PARASH NATH AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) We have heard Sri V.C. Mishra, learned senior advocate assisted by Sri Vivek Mishra advocate for the petitioners and Sri Madan Mohan appearing for respondent No. 2. Respondents Nos 1 and 3 are represented through learned Standing Counsel.

(2.) Brief facts giving rise to the instant writ petition are that plot nos 22, 23, 24, 25, 26, 27 and 28 of village Civil Station, Tehsil and District Basti situate in Katra Grihsthan, Basti were taken on lease by Sri Laxmi Narayan, father of the petitioners on 22.2.1918 for a period of 90 years which was to be renewed after every 30 years. The lease continued in the name of Laxmi Narayan till he died on 11.11.1979. Prior to his death, he had applied for renewal of the lease which was expiring on 22.2.1978. After the death of Laxmi Narayan, his wife Smt. Krishna Kumari, mother of the petitioners was substituted in place of her deceased husband and the lease was renewed vide Government Order dated 18.3.1985 in her name w.e.f. 22.2.1978 for a period of 30 years. The lease period according to the petitioners was to an end on 18.2.2008. The land has been described to be Nazul land and copies of renewal granted for the lease and Government Order of renewal dated 18.7.1985 have been filed as Annexures-10 to 12-A to the writ petition. That on 16.5.1980, the officers/servants of Respondent No. 2 came to the petitioners' land and threatened to cut trees standing on the land in dispute. To this the petitioners put resistance and an FIR was lodged against the petitioners at Police Station Kotwali, District Basti by Assistant Engineer, Avas Evem Vikas Parishad. In the criminal case, the petitioners after contest were acquitted by the judgment dated 20.8.1983. The petitioners have further stated that Smt. Krishna Kumari, mother of the petitioners filed Original Suit No. 234 of 1980 in the court of Civil Judge, Basti challenging the validity of notifications under Sections 28 and 32 of the U.P. Avas Evem Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as Adhiniyam 1965) and Section 17 of the Land Acquisition Act. The suit was dismissed vide judgment and decree dated 13.9.1990 of Civil Judge, Basti. Aggrieved from the judgment and decree, an appeal was preferred which was registered as Civil Appeal No. 47 of 1990 wherein the petitioners were substituted as appellants in place of the deceased mother Smt Krishna Kumari. The Additional District Judge, Basti vide his judgment and decree dated 31.3.2006 dismissed the appeal also holding that civil suit was not maintainable and as such the appeal was also not tenable. Copies of the judgment of the Trial Court and Appellate Court have been filed as Annexures-6 and 7 to the writ petition. It has also been stated on behalf of the petitioners that both the courts had granted interim injunction restraining the respondents from cutting the trees or dispossessing the petitioners from the disputed land. These orders lasted till the disposal of the civil appeal. The petitioners have further contended that despite restraint orders, Respondent No. 2 willfully and in flagrant violation of the orders of the court, constructed a road on certain portions of plot nos. 27 and 28 situate in village Civil Lines/Civil Station, Katra Grihsthan, Basti. The petitioners after judgment of the Appellate Court wanted to prefer second appeal in the High Court but their counsel advised against it as the judgment of the court below was in his opinion sound and no suit challenging the validity of the land acquisition notification was maintainable. In this view of the matter, writ petition has been filed.

(3.) Further contentions of the petitioners is that it is to be adjudicated whether the Nazul land owned by the State Government can be acquired by U.P. Avas Evam Vikas Parishad invoking the provisions of Sections 28 and 32 of U.P. Avas Evam Vikas Parishad Adhiniyam and Section 17 (as amended in Land Acquisition Act). The application of Section 45 of the Adhiniyam 1965 in case of transfer of land by the State Government to U.P. Avas Evam Vikas Parishad for the purpose of scheme or management etc. have also to be looked into. The petitioners have further stated that the land in dispute was Nazul land on the date when the notifications under Sections 28 and 32 of Adhiniyam 1965 and Section 17 of the Land Acquisition Act were issued and could not have been transferred to the Board under Section 43 and the entire proceeding with regard to the Land Acquisition Act are illegal and as such not sustainable. The petitioners have also stated that the provisions of Chapter VI of Adhiniyam 1965 and the constitution of the Tribunal under Section 64 and transfer of pending cases to the Tribunal under Section 65 and the finality of decision of Tribunal under Section 66 etc. have not been complied with. The petitioners have stated that the area of the total land leased out to them of plot nos. 22 to 28 is 4 Bighas 11 Biswas out of which approximately 1 Bigha 10 Biswas land has been acquired and out of the acquired land only a road has been constructed and the vacant land of this portion also is in actual physical possession of the petitioners and the trees of the petitioners are standing over it. The dispute is confined only to portions of plot nos. 26, 27 and 28. The petitioners have prayed that notification dated 31.7.1972 under Section 28 of Adhiniyam 1965, Annexure 1, notification dated 27.6.1978 under Section 32 Adhiniyam 1965, Annexure 2 and notification dated 29.1.1979 under Section 17 of the Land Acquisition Act, Annexure 3 be quashed. Further mandate has been sought against respondents directing them not to interfere in the possession and use of the disputed land situate in parts of plots no. 26, 27 and 28.