- (1.) ASHOK Bhushan, J. Heard Sri R. N. Singh, learned Senior Advocate, assisted by Sri Satish Rai, for the petitioners and Sri M. K. Gupta, learned Counsel for the contesting private respondents as well as learned Standing Counsel.
(2.) COUNTER and rejoinder affidavits have been exchanged between the parties and with the consent of learned Counsel for the parties, the writ petition is being finally decided. By this writ petition, the petitioners have prayed for quashing the judgment and order dated 20. 12. 2006, passed by the Chairman, Board of Revenue by which order the Board of Revenue decided case Nos. 77 to 91 and 313 and 314 which were with drawn and transferred to the Board of Revenue from the Court of Assistant Record Officer Sub Divisional Officer Ballia. The dispute raised in the writ petition has a checkered history of litigation. The writ petition arises out of record operation which were initiated by issue of notification under Section 48 of the U. P. Land Revenue Act, 1901 issued in the year 1973. Objections were filed before the Assistant Record Officer by the petitioners regarding record operation with regard to several villages included in the notification with the prayer that their names be recorded as Bhumidhar in the revenue records. The contesting respondents objected to their claim and claimed themselves to be in possession of the land in dispute. An application was filed by the petitioners before the Board of Revenue on 1. 11. 2004 praying for transfer of above cases from the Court of Assistant Record Officer. Allegations were made in the application against the Assistant Record Officer to the effect that he is unfairly proceeding and is in influence of political leaders and the petitioners did not expect justice from Assistant Record Officer. The Board of Revenue after hearing both the parties came to the conclusion that the case is very old early disposal of which is in the interest of both the parties hence, hearing may take place before the Board of Revenue itself and the records be summoned. The said order was passed on 8. 12. 2004. In consequence of the order dated 8. 12. 2004, the records were summoned. On 9. 9. 2005, the Board of Revenue passed an order fixing 10. 10. 2005 with the observation that if the applicants intend to lead any evidence they may do so. The Board of Revenue there-after by the impugned order dated 20. 12. 2006 decided the cases and declared the respondents as Bhumidhar. The claim of the petitioners was rejected which order has been challenged in the present writ petition. Before noticing the issues raised in the present writ petition, it is necessary to note the brief history of dispute and the earlier litigation between the parties. The petitioners' case is that the land in dispute was situated in Pargana Garha district Ghazipur and a survey was made after 1840. The Village Umarpur Diyara revenue survey No. 19 became part of district Shahabad, State of Bihar on account of change of deep stream of river Ganges. Again in settlement year 1981-82, larger part of village Umarpur Diyara became part of district Ghazipur and smaller part remains in district Shahabad, State of Bihar. A settlement is claimed to have taken place in the year 1907 between the ancestors of petitioners, the Zamindar of district Shahabad and Secretary of State in which the petitioners were held to be occupancy tenants of the land of Umarpur Diyara on payment of annual rent of Rs. 10,000/ -. Subsequently, a confirmation deed was executed again on 3. 9. 1919 between the Secretary of State Maharaja Keshav Prasad Singh proprietor of Dumaron estate and ancestors of the petitioners who were known as Narhi Babus. The petitioners' case is that in the confirmation deed, the petitioners were again accepted as tenants and by which deed settlement of 40 villages were made in which Secretary of State undertook to make payment with regard to 40 villages to Maharaja Dumaraon and the petitioners' ancestors accepted the payment of annual rent as earlier agreed. Due to change of deep stream as well as alluvial and dilluvial action of river Ganges, there was constant dispute of boundaries of State of U. P. and State of Bihar which in turn had been affecting the rights of tenure holders of the land. Government of India appointed Sri C. M. Trivedi as Arbitrator, who submitted a report in the year 1964 recommending a fixed boundary between two States. The report was accepted and Parliament passed an Act namely; The Bihar and Uttar Pradesh (Alternation of Boundaries) Act, 1968. Section 2-C of the Act defines deep stream and Section 2 (d) defines as fixed boundaries. Sections 2 (c) and 2 (d) are quoted as follows: "2 (c) "deep stream", in relation to the river Ganga or the river Ghaghra, means the deep stream thereof as verified and agreed upon by the State Governments of Bihar and Uttar Pradesh after the 30th day of September of the year preceding the year in which the appointed day falls and before the 1st day of January of the year in which the appointed day falls in default of agreement between the State Governments, as determined by such authority as may be specified by the Central Government;" "2 (d) "fixed boundary" means the boundary line demarcated under the provisions of sub-section (2) of Section 3 in relation to the river Ganga or the river Ghaghra, as the case may be;"
(3.) ACCORDING to Section 3 (2), the fixed boundary in relation to river Ganga was to be demarcated by authority appointed by the Central Government. As per schedule of 1968 Act, certain villages which fell between deep stream and fixed boundaries were transferred to the State of U. P. and certain villages were transferred from State of U. P. to State of Bihar. The land in dispute comprising in different villages is transferred territory from the State of Bihar to State of U. P. Record operations were held in the State of Bihar. Arising out of record operation started in the State of Bihar, an appeal was filed before the Commissioner, Patna, who transferred the appeal to the Commissioner Varanasi vide order dated 20. 6. 1971. The Commissioner Varanasi vide order ed 7. 8. 1978 abated the proceedings. In series of litigation arising through record and survey operation, the matter was decided by Commissioner Patna vide order dated 18. 6. 1985, in survey appeal No. 194 and 38 other appeals. The appeals filed by group represented by the petitioners were dismissed. Revision was filed before the Board of Revenue which was dismissed against which writ petition No. 7694 of 1989 was filed in the High Court of Judicature at Patna which writ petition was permitted to be withdrawn to enable the petitioners to move Allahabad High Court. The notification issued under Section 48 of the U. P. Land Revenue Act, 1901 was challenged by Shiv Poojan Rai and others in this Court in writ petition No. 49428 of 2005, regarding the villages mentioned at serial No. 31 to 40 of the notification ed 26. 7. 1973. It was claimed by the petitioners that those villages were nonexistent villages names of which had been supplied by the State of Bihar, where as the land pertaining to these villages actually fell within the limits of certain other villages having different names. The writ petition was decided by this Court on 1. 12. 2005 allowing the same in part. The objection which was filed by the petitioners before the Assistant Record Officer has been filed as Annexure-1 to the writ petition. Objection relates to village Mauja Umarpur Diyara No. 618. It was claimed in the objection that the land of 8 other villages was included in Mauja Umarpur Diyara No. 618 names of which villages were mentioned in paragraph 2 of the objections. After tracing the history of the earlier settlements and the litigation, it was mentioned in the objection that in proceedings under Section 145, Cr. P. C. , the land was attached and subsequently released in favour of the petitioners, against which order revision was filed which was dismissed by this Court. It was claimed that the name of the respondents who were recorded as Sikimidar over the plots, be expunged since they had never been in possession. It was further claimed that no survey was made during record operation and the papers which were sent from the State of Bihar did not depict the correct facts. It is further claimed by the petitioners that before the Board of Revenue, an application was filed on 4. 12. 2006 claiming that oral evidence of petitioners was not complete hence, the matter be sent to competent Court for taking evidence and thereafter the case be decided on merits. The respondents' case as disclosed in the counter affidavit filed by them, is that there is no error in the record operation. It is claimed that in the record prepared in the State of Bihar and in the record operation, the respondents were found in possession and they were recorded as Sikimidar and on the basis of possession they became Bhumidhar and no error has been committed by the Board of Revenue in declaring the respondents as Bhumidhar. Reliance on the order of Commissioner, Patna passed in appeal ed 18. 6. 1985 has been placed. Khatiyan prepared by the revenue officials of the State of Bihar has also been relied where the petitioners were recorded as Sikimidar. It is also contended that in survey conducted by survey officials, the petitioners were found in possession although in the Khatauni, the name of Haridwar Rai etc. has been mentioned as the tenants.;