order of injunction restraining the fourth respondent from obstructing the construction of the boundary wall. The issue as to whether the boundary wall is sought to be constructed in respect of that part of the holding in which the petitioners have a right, as claimed, cannot be determined in these proceedings.

For these reasons, we leave it open to the petitioners and relegate them to move the Civil Court for appropriate relief, particularly having regard to the provisions of section 40A, in which a consequential and ancillary relief can also be claimed. The petition is, accordingly, disposed of. There shall be no order as to costs.