Allahabad High Court
Mohammad Saleem And 4 Others vs Union Of India And 4 Others on 16 May, 2023
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:105713-DB Court No. - 3 Case :- WRIT - C No. - 14710 of 2023 Petitioner :- Mohammad Saleem And 4 Others Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Shambhavi Nandan Counsel for Respondent :- A.S.G.I.,Pramod Kumar Singh Connected with Case :- WRIT - C No. - 14715 of 2023 Petitioner :- Naseem Khan Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Shambhavi Nandan Counsel for Respondent :- A.S.G.I.,C.G.S.C.,Purnendu Kumar Singh And Case :- WRIT - C No. - 14881 of 2023 Petitioner :- Reena Yadav Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Shambhavi Nandan Counsel for Respondent :- A.S.G.I.,C.S.C.,Purnendu Kumar Singh And Case :- WRIT - C No. - 14630 of 2023 Petitioner :- Anwar Husain Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Shambhavi Nandan Counsel for Respondent :- A.S.G.I.,C.S.C.,Purnendu Kumar Singh And Case :- WRIT - C No. - 16132 of 2018 Petitioner :- Suraj Prasad Gupta Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Lok Nath Shukla,Pramod Kumar Counsel for Respondent :- C.S.C.,Rajnish Kumar Rai,Shekhar Kumar Yadav Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri. Shambhavi Nandan in Writ C No. 14710 of 2023, Writ C No.14630 of 2023, Writ C No. 14715 of 2023, Writ C No. 14881 of 2023, Sri Loknath Shukla in Writ C No. 16132 of 2018, learned counsels for the petitioners and Sri S.P. Singh, learned Additional Solicitor General of India assisted by Sri Punendra Kumar Singh, Sri Pramod Kumar Singh, learned Central Government Standing Counsel for Union of India/ Railways and Sri Rajiv Gupta, learned Additional Chief Standing Counsel for State-respondents.
2. Learned counsels for the parties appearing in all the above writ petitions jointly state that controversy involved in all the writ petitions are similar and, therefore, all the writ petitions may be decided together and Writ C No. 14710 of 2023 may be treated as the leading writ petition. In view of the statement made by learned counsels for the parties, Writ C No. 14710 of 2023 is treated as leading writ petition and facts thereof are being noted below.
3. Briefly stated facts of the present case are that the petitioners claim that they have their house over Khasra plots No. 3, 4 and 9/1 Kila Kohana, Pargana- Dehat Amanat, Tehsil & District- Varanasi. They are aggrieved by the notice issued by Assistant Divisional Engineer, Northern Railway, Varanasi, requiring the petitioners to remove their illegal encroachments/constructions over the land in question by 15.04.2022. The aforesaid notice was followed by subsequent notices granting the petitioners further time to remove their illegal encroachments over the Railways land. Aggrieved, the petitioners have filed the present writ petition.
SUBMISSIONS
4) Learned Counsels for the petitioners submit as under:
i) The petitioners have their houses over the disputed land since long time. The names of their ancestors were recorded in the Khatauni of Fasli year 1356. Therefore, the petitioners have every right to occupy the land in question and the respondents cannot interfere with the occupation and possession of the land.
ii) Learned counsel for the petitioners of Writ C No. 16132 of 2018 additionally submits that Khasra Plot No. 9/1 area 0.157 Hectare is a Non-ZA land owned by Akhil Bhartiya Sarv Seva Sangh and against that land the name of the petitioner is recorded in column 8 as tenureholder with possessory rights. Therefore, the houses constructed over the land of Khasra plot No. 9/1 area 0.157 Hectares owned by Akhil Bhartiya Sarv Seva Sangh, is not the land of the Railways and, therefore, no interference can be made by the respondents in the house constructed over the said land.
5. Learned Additional Solicitor General and the learned Additional Chief Standing Counsel submits that the entire land is owned by Railways and merely there is abadi of Akhil Bhartiya Sarva Seva Sangh over an area of 0.004 hectare of Khasra Plot No. 9M. The rest of the land belongs to Railways. He, therefore, submits that the petitioners are encroachers over the Railway land and in view of the order of the Hon'ble Supreme Court dated 16.12.2021 in Special Leave Petition (Civil) Diary No. 19714 of 2021 (Utran Se Besthan Railway Jhopadpatti Vikas Mandal v. Government of India and Ors.), the impugned notices have been issued and encroachments are being removed. Attention is drawn to the aforesaid order of the Hon'ble Supreme Court filed as Annexure-5 to the Counter Affidavit on behalf of respondent nos. 1, 2, 3 & 4 in Writ C No. 14710 of 2023. He further submits that the name of Akhil Bhartiya Sarv Seva Sangh has been mutated in the revenue records on the basis of a forged deed and in that matter an objection has been filed before the Revenue Authority for such mutation in the name of Akhil Bhartiya Sarv Seva Sangh.
6. He further refers to Paragraph no. 7 of the counter affidavit in Writ C No. 14710 of 2023 and submits that an OS No. 639 of 2016 (Mohammad Saleem v. Union of India through General Manager, Northern Railway, Government of India) was filed by the petitioner, Mohammad Saleem and Ors, in the Court of Civil Judge (Sr. Division) Varanasi with prayer not to disposses him from Khasra plot Nos. 4 & 9 of Kila Kohna, Pargna- Dehat Amanat, Tehsil & District- Varanasi, and the said Suit was dismissed for non-prosecution on 26.05.2022.
7. He further submits that on the basis of an alleged sale deed dated 25.08.1945 relating to Khasra plot Nos. 8 & 9 of Kila Kohna, the purchaser Krishnamurti Foundation of India filed an application on 14.05.2015 i.e., after about 70 years under Section 34 of the U.P. Land Revenue Act, 1901, for mutation of their name in the court of Tehsildar (Judicial), Tehsil Sadar, District- Varanasi and after hearing the objections of the parties the aforesaid mutation application has been rejected by the Tehsildar by a detailed order dated 21.04.2018.
8. We have carefully considered the submissions of learned Counsels for the parties and perused the records of the writ petitions.
9. In Paragraph Nos. 4, 5, 6, 7, 8, 9, 10, 11 & 12 of the counter affidavit filed in Writ C No. 14710 of 2023, the respondent nos. 1 to 4 have stated as under:-
"4. That, before 1941, the plot no. 3, 4 & 9M the situated at Kila Kohna, Pargna- Dehat Amanat, Tehsil & District Varanasi, was defence land and in the year 1941, this land in dispute was transferred by Ministry of Defence to East Indian Railway, result of which from the date of transfer to till date, Railway has the ownership of this land in dispute. Thus, the petitioners have remotely no concern with the ownership of the land in dispute. The true copy the map of the land in dispute, signed by the competent authority of the both sides i.e. Military State Officer and concerned Railway Officer, is annexed herewith and marked as Annexure No. C.A.-1 to this Counter Affidavit.
5. That it is necessary point out here that in regard to the some plots including the land in dispute i.e. Plot No. 3, 4 & 9M situated at Kila Kohna, Pargna- Dehat Amanat, Tehsil & District Varanasi, a Joint Survey was conducted by the competent authority of Railway and Revenue Department. During the survey, it is found that these plots in dispute are belongs to Railways and also on the same plots, the Railways was in possession, result of which the Railway land was demarcated. The Joint Survey Report dated 06.12.1960 was submitted before the concerned Competent Authority. This Fact is also crystal clear from the perusal of the order dated 21.12.1960 passed by the learned court of Sub Divisional Officer, Varanasi (South), Varanasi.
Village Plot Not.
/Araji No. Area (Acers) Now recorded Kilakohna 1 2.99 State govt. Pro 2 .022 State govt. Pro 3 0.05 Rly.4
0.60 Rly.
50.01 Rly.
60.60 Rly.
71.34 Rly.
83.16 Rly.
912.12 Rly.
101.72 Rly.
110.02 Rly.
1211.48 Rly.
181.12 State govt. Pro Saritabad 19 1.08 State govt. Pro True and photocopy of the survey Report dated 06.12.1060 and the order dated 21.12.1960 passed by the learned court of Sub Divisional Officer, Varanasi (South), Varanasi, are annexed collectively herewith and marked as Annexure No. C.A.-2 to this Counter Affidavit.
6. That, the petitioners had knowledge about the legal position and possession of Railway in regards to the plots in dispute, but they intentionally and deliberately encroached on the plots in dispute. The Railway issued a list of persons who illegally encroached and occupied the land of railway, in which the name of petitioners are also mentioned as illegal occupier. The copy of the list of the persons who illegally encroached and occupied the land of railway, in which the name of petitioners are also mentioned as illegal occupier, is annexed herewith and marked as Annexure No. C.A.-3 to this Counter Affidavit.
7. That, it is necessary to point out here that the petitioner no.1 had filed a Civil Suit Bearing No. 639 of 2016, Mohammad Shaleem Son of Late Shamshul Hak Vs. Union of India through General Manager, North Railway, Government of India before the learned court of Civil Judge (Senior Division), Varanasi, with prayer, not to dispossess him from the Plot/ Arazi No. 4 & 9 situated at Kila Kohana, Rajghat, Pargana Dehat Amanat, District- Varanasi. An affidavit was also filed in support of this Civil Suit. It is also important to point out here that in this Civil Suit, a date was fixed as 26.05.2022, but after repeated call non was present at the time of hearing before the learned court below, result of which it was dismissed in non prosecution. True and photocopy of the plaint of Civil Suit 639 of 2016 and dismissal order dated 26.05.2022 passed by the learned court of Civil Judge (Senior Division), Varanasi, are annexed collectively herewith and marked as Annexure No. C.A.-4 to this Counter Affidavit.
8. That, it is also necessary to point out here that Hon'ble Apex Court in the case of Utaran se Besthan Railway Jhopadpatti Vikas mandal Vs. Government of India and others, has passed some directions on 16.12.2021 for removal of unauthorized structures and occupants from the railway land. The photocopy of the order dated 16.12.2021 passed by Hon'ble Apex Court is annexed herewith and marked as Annexure No. C.A.-5 to this Counter Affidavit.
9. That, it is also important to mention here that on the basis of a Sale Deed dated 25.08.1945 in pursuant to Arazi No. 8 & 9, situated at Kila Kohana, Rajghat, Pargana Dehat Amanat, District- Varanasi, the purchaser Krishnmurti foundation of India, Rajghat Fort, Varanasi submitted an application 14.05.2015, Under Section 34 of U.P. Land Revenue Act, 1901 for mutation before the learned court of Tehsildar (Judicial), Tehsil Sadar, District Varanasi. After hearing concerned parties, on 21.04.2018, Tehsildar (Judicial), Tehsil Sadar, District Varanasi, passed a detail order and rejected the application. submitted Under Section 34 of U.P. Land Revenue Act. 1901. Photocopy of the order dated 21.04.2018 passed by Tehsildar (Judicial), Tehsil Sadar, District Varanasi. is annexed herewith and marked as Annexure No. C.A.-6 to this Counter Affidavit.
10. That, on the basis of above mentioned directions of Hon'ble Apex Court, the Railway Board issued directions to all Zonal Railway to remove the unauthorized occupants and illegal structures as well as other encroachment from the railway land. In this regard for necessary action, a letter dated 28.12.2021 has been issued from the office of General Manager, North Railway Baroda House, New Delhi to Chief Secretary, Uttar Pradesh and also another letter dated 09.03.2022 was sent to Divisional Railway Manager, Lucknow. Photocopy of the letter dated 28.12.2021 issued from the office of General Manager, North Railway Baroda House, New Delhi addressed to Chief Secretary, Uttar Pradesh and the letter dated 09.03.2022 addressed to Divisional Railway Manager, Lucknow are annexed collectively herewith and marked as Annexure No. C.A.-7 to this Counter Affidavit.
11. That, also a revenue team with Sub- Divisional Officer, Sadar, Varanasi, conducted a spot inspection and also performed a Gatawise survey of the railway land including plots in dispute and it is found that all the plots in dispute belongs to Northern Railway, on which the petitioners has been illegally encroached and occupied unauthorized way. Photocopy of the letter dated 05.04.2018 issued by the office of Sub- Divisional Officer, Sadar, Varanasi and sent to D.R.M., Northern Railway, Lucknow with survey report, are annexed collectively herewith and marked as Annexure No. C.A.-8 to this Counter Affidavit.
12. That, from the perusal of the above mentioned facts, it is quite clear that the petitioners has been illegally encroached and occupied on the railway land in a unauthorized way. It is also crystal clear that the ownership of plots in dispute is with the Railway, therefore, the instant Writ Petition is misconceived and liable to be dismissed with heavy cost."
10. In Paragraph Nos. 2, 3 & 4 of the counter affidavit in Writ C No. 14715 of 2023 filed on behalf of respondent no. 5 i.e., District Magistrate- Varanasi, it has been stated as under:-
"2. That the land in question / Arazi no. 3, 4 and 9 was recorded in the name of the Awadh Ruhelkhand Railway in Khasra No. 1291 Fasli i.e. 1884. True photo copy of Khasra of 1291 Fasli is being filed herewith and marked as Annexure No.- CA- 1 to this affidavit along with its transliteration in Hindi.
3. That at present also Arazi no. 3, 4, are in the name of Northern Railway alone only having area 0.020 hectare are 0.243 hectare but as far as Arazi No. 9 is concerned, it is mainly recorded again in the name of Northern Railway having area 3.108 hectare, while remaining 9/1 0.157 hectare, 9/1 0.008 hectare, 9M 1.593 hectare, 9M 0.004 hectare are recorded in the name of Akhil Bhartiya Sarva Sewa Sangh. True copy of the Khatauni of 1427 Fasli (year 2020) is being filed herewith and marked as Annexure No. - CA- 2 to this affidavit.
4. That it is categorically stated that neither the petitioners nor their ancestors were never recorded in revenue as Nam Malikan / Owner at any point of time, Mere possession does not confer any right of ownership in favor of the petitioners."
11. The averments made in the aforesaid counter affidavits are supported by documentary evidences. No rejoinder affidavit has been filed by the petitioners despite time granted. Therefore, the averments made in the counter affidavit particularly when it is supported by documentary evidences; deserves to be accepted.
12. No documentary evidence has been filed by the petitioners to demonstrate that the land in question belongs to them.
13. By order dated 16.12.2021 in the case of Utran Se Besthan Railway Jhopadpatti Vikas Mandal (Supra), Hon'ble Supreme Court following the dictum in Ahemadabad Municipal Corporation v Nawab Khan Gulab Khan reported in (1997) 11 SCC 121 has issued the following directions as under:-
"(i) The respondent - Western Railways do immediately issue notices to the occupants of the concerned structures which are falling within the belt which is required immediately for commencing the the remaining project work by giving two week's time to the concerned occupant(s) to vacate the respective premises;
(ii) In respect of the remaining land owned by Railways, even though it may not be immediately required for the project, similar notice be given to the occupants of structures standing thereon by giving six weeks' time to vacate the respective premises;
(iii) In either case (i) and (ii) above, the notices be issued within one week from today and if the occupants fail to vacate the unauthorized structure, it will be open to the respondent-Western Railways to initiate appropriate action to forcibly dispossess them and to demolish or remove the unauthorized structure (s) by taking assistance of the local police force. The Superintendent/Commissioner of Police of the concerned area shall ensure that adequate police force is deployed on the site and surrounding areas including to provide protection to the officials/staff engaged in the demolition of unauthorized structures and to facilitate them to commence the eviction process and demolition of the unauthorized structures, referred to in the eviction notices on the specified date and time;
(iv) Before commencing the process of eviction and removal of the structures, the Collector of the concerned District must ensure that necessary details about the names and number of persons occupying the concerned structure, including their identity and profile should be duly recorded, which record should be preserved by the Collector for considering the eligibility of those persons for being provided suitable residential accommodation after being evicted owning to proposed demolition action;
(v) The entity, who is the owner of the land, namely, Western Railways in this case as well as the local Government and the State Government shall be jointly and severally liable to pay a sum of Rs. 2,000/- per month per demolished structure for a period of six months from the date of demolition of their structure as ex-gratia amount to the head of the family/occupants of the concerned unauthorized structure removed during demolition action. That amount shall be initially paid by the Collector for a period of six months "only" (not beyond six months each) and shall be later on shared equally by the entity (owner of the land), local Government and State Government;
(vi) In the event, the local Government has any rehabilitation scheme, the affected persons may apply for being rehabilitated under the said scheme, if eligible and subject to verification of eligibility and complying with all other terms and conditions of the prevalent scheme. The local Government may provide them suitable residential accommodation in lieu of rehabilitation owing to demolition of their structure.
(vii) If no rehabilitation scheme has been formulated by the local Government or is in force the persons likely to be affected by the action of demolition can apply for allocation of residential premises under the Pradhan Mantri Awas Yojna Scheme, which application be processed not later than six months from the date of its receipt and taken to its logical end, application-wise within such period.
(viii) Be it a case of rehabilitation under clause (vi) or (vii) above, the persons affected by demolition action by the Authorities cannot insist for allotment of alternative residential accommodation at the same place from where they have been evicted (as it is not in situ rehabilitation programme). The eligible persons be allotted accommodation wherever available in the same or even in neighbouring districts.
(ix) In addition, since the Railways have power to initiate civil/criminal action against the unauthorized occupants on the Railway property, must resort to those proceedings against the concerned persons immediately after it is brought to the notice to the concerned official of the Railways.
Further, the Railways being the owner of the property, as also the local Government and State Government must initiate appropriate action against the erring persons, including the officials of the concerned establishment for allowing and tolerating such encroachment and for not taking corrective action of removal of encroachments in right earnest and at the earliest opportunity.
(x) The status report of the action taken by the Railway Board as also by the local Government and State Government be furnished to this Court before the next date.
List this matter on 28.01.2022.
In the meantime, learned counsel for the petitioner to cure the defects as pointed by the Registry."
14. In Paragraph nos. 4, 5, 6, 7, 8, 9, 10, 11 & 12 of the counter affidavit filed on behalf of respondent nos. 1 to 4 in Writ (C) No. 14715 of 2023, the respondents have stated as under:-
"4. That initially the land in question was lying with the Military Estate Officer, Allahabad Circle and the authority was Government of India (Defence Department). Later on in the year 1941 the land was purchased by railways and was handed over to the East Indian Railway by the Military Estate Officer, Allahabad Circle, Allahabad.
5. That after purchased the land from the defence authorities, Indian Railways has made some establishment on the land and the major part of the land in question was vacant for future projects.
6. That on the vacant land of the railways are encroached by several notorious persons and they were constructed illegal Kachcha / Pakka houses and enjoying their life without any legal possession over the said land.
7. That on the several occasions authorities of the railways given direction to remove their illegal encroachments from the railway land. but the encroachers deliberately not remove their encroachment, then the joint survey was made by the railways with the help of civil revenue authorities and they were given joint survey report in the year 1960 and recorded the property in question are belongs to railways..
8. That after the joint survey railway tried to remove the encroachment from their lands for the different projects throughout the country but they could not succeed at various places. A Public Interest Litigation was filed before the Hon'ble Supreme Court of India, in regard to removal of the encroachment over the railways property. The Hon'ble Apex Court has directed the railways as well as State Government to remove the encroachment over the railways property for the development / establishment of the several projects in future.
9. That the Special Leave Petition (Civil) Diary No. 19714 of 2021 was filed before the Hon'ble Apex Court, and the Hon'ble Court vide order dated 16.12.2021 was pleased to direct the railways and State Government that they must initiate the proceeding in regard to removal of encroachments over the railways property.
10. That after passing the order from Apex Court, railways authority has takes the initiation to remove the illegal encroachments and sent the notices to the encroachers of the land in dispute.
11. That it is also mentioned here that under section 34 of U.P. Revenue Act 1901, a case No. RST/9762 OF 2015 in computer case no. T20151470019762, Krishanmurti Foundation of India Rajghat vs Purvarti Vikreta Governor Journal Bharat Sarkar was filed before Tahasildar (Judicial) Sadar, Varanasi, for mutation of the name on land in question on the basis of registered sale deed dated 25.08.1945, which was decided in favor of the railways.
12. That the above case was decided and dismissed on 02.04.2018 on the ground that the mutation application dated 14.5.2015 was rejected on the ground that the name of Northern Railway is recorded in the present khatauni and where the title is in question that cannot be decided in mutation proceeding. The true copy of the order dated 02.04.2018, passed by Tahasildar (Judicial) Sadar, Varanasi is being filed herewith and marked affidavit. as Annexure No CA-1 to this affidavit."
15. Arguments similar to the above have also been made in the counter affidavit filed on behalf of the Railway Department/Central Government in Writ C No. 14710 of 2023.
16. No rejoinder affidavit has been filed by the petitioners despite time granted.
17. In view of the facts as noted above, and also in view of the fact that the petitioners have completely failed to prove their title over the land in question and on the contrary the respondent i.e., Department of Railways, has clearly demonstrated that the land belong to the Railways, we do not find any good reason to interfere with the impunged notices or action of the respondents for removal of encroachments. Consequently, all the writ petitions fail and are hereby dismissed.
Order Date :- 16.5.2023 Shubham Arya