- (1.) BY this petition, the petitioners have sought relief of certiorari for quashing the notice dated 7-6- 1989 purporting to be under Rule 115-C and Rule 115-D of U. P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as 'the Rules') contained in Annexure-1 and report of Tehsildar respondent No. 2 dated 24-5-1989 contained in Annexure- 14 and order dated 20-6-1989 passed by respondent No. 1 contained in Annexure-15 respectively to the writ petition and further relief in the nature of mandamus directing the respondents not to give effect the impugned order and not to make Amal Daramad in revenue records on the basis of impugned orders and not to change the nature of land in dispute, have also been sought for. BY notice dated 7-8-1989 contained in Annexure-1 of the writ petition the Tehsildar/assistant Collector, Tehsil Kairana District Muzaffarnagar has asked the petitioners to vacate the land in question belonging to Gaon Sabha and handover possession of it to the Gaon Sabha and vide report dated 24-5-1989 contained in Annexure-14 of the writ petition submitted by the Tehsildar in the Court of Sub-Divisional Officer, Kairana in case No. 2/88-89, State v. Surajbhan, it appears that recommendation has been made with regard to respondents No. 3 to 45 to give benefit of Section 123 (1) of the U. P. Z. A. and L. R. Act, 1950 (hereinafter referred to as 'the Act'), whose names were mentioned in Form P. A. 24. Vide impugned order dated 20-6-1989 the Sub Divisional Officer has directed that on the basis of possession on 30th June, 1985 the names of the aforesaid persons may be recorded in the revenue records.
(2.) THE facts of the case in brief are that the plot in dispute namely plot No. 2362 (area 1 bigha 14 biswas) situate in Qasba Shamli, District Muzaffarnagar lies within the limits of Municipality, Shamli. One Khajan Singh claimed himself to be land holder of said plot. However, there was lis between State of Uttar Pradesh and Khajan Singh. A notice purporting to be under Rule 115-C and Rule 115-D of the Rules was issued by the Tehsildar, Kairana way back on 17th June, 1960. By means of the aforesaid notice it was claimed that the land in dispute belonged to the then Gaon Samaj and Khajan Singh was asked to remove his constructions and handover possession of the land to the Gaon Sabha, or else appear in the Court on 18th July, 1960. Khajan Singh gave reply to the said notice claiming that he has been cultivating the land in dispute since 1358 fasli. He claimed that since before 1359 fasli he has become Sirdar of land in dispute. THE Tehsildar, Kairana on being satisfied with the contention raised by late Khajan Singh discharged the notice and directed the file to be consigned. A copy of the notice dated 17th June, 1960 and order dated 31st July, 1960 passed by the Tehsildar are on record as Annexures-1 and 2 to the writ petition. However, yet another notice was issued once again purporting to be under Rule 115-C of the Rules by Sub-Divisional Officer, Kairana some times in March, 1962. This notice related to the land in dispute and contained more or less same facts as were stated in previous notice. A true copy of the said notice is on record as Annexure-3 of the writ petition. Khajan Singh filed objection before Sub-Divisional Officer and vide order dated 30th June, 1962 the Sub-Divisional Officer held that proceeding cannot go since no notification as required by Section 117 of the Act had been published, he, therefore, directed the file to be consigned. A true copy of the order dated 30th June, 1962 is on record as Annexure-4 of the writ petition. THEreafter proceeding for eviction of Khajan Singh had been initiated under Section 4 of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 but the said notice was also discharged and possession of Khajan Singh was found as Sirdar. THE State did not prefer any appeal against the aforesaid order. It is stated in writ petition that in pursuance of the aforesaid judgment the revenue records were rectified and name of Vaish Degree College, Shamli was struck off from the records but on account of some mischief the name of the State was again mutated, therefore, late Khajan Singh filed a suit under Section 229-B of the Act for declaration of his right over the land in dispute. The suit was initially dismissed by Sub-Divisional Officer, Kairana vide order dated 14th August, 1968 but ultimately appeal No. 580 of 1968 filed by said Khajan Singh before Additional Commissioner, Meerut was allowed and suit was decreed vide order dated 30th January, 1971. Thereafter Vaish Degree College, Shamli went up in second appeal before the Board of Revenue, which too had been dismissed. A copy of judgment of Additional Commissioner, Meerut dated 30th January, 1971 is on record as Annexure-5 of the writ petition. The result of the aforesaid litigation was that the names of both the State of Uttar Pradesh and Vaish Degree College, Shamli were struck off from the records, thereafter the name of Khajan Singh came to be mutated in the revenue records. It is also stated in the writ petition that after aforesaid series of litigations were over, the State Government by means of notice dated 6th July, 1976 divested the Nagar Palika, Shamli from ownership of the land in dispute. Since the same was in the ownership of Late Khajan Singh, it is stated that during the pendency of appeal before the Board of Revenue taking advantage of emergency proclamation in the country certain persons belonging to the scheduled castes took forcible possession of the land in dispute. They also raised temporary hutments over it. Later on Khajan Singh became Bhumidhar with transferable right. His name was entered as such in the revenue records by the order of Sub-Divisional Magistrate dated 18th May, 1979. After the death of Khajan Singh, in his place the names of his grandsons namely Sri Ajendra and Akshay were mutated by the order of Supervisor Kanoongo, Shamli dated 25th June, 1988. The petitioners purchased the land in dispute through registered sale-deed dated 10th June, 1984 executed by Ajendra and Akshay, thereafter they also, as abundant caution, obtained declaration under Section 143 of the Act that the land had ceased to be agricultural holding. A true copy of the aforesaid certificate dated 11th October, 1984 is on record as Annexure 7 of the writ petition. Thereafter petitioners instituted three suits namely suit No. 547 of 1986, 548/1986 and 683 of 1986 in the Civil Court. The first two suits are against the illegal occupants who are the members of scheduled castes, the last suit was instituted against the Municipal Board, Shamli which too was asserting hostile title in respect of the land in dispute. The suits were instituted in the Court of Civil Judge for possession of land in dispute. The plaints of aforesaid three suits are on record as Annexures- 8, 9 and 10 respectively to the writ petition.
(3.) IT is further stated in the writ petition that despite the land in dispute falls within Municipal limit of Nagar Palika, Shamli and the provisions of the Act are not applicable to it, the District Authorities which had been nourishing grudge against Late Khajan Singh and consequently against the petitioners were also sympathetic towards members of scheduled castes issued a notice under Section 123 of the Act asking the petitioners to show cause as to why the possession of persons mentioned in the accompanying Form PA-24 be not regularised. A copy of the aforesaid notice is on record as Annexure- 11 of the writ petition. The petitioners gave elaborate reply to the said show cause notice on 4th July, 1988. A copy of the reply of petitioners is on record as Annexure-12 of the writ petition. The petitioner has also challenged the notice in the writ petition earlier filed by them, which was disposed off finally on 3-11- 1988 with a direction to the respondent No. 2 to dispose of the objections filed by the petitioners. The Tehsildar has submitted a report on 24-5-1989 to the effect that land may be settled with respondents No. 3 to 45 under Section 123 of the Act. The report of the Tehsildar is cryptic. He has not considered the legal aspect nor has recorded any finding in this respect. A true copy of the report dated 24-5-1989 is on record as Annexure-14 of the writ petition. On a receipt of the report of Tehsildar, the respondent No. 1 has passed the impugned order dated 20-6-1989 to the effect that mutation of names of contesting respondents No. 3 to 45 may be made in revenue records on the basis of possession prior to 30th June, 1985, a certified copy of the impugned order is on record as Annexure-15 to the writ petition. The submissions of learned Counsel for the petitioner in nut- shell are that since the land in dispute being within the Municipal limit of Nagar Palika Parishad Shamli, therefore, the provisions of the Act are not applicable to it. Secondly, the land in dispute being not in the nature of the land described under Section 122-C (2) of the Act, therefore, the Tehsildar, Kairana had absolutely no authority under law to issue impugned notice. Thirdly, even assuming that land in dispute is such to which provisions of the Act are applicable, the predecessor-in- interest of the petitioners having been obtained the declaration under Section 229-B of the Act in respect of the land in dispute and the petitioners having been obtained a declaration under Section 143 of the Act, the respondents have absolutely no authority under law to settle the land under Section 123 of the Act in favour of contesting respondents No. 3 to 45. Thus, the entire proceedings are illegal, void and non-est and fourthly, the binding judgment culminating in appeal to the Board of Revenue and discharge of previous notices under Rule 115-C of the Rules ought to have been taken note of and could not be ignored by the respondents while passing the impugned order. Lastly, the suit regarding possession being pending in Civil Court, the Tehsildar, Kairana respondent No. 2 has no authority under law to recommend regularisation of possession of respondents No. 3 to 45 in respect of land in dispute and thus to frustrate the suit.;