R. M. Sahai, J. - (1.) CAN a public authority dispossess a person in occupation of government land without having recourse to law is the short question for consideration in this petition for a writ of Mandamus or direction to opposite parties not to interfere with petitioner's possession.
(2.) LAW appears to be fairly unanimous that one of the shades of rule of law is that the law applies with even hand both to State and its subjects. Therefore, it has to be examined if the claim of opposite parties that since petitioner is in unauthorised occupation of the land in dispute he has no right to resist construction of an approach road through his land is well founded in law. Although when the petition was filed facts were not clear and, therefore, divergence was more than what it is now after filing of supplementary affidavits and reply thereto. What appears established, however, is that plot no. 171/2/2, part of government land, was let out to petitioner in December, 1949 by Collector, Allahabad as Manager, Court of Wards. Whether this was in accordance with law and whether it is this very plot which has now become 171/5 are aspects on which parties have joined issues. Prior to adverting to the legality of the lease and its effect it appears appropriate to thrash out the factual controversy if plot no. 171/5 through which opposite parties propose to take the approach road to the second bridge which is being constructed over river Ganges near the old curzon bridge is the same plot which was numbered as 171/2/2 in 1959 and was leased out to petitioner by Collector, Allahabad as if the identity of plot is not established then the controversy would shift from conferment or creation of rights to dispossession only in accordance with law. Identity of an agricultural plot under Land Revenue Record Manual is determined either by revenue records and comparative chart (Fard Mutaqbat) prepared at time of Survey or in absence of these from circumstances namely, the location of plot, its area, rent, years etc. Since no survey was done of area in dispute no comparative chart was prepared. Therefore, the identity has to be determined from circumstances. From extract of Khewat of 1320F, the proprietory register, equivalent to 1912-13 it is apparent that government was proprietor of 596 bighas 14 biswas, out of which nearly 353 bighas was shown in Patti no. 1 belonging to State Government and the remaining in Patti no. 2 of Railway. Same position continued in 1356F and 1359F that is, 1940 and 1952 respectively except that Patti no. 2 which was shown with Railways is shown as government Nazul under management of Railways. In these revenue extracts the land is further shown as yielding rent. In other words it was let out to tenants. The sams position continued after abolition of Zamindari as entries in Khatauni extracts of 1361 to 1363F are reiteration of entries in 1356F and 1359F. In 1358F that is 1949, plot no. 171/2/2 area seven bighas was let out to petitioner on rent of Rs. 42/- and the period shown is two years. In 1363F the same entry continues except the period which is shown as seven years. In 1364F the plot number is shown as 171/3 but the period shown is eight years. The area and rent remain the same. From area, rent and period of tenancy coupled with absence of petitioner's name over any other area of plot no. 171 establishes that petitioner continued to be tenant of same land the number of which was changed from 171/2/2 to 171/3. In the Khasra extract of 1356F the petitioner is shown as tenant of seven bighas of plot no. 171/5. And in khatauni of 1386F, that is 1979 the period of tenancy of plot no. 171/5 seven bighas is shown as 29 years with Rs. 42/- as rent. In absence of any material it has to be assumed that the plot underwent renumbering once again and it was changed to 171/5 as from rent receipts filed it appears undisputed the rent remained more or less the same. It is thus established that plot no. 171/5 through which the opposite parties propose to take the approach road is the same plot which was let out to petitioner in 1358F the number of which was 171/2/2. It is further supported by report of Tehsildar dated 26th June, 1986. On application of petitioner that plot no. 171/2/2 let out to him has been changed as 171/5 the Tehsildar endorsed that sub-plot was changed from 2/2 to 5 on basis of spot verification in accordance with Land Records Manual. Coming to the question of law it was urged by learned Additional Chief Standing Counsel that u/Sec. 30 of Court of Wards Act no lease could be granted for more than seven years. Consequently the lease in favour of petitioner came to an end by efflux of time and since Government Grants Act apply to the land in dispute the principle of holding over was not available. Reliance was placed on Gurbux Singh v. Harnam Singh, AIR 1933 Oudh 134, Gaya Prasad v. Secretary of State, AIR 1939 Alld. Janendra Nath v. Yadu Nath, AIR 1938 Cal. 211. It was further urged that since it was government grant land, no hereditary rights could accrue in favour of petitioner. In the alternative the learned counsel submitted that mere entry in revenue papers or issue of rent receipts could not establish tenancy unless the petitioner could establish that there was a contract of tenancy between government and him. It was also urged that lease in favour of petitioner was in contravention of paragraphs 247 and 248 of the Court of Wards Manual Further it being not on stamp paper nor being registered it was not admissible in evidence. None of the submissions appear to have any merit. Copy of the lease deed is on record. The Qabuliat executed in pursuance of it under Form 56 of the Manual has also been filed. What right accrued to petitioner on this lease and continuance in possession for all these years need not be adjudicated upon but the entry of petitioners name in revenue records coupled with payment of rent leaves no room for doubt that petitioner entered into possession over the land in dispute in pursuance of the lease executed by Collector. It cannot, therefore, be said that petitioner's possession in its inception was contrary to the provisions of law or he was unauthorised occupant. Nor did it become unauthorise once the period for which the lease could be executed expired. The only remedy after expiry of time was that government could resume it but if the government chose not to exercise the right then it has to be assumed that it permitted petitioner to continue. The intention of the government further finds support from acceptance of rent even after seven years. The learned Additional Chief Standing Counsel may be right in his submission that since Crowns Grants Act applied to the land in dispute, therefore, the Tenancy Act or Transfer of Property Act did not apply. But it does not assist the opposite party in its claim that it could dispossess petitioner without taking recourse to law. Rights under Crown Grants Act or Government Grant Act are determined according to their tenor under Section 3 of the Act. Since the lease was granted for agricultural purposes on payment of rent which was accepted even after expiry of seven years it is obvious that nature of grant did not change. What right accrued to petitioner in consequence of it is not necessary to be decided but there can be no doubt that opposite parties were labouring under misapprehension both of law and fact when they decided to take the approach road on assumption that since it was government land it was not necessary for them to take any proceeding. Even the decisions relied by learned Additional Chief Standing Counsel lay down that if having regard to the terms of grant it was neither permanent nor transferable then the government could resume it. But resumption presupposes proceeding in accordance with law and not by show of force of authority.
(3.) AS regards paragraphs 247 and 248 of Courts of Wards Manual the objection of learned counsel appears to be without any substance. Copy of Qabuliat required to be executed under 248 if Settlement of vacant land under 247 was sanctioned has been filed by petitioner. It is in form no. 56. It bears the signatures of petitioner and Manager Court of Wards. Therefore, it satisfied the requirements as provided. The inference if any could be drawn from it in favour of petitioner and not against him. The learned counsel also produced a register maintained by Government Estate Office containing entries of Pattas between 1929 and 1953 and urged that since petitioner's name was not entered! in it the inference was irresistable that no lease was executed in his favour. Extract of it relating to village in dispute has been filed as well. The very heading of the register indicates that it is a register of land of government Estate given for construction of building or for other special work. It is not a register of agricultural lease. Every entry in it indicates that land was given for construction of house. The learned Additional Chief Standing Counsel could not point out even one entry relating to agricultural lease. Even if the register would have been a register of agricultural leases it could not have been of any help to opposite party in view of lease, the Qabuliat entry in revenue records, payment of rent, and above all possession. Nor non registration or non stamping of the lease are not very relevant. Whether registration of lease the rent of which was below Rs. 100/- was valid need not be gone into as even in absence of registration or stamping the document could be relied to establish possession. Even assuming that petitioner was in unauthorised occupation as the lease executed in his favour suffered from various infirmities, the question is could the government or opposite parties dispossess him without taking recourse to law. In a society the idealism of which is the rule of law a public body cannot be permitted to take recourse to force in violation of law of the land which is applicable uniformally not only to a citizen but to State as well. Since it is admitted that opposite parties have not taken any proceedings either under Land Acquisition Act or requisition Act or under any other law the action of constructing approach road through the land of petitioner cannot be upheld.;