BHAIYA AJEET SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner has invoked the writ jurisdiction of this Court by alleging that the Urban Area Zamindari has been abolished in 12 acres of agricultural land situate within the Municipal limits of the city of Ballia and the rest of the land being 268 acres within the said limit is Non -ZA and there ­fore, the State respondents cannot in ­terfere in the rights of the petitioner and other Zamindars in the Non -ZA areas. He has filed this writ petition also for the benefit of other Zamindars. The petitioner alleges that he is Lambardar and co - sharer with other Zamindars. The Nagar Palika, Ballia was constituted under Section 3 of the U.P. Municipality Act, 1916 and the entire land of the vil ­lages Middhi and Bishunipur was in ­cluded within the Municipal limits in the year 1916. The Zamindars are recorded in the khewat No. 3 and 5 of the year 1409F to 1412F. An agreement dated 23 -1 -1885 was executed in favour of the ancestors of the petitioner by the erstwhile Zamindars. The petitioner was, therefore, entitled to collect rent, licence fee or 'Sayar' under the provisions of the U.P. Tenancy Act, 1939. He, therefore, made an application dated 18 - 10 -2001 before the Sub -Divisional Magistrate, Ballia to issue receipt book to the Zamindars for realization of licence fee 'Sayar' etc. and the same were got printed and were duly issued by the Tahsildar Ballia. The petitioner and other Zamindars are col ­lecting the same and depositing the land revenue regularly. The U.P. Urban Areas Zamindari Abolition Act, 1956 came into force and after survey under Sections 3 and 4 only an area of 12 acres land was demarcated as agricul ­tural land within the municipal limits of Ballia which comprised of villages Mid ­dhi and Bishunipur. A notification dated 6 -5 -1972 under Section 8 of the Act was issued vesting such agricultural areas, as demarcated, in the State of U.P. free from ail encumbrances. Upon issue of the notification certain licensees of the Zamindaras started claiming themselves to be owners of the land of which they were licensees although they had no transferable rights underlie U.P. Tenan ­cy Act, 1939, or under any other law and began transferring the land by registered sale deeds and the Revenue Department mutated their names in the records of rights. Consequently, the petitioner made an application dated 19 -10 -2001 to the Additional District Magistrate, Ballia to hold an enquiry regarding such illegal mutations being made on the basis of sale deeds ex ­ecuted by mere licensees of the Zamin ­dars. An inquiry was ordered wherein the Tahsildar, Ballia submitted that there was no notification relating to Zamindari Abolition in Urban Area of Ballia Municipality in his office. The Sub -Divisional Officer, Sikandarpur gave his report dated 10 -6 -2002 and found that Urban Area Zamindari has not been abolished and that the petitioner is Zamindar. He however recorded that the Zamindar had no rights ovei markets etc. and a report for the said purpose be obtained from Nagar Palika Parishad, Ballia. The Additional District Magistrate (F/R) Ballia gave his report dated 2 -12 -2003 finding no merits in the application of the petitioner and found the same as liable to be rejected for the reasons stated therein. It has further been averred that the State Govern ­ment has issued various Government orders relating to grant of freehold rights over nazul property and some of the licensees of the zamindars have ap ­plied for grant of the same which has been granted by the State Government. The petitioner, therefore, moved an ao -plication dated 3 -10 -2003 before the Collector, Ballia requesting him to abide by the orders passed by the Hon'ble Supreme Court of India in S.L.'R No. 1557/98, State of U.P v. Satya Narain Kapoor, however, no orders have been passed by the Collector, Ballia. It has been averred that there is no nazul property in village Middhi and Bishunipur within the municipal limits of Bollia and the petitioner and other zamindars still hold propriety rights as zamindars over 268 acres of land therein. Therefore, the respondents by aforesaid actions are illegally depriving the petitioner and his co -sharers of their property in contravention of law and their rights under Article 300 -A of the Constitution of India.

(2.) A counter -affidavit has been filed by the District Magistrate, Baliia. It has been stated that the petitioner has an absolute remedy of filing a civil suit for declaration of his rights and the reliefs claimed in the writ petition are not main ­tainable. The writ petition has been filed for the benefit of the Zamindars but none of the parameters of Public Inter ­est Litigation are involved. It has been denied that the petitioner was ever ap ­pointed as Lambardar and also that the petitioner was ever recorded as a zarnindar in the revenue records, it is stated that the waiibu -arz relied upon by the petitioner has no relevancy for the purpose of adjudication of the con ­troversy raised in this writ petition. The Zamindari of agricultural area of the two villages was abolished by the notifica ­tion dated 6 -5 -1972 and the Non -Z.A. land was either In the control, owner ­ship and management of the Municipality Board or its private owners having their houses and a pertinent land. It has been stated that the receipt, book issued by the Tahsildar was illegal and a press memorandum dated 27 -8 -2003 has already been issued cancell ­ing the same. Connivance and con ­spiracy between certain Revenue Department officials and the petitioner has been alleged and the departmental and criminal proceedings are to be in ­itiated against them. The petitioner has failed to produce any records regarding the description of the property for which relief is sought and such a claim made after 29 years of the notification under Section 8 of the Act is highly belated particularly when there is no evidence that the petitioner was ever appointed as Lambardar or was a zamindar. It is stated that 'Mahal' would include any land which is occupied by construction of houses etc. and land a pertinent thereto in Urban areas and for which no rent is payable and therefore, the provisions of U.P. Tenancy Act and U.P Land Revenue Act would not be ap ­plicable. It has specifically beer, stated that no khewat has been prepared for the two villages since the abolition of Urban Area Zammdari in Baliia and the petitioner in collusion with the Naib Tah ­sildar, Baliia got the mutation made in the old khewats. The Naib Tahsildar has no authority or jurisdiction to pass an order for mutation in the khewat after expiry of a long period from the death of a person. In the old khewats the names of dead persons still exist and no muta ­tion has been made regarding those dead persons, but only the petitioner, his brothers and mother's names have been mutated. The petitioner is not entitled to realize rent etc. or to manage the land as a zamindar or Lambardar since the abolition of Zamindari on 6 -5 -1972.

(3.) IN the rejoinder affidavit the petitioner has reiterated that the petitioner and other Zamindars con ­tinue to be owners of Non -Z.A. land which has not been demarcated as agricultural land under the Act. The order dated 2 -12 -2003 has been said to have been passed for political motives. No records relating to demarcation of land have been produced by the State hence an adverse inference ought to be drawn. The petitioner being Lambardar as well as co -sharer and owner of Non -Z.A. land can represent the interest of his co -sharers under law. Reliance has been placed on the revenue entries in khasra and khewat relating to the year 1409F to 1412F, 1405 F to 1406F and 1290 -91F. It is reiterated that the notification dated 6 -5 -1972 related only to the demarcated area as agricultural land whereas this writ petition relates to non -Zamindari abolition area. Mere in ­clusion of an area in the Municipal limit does not vest the land, houses, markets etc. in the Municipality and it does not divest the owners of their rights or title to the land. The allegations of connivance with revenue department officials has been denied and the right to realize licence fee or 'Sayar' under the U.P. Tenancy Act has been reiterated. The land of the Zamindars is being wrongly treated as 'Nazul' land and the authorities are illegally conferring free hold rights on the licensees of the petitioner and other Zamindars. The land of the petitioner has never vested with the Nagar Palika and, therefore, the local body has no authority to collect tehbazari of private markets.