NAGAR NIGAM GHAZIABAD Vs. KAILASHWATI BHATIA

JUDGEMENT

(1.) Heard Shri Prem Chandra, learned counsel for the appellant, Shri A. K. Singh appears for the respondents including the newly added respondents vide Courts order dated 28.1.2009;

(2.) This appeal is directed against the judgment and decree dated 16.7.2005 passed by Additional Civil Judge (S.D.), Court No. 1, Ghaziabad in O.S. No. 738 of2001. It emerges from record that the plaintiffs-respondents i.e. Smt. Kailashwati Bhatiaw/o Late Sri Chaman Lai Bhatia had filed a suit No. 738 of 2001 seekinga declaration and injunction in the Trial Court. It was pleaded before the Trial Court that one late Shri Chaman Lal Bhatia son of Sardar Gopal Singh Bhatia was owner and landlord of plot Nos. 27/2/0-15-0,28/1-1-0,29/1-5-0,31/2/0-17-14 and 32/1-12-0 situate in village Arthala, Pargana Loni in District Ghaziabad. After the death of Late Sri Chaman Lal Bhatia his legal heirs/legal representatives i.e. six plaintiffs before the Trial Court became owners and landlords of the land in dispute. Earlier, there used to be a Pottery factory on the land, comprising constructions, sheds the land was surrounded by a pucca boundary wall. Earlier, this land was within the area of Gaon Sabha Arthala, Ghaziabad. Later on it was notified in the area of Nagar Nigam, Ghaziabad. During the lifetime of Late Shri Chaman Lai Bhatia, a confusion was created by the revenue authorities regarding title over the land in dispute. The revenue authorities started making interference in the peaceful possession of late Shri Chaman Lal Bhatia. Under the compelling circumstances, late Shri Chaman Lal Bhatia approached this Hon'ble Court by filing a writ in the year 1970 registered as w.p. No. 352 of 1970. The Court had rendered a judgment on 24.10.1973 allowing the writ petition. As a result thereof the State of U.P., District Magistrate Ghaziabad were restrained from interfering with the possession and enjoyment of the disputed property. The relevant observations and findings of this Hon'ble Court recorded in the judgment dated 24.10.1973 are quoted below: "M/S Standard Potteris Ltd. were owners of plot Nos. 27,28,29,31 and 32 in village Arthala, Pargana Loni, Tehsil Ghaziabad, district Meerut. They had enclosed the aforesaid plots by a boundary wall and bad constructed some houses, a well, chimney, and a brick klin and also installed machinery etc. for the manufacture of porcelain goods. M/S Standard Potteries subsequently mortgaged the land, as also the construction etc. to Rai Bahadur Ganga Prasad and certain other persons. Rai Bahadur Ganga Prasad filed suit No. 8 of 1948 against standard Potteries and this suit was decreed. Execution proceedings were, thereafter, started and the sale took place on 18.4.1953. The petitioner purchased the property at this auction, and the sale was confirmed on 15.3.1995. Asale certificate was issued in favour of the petitioner and possession was also delivered. The sale certificate and Dakhalnama have been filed as (AnnexureT and II' to the petition). They disclose, that the petitioner purchased four plots alongwith various constructions standing thereon. On the 29th December, 1969 a notification was issued under Section 117(4) of the U.P. Gaon Sabha of Plot Nos. 28 and 29. In the result of this notification was that these plots became vested with the State Government. Acting on the strength of this notification, the Special Land Acquisition Officer, respondent No. 2 to the petition and his subordinate staff started taking steps for possession of plot Nos. 28 and 29. The petitioner has filed the present petition challenging the aforesaid acts on behalf of the respondents, as also the notification dated 29th December 1969. Counsel for the petitioner has contended that in a such factory existed in the compound which comprised of plot Nos. 27, 28, 29, 31 and 32 and a brick-klin was being run on plot Nos. 29, the entire compound constituted a single unit and was appurtenant to the factory standing on the other plots, and as such on the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, the entire land stood settled with the Standard Potteris in view of Section 9 of that Act. This being so, the petitioner who purchased the property in an auction sale became the owner thereof, and as such even if the land in dispute could possibly be resumed by the State Government from the Gaon Sabha, the respondents cannot interfere with the possession of the petitioner. It has also been contended that no direction for vesting the land in dispute in the Gaon Sabha could have been issued under Section 117 of the Act by the State Government as the land had already been settled with the erstwhile owners by the State Government in accordance with the provision of Section 9 of the Act, and as such, the initial notification and the subsequent cancellation thereof are with out jurisdiction. Two counter-affidavits have been filed in the petitioner one on behalf of the Land Management Committee and other on behalf of the Special Land Acquisition Officer. The Land Management Committee and the Gaon Sabha have filed a joint counter-affidavit, but in a such as the petition has been dismissed as against the Land Management Committee, the counter-affidavit has to be taken to be one on behalf of the Gaon Sabha only. In paragraph 6 of the counter-affidavit filed by Ved Prakash Sharma on behalf of the Gaon Sabha the allegations contained in paragraphs 4 to 7 of the petition have not been denied for want of knowledge. In the counter-affidavit of B.R. Saxena filed on behalf of the Special Land Acquisition Officer in paragraph 6 it is stated that the deponent does not have any knowledge of the contents of paragraphs 4 to 7 of the petition. Paragraphs 4 to 7 of the writ petition contain recital of facts leading up to the purchase of land in dispute by the petitioner. In paragraph 9 of the counter-affidavit of Ved Prakash Sharma filed on behalf of the Gaon Sabha, it is stated that plot No. 28 is used as the compound of the Factory and a brick-klin was previously running on plot No. 29 land. It is also stated that the land is being used by the petitioner for the purpose of his factory. Similar averments are contained in paragraph 9 of the counter- affidavit of B.R. Saxena filed on behalf of the Special Land Acquisition Officer. In view of the sale certificate and the Dakhalnama and the averments contained in para-9 of the two counter-affidavit, it is clear that the area in question constitutes a single unit on which a number of buildings etc. enclosed by a boundary wall are standings. Inasmuch as the averments in paras 4 to 7 of the petition are not denied, it has to be held that these constructions were in existence before 1952 and the erstwhile owner had a valid title to the land and constructions standing thereon became settled with the erstwhile owners of the factory in view of Section 9 of the Act. The petitioner being an auction purchaser, therefore, got a valid title to the land and the building. Now, once this position is reached, the respondents cannot interfere with the possession of the petitioner, even if the land has vested in the State Government, for even though after the abolition of Zamindari, all land vested in the State of Uttar Pradesh under Section 6 of the Act, this does not entitle the state to interfere with the rights created under that Act itself. Section 9 of the Act settles land and the buildings with the person holding the land and building, and confers specific rights on the persons to continue in possession of the land and building so settled and this being so, the respondents had no jurisdiction to interfere with the possession of the petitioner. The notification, if any, which the State Government issued under Section 117 of the Act vesting the land in the Gaon Sabha settled with persons under Section 9 of the Act. Further, in as much as the land in dispute was an Abadi site, it could not have been directed to vest in the Gaon Sabha, as only such land as is defined in Section 3(14) of the Act can be directed to vest in the Gaon Sabha and Abadi Land fells outside the purview of such land. Thus, the initial notification under Section 117 and the impugned notification are clearly without jurisdiction. For all these reasons, the writ petition is allowed. The respondents are restrained from interfering with the possession and enjoyment of the petitioner . of plot Nos .28 and 298 in Village Arthala, Pargana Lone, Tehsil Ghaziabad, district Meerut. It is not necessary to quash the impugned notification (annexure-lll to the petition) as the petitioner's right can be adequately protected by the Mandamus that is being issued. The petitioner is entitled to his costs."

(3.) Shri Chaman Lal Bhatia had filed another writ petition in the year 1973 which was registered as w.p No. 7269 of 1973. A division Bench of this Court had rendered a judgment on 16.5.1983. The operative portion of this judgment is quoted below: