Rajes Kumar, J. - (1.) BY means of the present writ petition, the petitioners are claiming the following reliefs : "(i) Issue an appropriate writ, order or direction in the nature of mandamus commanding the respondents not to dispossess the petitioners from the Khewat/plot Nos. 2136 and 2149 situated within the jurisdiction of Nagar Palika Parishad, Pilakhua, Ghaziabad except the part of plot No. 2149 comprising area 3410 hectare, which was earlier acquired by the State Government by issuing notifications under Section 4 on 24.11.2005 and under Section 6 on 23.6.2006. (ii) Issue an appropriate writ, order or direction in the nature of mandamus restraining the respondent authorities from interfering in the peaceful possession of the petitioners over Khewat/plot Nos. 2136 and 2149 situated within the jurisdiction of Nagar Palika Parishad, Pilakhua, Ghaziabad except the part of plot No. 2149 comprising area 3410 hectare. (iii) Issue an appropriate writ, order or direction in the nature of mandamus commanding the respondent authorities to identify and demarcate the area, which was covered under the Notifications issued under Section 4 of the Land Acquisition Act on 24.11.2005 and under Section 6 of the Land Acquisition Act on 23.6.2006 and thereafter proceed in accordance with law. (iv) Issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (v) Award the cost of the writ petition throughout to the petitioners against the respondents. (vi) Issue a writ, order or direction in the nature of certiorari thereby calling the entire record of the proceedings and action taken by the respondents with regard to the demolition of the standing structure and unit of M/s. Swatantra Bharat Paper Mills on the land under khasra Nos. 2136, 2149M and 2111/2 of village Pilakhua, Hapur and the process of alleged resumption of the subject land and thereafter quash the impugned order of resumption No. 3980/231/ 07-08 dated 20.9.2008 passed by the Commissioner, Meerut Division, Meerut with respect to the resumption of land of the petitioner falling under khasra Nos. 2136 and 2149M under village Pilakhua within the Municipal Limit Pilakhua. (vii) Issue a writ, order or direction in the nature of mandamus thereby commanding the respondents to freeze all the amounts of the compensation/ value of the land received in lieu of the said land under resumption and acquisition including the land of the petitioner and not to disburse the same till the disposal of the present writ petition. (viii) Issue a writ, order or direction in the nature of mandamus thereby commanding and directing the respondents not to allow any activity on the subject land of the petitioner covered under the present writ petition and further to submit the inventory list of the assets removed under demolition and to account for the same."
(2.) BRIEF facts of the case giving rise to the present writ petition are as follows : 1. The petitioner No. 1 is private limited company incorporated under the Indian Companies Act, 1956 of which petitioner No. 2 is the Director (both the petitioners hereinafter called as "petitioners'). The petitioners are claiming the ownership and possession over plot Nos. 2136, 2149 and 2111 situated at village Pilakhua, Hapur district Ghaziabad on the basis of the registered sale deed dated 7.10.1953 which was duly executed, presented and finally registered on 14.10.1953, on which as per sale deed, a paper mill was constructed by the vendors in the year, 1951 mainly on plot Nos. 2136 and 2149 and boundary wall and godown were constructed on plot No. 2111. Details of the standing structure, fitting and fixtures of machines are in the sale deed which is Annexure-1 to the writ petition. The total area of the aforesaid plots were 8 bighas and 11 biswas. 2. The sale deed shows that vendors, namely, Lala Jagan Nath, Lala Amar Nath and Lala Magan Nath all sons of late Lala Gokal Chand purchased the aforesaid plots from Mrs. R. H. Crosbite resident of village Mussooree Pargana Dasna, Tehsil Ghaziabad district Meerut by sale deed dated 14th day of December, 1950 and registered as document 1762 in Book No. 1, Volume No. 795 on pages 260 to 263 on 21st day of December, 1950. It is the case of the petitioners that manufacturing of paper and board continued till the year, 1988 and on account of loss the same was closed. It appears that Hapur Pilakhua Development Authority, Hapur (hereinafter referred to as "Authority"), respondent No. 3 has prepared Pilakhua Master Plan, 2001-2021, which is Annexure-2 to the writ petition. The petitioners contended that in the said plan on the plot in dispute the construction of paper mill has been shown. It appears that the Central Government intended to establish a Textile Centers across the country and for this purpose Pilakhua has been identified as one of the site. In consequence thereof, a Notification under Section 4 (1) of the Land Acquisition Act was issued by the respondent No. 1 on 24.11.2005 and subsequently, Notification under Section 6 of the Land Acquisition Act was issued on 23.6.2006. Under the notification a part of the land belonging to the petitioners' company, which was situated in khasra No. 2149 having an area of 0.3410 hectare was acquired. The petitioners challenged the said acquisition in Writ Petition No. 37893 of 2006 which was dismissed by the Division Bench of this Court on 13.8.2008. The said order of this Court has become final. The case of the petitioners are that although only 0.3410 hectare land of khasra No. 2149 had only been acquired by the State Government, the authorities have started demolition of the entire construction standing over plot Nos. 2136 and 2149 and intended to take the possession and when the authorities have not considered the grievance of the petitioners, present writ petition has been filed. It appears that in exercise of powers under Section 117 of the U. P. Zamindari Abolition and Land Reforms Act, Commissioner, Meerut Division, Meerut vide impugned order of resumption No. 3980/231/07-08 dated 20.9.2008 has resumed the land of the petitioners falling under khasra Nos. 2136 and 2149 of village Pilakhua treating the said land in possession of Gaon Sabha.
(3.) IT appears that since there was a small construction in the form of boundary wall and a godown in plot No. 2111, petitioners were apprehended by the respondents to dispossess from the said plot, the petitioners filed suit for declaration as Original Suit No. 179 of 1973 under Section 229B of the Zamindari Abolition and Land Reforms Act, claiming the title and ownership over the said plot. The declaration of the ownership was sought on the ground that the petitioners had purchased the paper mill consisting of building, plant, machinery and land of plot Nos. 2136, 2149 and 2111/2 area about 8 bighas, 11 biswas from its previous owners Jagan Nath, Magan Nath and Amar Nath vide sale deed dated 7.10.1953. IT was contended that the building of the factory was erected and necessary machinery were installed in the year, 1950-51 and the aforesaid factory building was being in existence on the spot since then. The main building of the factory was on plot Nos. 2149, 2136 and plot No. 2111/2 was kept open by the owners for being used as a godown for the paper mill, for stocking scrap meant for paper pulp, and for drying the products as well as for placing other materials, meant for loading or which were unloaded from the Railway wagons. To facilitate, a room was constructed in or about the center of the plot and also constructed a boundary wall inasmuch as the said plot was enclosed by the boundary wall and had also a room, it vested in the predecessor in interest of the plaintiff under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as "Act"). The said plot was not lying banjar or otherwise and was covered by the building at the time of enforcement of the said Act. Even otherwise the said plot was used as appurtenant to the main factory building for the purposes connected with the factory and as such it had vested with the owners thereof under Section 9 of the Act. In any case the plaintiff had been in exclusive possession thereof and has become absolute owner of the same by adverse possession since the year, 1950. The defendants have no concern whatsoever with the ownership or possession of the said plot. By some mistake the said plot was entered as banjar in the revenue record. The said entry is incorrect. The defendants were approached to correct the said entry but they paid no need. The defendants under pressure of some persons inimical to the plaintiff have started making claim to the said plot and to interfere with the plaintiff's possession for which they are not entitled. 3. Defendant No. 1, was the State of Uttar Pradesh and defendant No. 2, was Municipal Board, Pilakhua contested the case on the following grounds referred in the order itself as follows : "The defendant No. 1 has contested the suit on the ground that the plaintiff is neither the owner nor in possession of the plot in suit. The plot Nos. 2149, 2136 and 2111/2 were banjar at the time of the commencement of the U.P.Z.A. and L.R. Act and on the abolition of Zamindari, they have vested in the State of U. P. and then in the Gaon Sabha concerned and the plaintiff's possession over the plot Nos. 2149 and 2136 is illegal and steps are being taken to remove the same. IT is further pleaded that the suit is undervalued and the court fees paid is insufficient that the suit should have been filed in a revenue Court, that it is barred by Section 34 of the Specific Relief Act. That the notice served under Section 80, C.P.C. is in valid, that the sale deed relied upon by the plaintiff is farzi. Defendant No. 2 has raised plea identical to those of defendant No. 1 and as such it would be unnecessary to repeat them. IT is also pleaded that on abolition of the Zamindari on the land in suit vested in the State of U. P. and then in defendant No. 2, that the paper mill or any building thereof did not exist in the land in suit in the year, 1950-51, Jagan Nath, Magan Nath and Amar Nath were not entitled to sell the same and the alleged sale deed is fraudulent and farzi. IT is also pleaded that the area of plot No. 2111/2 is 7 bighas, 2 biswas and the same is banjar. IT is not clear from the plaint as to about which portion the suit has been filed. In the absence of any demarcation the suit is not maintainable." 4. On the aforesaid pleadings, eight issues were framed, Issue No. 3 was whether the plaintiff is owner in possession of the plot in suit. By order dated 3.8.1976 the said suit was decreed and it has been declared that the plaintiff is the owner and in possession of the plot in khasra No. 2111/2 situated in town of Pilakhua and marked by red lines in the plaint map. The plaint map shall form part of the decree. 5. Some of the relevant findings which has a material bearing in present case are as follows : "On consideration of the entire evidence on record, I am inclined to believe that the plaintiff is the owner of the land in suit and the kotha and the boundary walls on the land in suit were raised by the owners of the papers Mill, Ext. 14 is the copy of the sale deed dated 18.12.1950 executed on behalf of Smt. R. H. Crosbite in favour of Lala Jagan Nath in respect of plot Nos. 2136, 2111 and 2149. The sale deed goes to indicate that the vendor was owner of the said plots. Nothing contrary to it has been shown in the evidence of the parties. This sale deed had come into existence before the abolition of Zamindari. That being so the zamindar was entitled to transfer the land in suit. IT appears that the purchasers had constructed a paper Mill and had started their business under the name and style of Seth Gosal Chand Paper and Board Mill. The documents on record go to indicate that the said Mill had purchased building materials and other articles in the year 1951, Exts. 18 to 21, 23, 25 to 27 and 29 to 35 are certain receipts and invoices to show that the said Mill had purchased articles through ghose documents in the year 1951, Ext. 22 is a letter dated 17.7.1951 from the Provincial Iron and Steel Controller allotting 65 tons of cement to the said Mills, Ext. 24 dated 26.7.1951 is an authorization for cement by the Regional Honorary Cement Advisor to the said Mills. Ext. 36 dated 5.2.1951 is the letter from the Provincial Iron and Steel Controller rebasing cement to the said Mills. All these documents land strength to the plaintiffs version that the paper Mill was construct in the year, 1951. Ext. 37 is a letter dated 17.5.1951 from the Chief Inspector of Boilers fixing 23.5.1951 for the inspection of the premises of the Mill. This document also goes to show that the Mill had come into existence by the said date. Ext. 38 is a certificate from the Chief Inspector of Boilers permitting the paper mill to run the Boiler for the period 4.10.1952 to 3.10.1953. This comment also goes to indicate that the mill had started production by the year, 1952. Ext. 8 is a letter dated 7.6.1952 from the Chief Inspector of Factories indicating the in- accuracies in the area calculated by the paper mill. However, this letter goes to indicate that the paper mill had already been constructed by that time. Ext. 17 is a letter issued in the month of September, 1952 by the Chief Inspector of Boilers fixing 4.10.1952 for inspection of the premises of the mill. In view of the foregoing reasons, I am inclined to believe that the building of the paper mill had been constructed in the year, 1951. No evidence to the contrary has been left by the defendants. In the other hand Kalyan Singh, D.W. 1 is unable to state as to from which year the mill was constructed. IT is admitted that the main building of the paper mill stands on plot Nos. 2136 and 2149. A public road intervene the said building and the disputed plot. Dharam Prakash P.W. 1 has stated that a map of the main building was submitted by the paper mill to the Inspector of factories. The plot in suit was not included in that map. IT has, therefore, been argued on behalf of the defendants that the land in suit was lying banjar and that no constructions had been made by the plaintiff on the same. I am not inclined to accept this argument. I am, therefore, inclined to believe that the boundary walls had been raised over the land in suit by Lala Jagan Nath and others, who were the predecessors in title of the plaintiff. I am, therefore, inclined to believe that the kotha over the land in suit was not built by predecessor in title of the plaintiff and the same has been built by the plaintiff. I am inclined to believe that the land in suit is being used by the plaintiff mill and as such the said land is appurtenant to the building of the factory. Learned counsel for the defendants has invited my attention towards the revenue record. Ext. A2 is extract of khasra relating to the years 1359F. In this khasra the plot in suit has been recorded as usar. Ext. A-3 to A-11 are the extracts of khasra relating to the years 1367F to 1375F. In all those extracts the plot in suit has been recorded as usar. Ext. A-1 is the extract of khatauni relating to the years 1372F to 1376F. In this extract also the plot in suit has been recorded as usar. The defendant have also filed a C.H. Form No. 5B. In this document also the disputed plot has been recorded as usar. On the basis of these entries it has been argued on behalf of the defendant that the land in suit was lying barren on the abolition of zamindari and as such it had vested in the State of U. P. and subsequently in the Municipal Board. No notification has been filed to show that the land in suit as actually vested in the Municipal Board. The revenue entries relied upon by the defendants, in my opinion, are of little consequence because it has been found that the predecessor in title of the plaintiff had purchased the land in suit before the abolition of zamindari and had bounded the same by raising the boundary walls. The boundary walls had been raised with a view to use disputed land for the purposes of the Mill. Therefore, the entry of usar in the revenue records is of no assistance to the defendants. IT would be proper to mention here that the plot Nos. 2136 and 2149 also continued to be recorded as usar although the plaintiff mills have come into existence on those plots since long. IT would also be proper to mention here that the plot in suit was left out of consolidation operations. This fact is borne out from paper No. 114C by the plaintiff. For the reasons stated above, I find that the plaintiff is the owner in possession of the plot in suit. The issue is decided in the affirmative." The aforesaid judgment and order of the Additional Civil Judge was challenged by the State Government before the Additional District Judge, Ghaziabad in Appeal No. 406 of 1976. The said appeal has been dismissed vide order dated 19.11.1996. Nagar Palika Parishad, Pilakhua, Ghaziabad filed Second Appeal No. 973 of 1999 against the order of Additional District Judge before this Court, which has been dismissed vide order dated 5.10.2007. This Court observed as follows : "In view of the aforesaid decisions, it has to be held that the land contained in plot No. 2111/2, which was surrounded by a boundary wall and had a constructed room, was a land appurtenant and, therefore, did not vest in the State or the Gaon Sabha. In fact, it vested under Section 9 of the Act in the predecessor-in-interest of the plaintiff. There is, therefore, no infirmity in the finding recorded by the courts below." ;