Munna Lal Mittal vs Board of Revenue

Ram Surat Ram (Maurya), J.—Heard Sri K.D. Tripathi, for the petitioner and Sri B.D. Mandhyan, Senior Advocate, assisted by Sri Satish Mandhyan, for the contesting respondents. This writ petition has been filed against the orders of Additional Commissioner dated 31.7.2002 allowing the revision of Kishi Utpadan Mandi Samiti, U.P. and setting aside the order of Additional City Magistrate dated 7.9.1998 and Board of Revenue, U.P. dated 10.11.2003, dismissing the revision of the petitioner, arising out of proceedings u/s 33/39 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act).

The dispute is in respect of plots 133 (area 2-1-0 bigha) and 134 (area 0-13-15 bigha) of village and tahsil Khairagarh, district Agra. Krishi Utpadan Mandi Samiti, U.P. (respondent-3) (hereinafter referred to as the respondent) filed an application (registered as Case No. 2 of 1999) u/s 33/39 of the Act, for recording its name over the land in dispute and deleting the name of the petitioner from it. It was stated by the respondent that the land in dispute was acquired by State of U.P. on the requisition of the respondent under the previsions of Land Acquisition Act, 1894. Notification u/s 4 was published on 9.1.1980, invoking the provisions of section 17(4), inquiry of section 5A was dispensed with. Notification u/s 6 was published on 10.1.1980, authorizing the Collector Agra to take possession over the acquired land. In pursuance thereof possession over the acquired land, including the land in dispute was taken on 9.7.1982. Notification u/s 6 was challenged by some tenure holders, including the petitioner in writ petitions before High Court, which were dismissed on 17.1.1983 and SLP filed by them were also dismissed on 6.4.1984. After taking possession over the land in dispute, it vested in State of U.P. free from all encumbrances u/s 17(1) of Land Acquisition Act, 1894. The case was contested by the petitioner on the ground that by an order dated 27.3.1995, passed u/s 143 of U.P. Act No. 1 of 1951, declaring the land in dispute as abadi as such Revenue Court has no jurisdiction to pass any order in respect of the land in dispute as it is no more ''land'' as defined under the Act. The petitioner filed a civil suit (registered as O.S. No. 297 of 1984), which was decreed by Additional Civil Judge, Agra by judgment dated 12.12.1990 and Civil Appeal No. 27 of 1991 filed by the respondents from the aforesaid decree has been dismissed by judgment dated 9.11.1995. These judgments have become final. The petitioner is in possession over the land in dispute as such his name cannot be deleted.

The case was decided by Additional City Magistrate, Agra, who by order dated 30.10.1999 held that the name of the petitioner was recorded over the land in dispute by order dated 12.12.1991. Thereafter the land in dispute was declared as abadi by order dated 27.3.1995 u/s 143 of U.P. Act No. 1 of 1951. From the evidence on record, possession of the petitioner over the land in dispute was proved. Civil Court also found that the petitioner was in possession over the land in dispute since 1978. Such an entry cannot be corrected, in exercise of powers u/s 33/39 of the Act. On these findings the application of the respondent was dismissed by order dated 30.10.1999.

The respondent filed a revision (registered as Revision No. 1775 of 1999) from the aforesaid order. The revision was heard by Additional Commissioner, who by order dated 31.7.2002 held that the land in dispute was acquired by notification u/s 4 dated 9.1.1980 and notification u/s 6 dated 10.1.1980. The Collector took possession over the acquired land on 9.7.1982. Acquisition of the land in dispute has been upheld by Supreme Court by order dated 6.4.1984. The order passed u/s 143 of U.P. Act No. 1 of 1951 has been challenged in revision and has not become final. Civil Court merely directed that the petitioner would not be dispossessed except in accordance with law. The Consolidation Officer, by order dated 12.12.1991, mutated the name of the petitioner over it, on the basis of decree of Civil Court. Thereafter by the notification u/s 6 of U.P. Consolidation of Holdings Act, 1953, the consolidation in the village has been cancelled. As the land in dispute was already vested in State of U.P. as such the name of the petitioner cannot be recorded over it in the revenue records. On these findings the revision was allowed and order of Additional City Magistrate dated 30.10.1999 was set aside and the name of the petitioner was directed to be deleted from the revenue records and the name of the respondents was directed to be recorded over it. The petitioner filed a revision (registered as Revision No. 6 of 2002-03) before Board of Revenue U.P., from the aforesaid order. Board of Revenue U.P. by order dated 10.11.2013 dismissed the revision. Hence this writ petition has been filed with the delay of 8 years 99 days

The Counsel for the petitioner submitted that Board of Revenue U.P. dismissed the revision, by a cryptic order without considering the various grounds raised in the revision. For deciding the proceedings u/s 33/39 of U.P. Land Revenue Act, 1901, possession is the basis but no findings has been recorded in respect of the possession over the land in dispute. Additional City Magistrate as well as Civil Court found that the petitioner was in possession of the land in dispute, this finding was not reversed. In the proceedings under Land Acquisition Act, 1894, actual possession on the spot was not taken as such the petitioners through out remained in possession over it. The name of the petitioner was recorded by the order of Consolidation Officer, on the basis of judgments of Civil Court as such entry cannot be deleted in the proceeding u/s 33/39 of the Act.

I have considered the arguments of Counsels for the parties and examined the record. Admittedly, the land in dispute was acquired by State of U.P. on the requisition of the respondent under the provisions of Land Acquisition Act, 1894. Notification u/s 4 was published on 9.1.1980, invoking the provisions of section 17(4), inquiry of section 5A was dispensed with. Notification u/s 6 was published on 10.1.1980, authorizing the Collector Agra to take possession over the acquired land. In pursuance thereof possession over the acquired land, including the land in dispute was taken on 9.7.1982. After taking possession over the Land in dispute, it vested in State of U.P. free from all encumbrances u/s 17(1) of Land Acquisition Act, 1894. Notification u/s 6 was challenged by some tenure holders, including the petitioner in writ petitions before High Court, which were dismissed on 17.1.1983 and Special Leave Petitions filed by them were also dismissed on 6.4.1984. Before Supreme Court the petitioner gave up his claim in respect of plot 134. It has been consistently held by Supreme Court that Land Acquisition Act, 1894 is a complete Code and by necessary implication jurisdiction of Civil Court is excluded. See State of Mizoram Vs. Biakchhawna, , State of Bihar Vs. Dhirendra Kumar and others, Laxmi Chand and others Vs. Gram Panchayat, Kararia and others, S.P. Subraminiyam Shetti v. Karnataka State Road Transport Corporation 1999 (90) RD 368 (SC), Commissioner, Bangalore Development Authority Vs. K.S. Narayan, and Monohar Joshi v. State of Maharashtra (2012) 3 SCC 619.

Thus in view of the aforesaid judgments, Civil Court has no jurisdiction to grant injunction to the petitioner, after the acquisition having been approved by Supreme Court. Issue relating to possession is also barred by res-judicata in view of Explanation IV to section 11 C.P.C. The petitioner cannot raise this issue after judgment of Supreme Court, as this issue ought to have been raised by the petitioner in the previous writ petition or before the Supreme Court. The petitioner cannot be permitted to say that he remained in possession over the land in dispute and the report of Collector for taking possession is incorrect. Otherwise also Civil Court merely granted injunction in terms that the petitioner shall not be dispossessed except in accordance of law. Dispossession of the petitioner according the provisions of Land Acquisition Act, 1894, does not violate the Civil Court decree.

Additional Commissioner found that after acquisition of the land, the name of the petitioner was recorded by Consolidation Officer, by order dated 12.12.1991, on the basis of decree of Civil Court. Thereafter by the notification u/s 6 of U.P. Consolidation of Holdings Act, 1953, the consolidation in the village has been cancelled. The order of Consolidation Officer was not final and cannot be given effect to. As the land in dispute was already vested in State of U.P. as such the name of the petitioner cannot be recorded in the revenue records. Such an entry is unauthorized entry and can be corrected in exercise of powers u/s 33/39 of the Act. In any case, the petitioner has no right over the land in dispute. Even if, after taking possession by the Collector on 9.7.1982, the petitioner re-occupied the land in dispute, his possession is a possession of rank trespasser and cannot be regarded for the purposes of the proceedings under the Act, as after amendment of section 210 of U.P. Act No. 1 of 1951, no title can be claimed over State land on the basis of possession. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.