B. L, Yadav, J. - (1.) -By the present petition under Article 226 of the Constitution, the petitioner has prayed for a writ of Certiorari quashing order dated 25-11-1980 passed by Sub-Divisional/Demarcation Officer (Annexure 12 to the petition) purporting to be order declaring the land in dispute to be agricultural area, whereas infact prior to that it has already been declared as non-agricultural area and those proceedings have become final.
(2.) THIS case appears to have a chequered history. The petitioners are infact grand sons of Lala Lakshminarain proprietor of village Meerapur, Mohalla Danda and Dariya, Distt. Hamirpur. The land in dispute was let out to the State of U. P. for the purposes of enhancing the elegance of the 'Kothi Narain Rao' in occupation of the Collector and District Magistrate, Hamirpur. The land in dispute was recorded as occupancy tenancy of 'Sarkar Kaiser-i-Hind Mutalike bangla Collector Sahib Bahadur' (vide Annexure 1 to the writ petition) in the khatauni for the last more than a century but it contained only few fruit bearing trees. In nature the land was 'Banjar' and 'Parti' except an insignificant portion which was cultivated sometime and was used as kitchen garden of the Collector. The U. P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (for short the Act) came into force with effect from 12-3-1957 and the land in dispute was demarcated under section 5 of the Act as agricultural area and the notification under section 8 of the Act was published indicating 1-7-1961 as the date of vesting of agricultural area in Hamirpur District. As the land in dispute was not an agricultural area as defined nor it was covered within the definition of agricultural area under section 2 (1) (a) (c) (iii) of the Act, the Board of Revenue detected the mistake to the effect that even the land in dispute was non- agricultural area but by an oversight or some mistake it has been demarcated as agricultural area and consequently stayed the implementation of the Gazette notification under section 8, Chapter 3 of the Act. A direction was issued by the Board of Revenue (vide notification no. 1892/9 demarcation 979 dated May 4, 1962, Annexure 2 to the writ petition) for correction of the mistake. Some other mistakes in other parts of the Distt. were aiso pointed out. The notices were given even to the petitioner as contemplated by section 4 (2) of the Act, in respect of demarcation of the land as non-agricultural area, but as it was basically non-agricultural area, therefore, no objection was filed by the petitioner under section 4 (3) of the Act and final demarcation was done by the Commissioner under section 5 of the Act, on the proposal of the Collector Hamirpur/Demarcation Officer. The records were consequently corrected after following the procedure prescribed. The mistakes have been pointed out in the relevant Khatauni to the effect that the land was earlier recorded as agricultural area and now it was being corrected as non-agricultural area (vide Annexure 4 to the petition). THIS proposed correction was dated 5-9-1964 and the Tehsildar reported the matter vide his order dated 7-9-64 to the District Land Reforms Officer, and the mistake was directed to be corrected regarding the land in dispute as non-agricultural area (Annexure 5 to the petition). Ultimately the Commissioner and the Board of Revenue were also informed. The demarcation khatauni was corrected and Chapter 3 of the Act was implemented and the notification in the Gazette was to be issued declaring the land in dispute as non-agricultural area. The State of U. P. began to raise pucca residential houses over some portion of the land in dispute after cutting green trees and thereby started changing nature of the land in violation of the conditions of the lease deed in favour of the State which subsisted. After serving notices under section 80 CPC and 111 (g) of Transfer of Property Act petitioner no. 1 filed Civil Suit no. 21 of 1972 and the rest of the petitioners filed suit no. 88 of 19 72 for ejectment of the State of U. P., demolition of constructions, damages for a sum of Rs. 612.50 P. including future damages to the tune of Rs. 36.75 P. as arrears of rent and Rs. 30/- as costs of notice. State of U. P. contested aforesaid suits raising preliminary objection about the pecuniary jurisdiction of the Munsif Magistrate and jurisdiction of the Civil Court but ultimately it was held that Munsif Magistrate has pecuniary jurisdiction and the Civil Court has jurisdiction. Against this order revisions filed before the District Judge were dismissed on 20-9-75. Thereafter two revisions were filed before this Court for deciding preliminary points which were also dismissed on 28-1-76. Ultimately the problem of pendency of the suit and consequently demolition of constructions and ejectment etc. were referred to the State Government and the matter was thrashed out at the Government level. However, after about 2 1/2 years State of U. P. filed written statement denying other plaint allegations and alleging that the State was occupancy tenant in pursuance of the lease deed and it has full rights to make constructions. It was also alleged that plots no. 6 and 9 were metalled roads which were constructed long ago and the State had acquired rights through adverse possession. It was further alleged that Civil Court has no jurisdiction by implication that the land jn dispute was agricultural land and the demarcation proceedings indicating the land to be non-agricultural were incorrect. Both the Civil Suits, however, were decreed by the decree and judgment dated 19-12-77 (Annexure 8 to the petition) and these decrees and judgments were maintained in the First Appeals and the Second Appeals filed against the same came up for hearing before one of us (Hon'ble R. M. Sahai, J.). These Second Appeals being Second Appeal Nos. 1747 and 1741 of 1980, State of U. P. v. Jagdish Saran Singhal were dismissed on merits on 28-5-1982 and the decision is reported in 1982 ALJ 1302.
(3.) THE facts in the second appeal have been precisely stated in para 5 at page 1304 of 1982 ALJ as follows : "What appears is that in 1957 after enforcement of the Act, land in dispute was demarcated as 'agricultural' area and a notification under section 8 was also published in Government Gazette on 1-7-1961. On 4th May, 1962 a letter No. 189/Demar/79 was issued from Secretary Board of Revenue to all District Magistrates of Kumaon and Uttar Kashi, Dehradun and Rampur on subject of 'correction of mistakes in the demarcation records of the Urban Areas in which vesting under section 8 UP ZA and LR Act has taken place with effect from July 1, 1961, pointing out as a result of scrutiny by District Officer themselves or by the officers of the Board mistakes were found to exist in the demarcated records of a large number of urban areas in the State.................. In pursuance of this letter the records appear to have been scrutinised and a proposal was made that the plots in dispute comprising of bungalow of Collector along with adjoining land which is in his compound and had been demarcated as agricultural area may be corrected and recorded as non-agricultural area. THE corrections as proposed were approved on 5-9-(sic). THEse endorsements are on the extract of khatauni which was admitted in evidence by lower appellate court. " On the aforesaid admitted facts it was tried to be urged strenuously on behalf of State of U. P. that the mistake of recording the land as agricultural land could not have been corrected under section 6 of the Act and as a consequence thereof the land could not have been recorded as non-agricultural area but this argument was repelled and the findings of the Courts below were upheld In this background we have to consider the controversy involved in the present petition. Learned counsel for the petitioner urged that impugned order dated 25-11-80 has been passed by Sub-Divisional/Demarcation Officer in violation of principles of natural justice and in substance it has been ordered that the land in dispute may be recorded again as agricultural area treating the declaration and correction of the mistake under section 6 of the Act to be erroneous. No opportunity at all was given to the petitioners before passing the impugned order nor the petitioners were served with any notice nor they heard. The intention of the legislature appears to be manifest keeping in view the language employed under sections 4 and 5 of the Act that without hearing the person aggrieved the demarcation of the land cannot be made from non-agricultural to agricultural area. It was further urged that in the second appeal it was urged on behalf of the State that the land in dispute was agricultural area and that rectification of mistake as non agricultural area under section 6 of the Act even though at the behest of the State of U. P. the Collector, Tehsildar and Kanungo was not accepted, hence that chapter was closed, it was not open to the respondents to pass the impugned order again demarcating the land in dispute as agricultural area, and treating the declaration as non-agricultural, to be a mistake apparent particularly when the petitioners were not informed.;