Allahabad High Court
Sarda Mahesh Prasad Singh And Others vs State Of U.P. And Others on 13 March, 2014
Bench: Ashok Bhushan, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 24/2/2014 Delivered on 13/3/2014 Case :- WRIT - C No. - 33354 of 1993 Petitioner :- Sarda Mahesh Prasad Singh And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- A.N.Verma,G.N.Verma Counsel for Respondent :- V.B. Garg,H.M.B. Sinha,S.P. Mehrotra,Sc And Case :- WRIT - C No. - 5497 of 1999 Petitioner :- Sharda Mahesh Prasad Singh & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- G.N. Verma,H.M.B. Sinha Counsel for Respondent :- C.S.C.,A.K. Mehrotra,Anuj Kumar Hon'ble Ashok Bhushan,J.
Hon'ble Mahesh Chandra Tripathi,J.
(Delivered by Ashok Bhushan,J) These two writ petitions, filed by the same petitioners have been heard together and are being decided by this common judgment. Counter and rejoinder affidavits having been exchanged between the parties, the writ petitions are being finally decided. Facts of both the writ petitions are being separately noted.
Writ Petition No. 33354 of 1993 The petitioners, resident of Village Pipri District Sonbhadra claim to be continuing in possession of various plots since before 1385 fasli. The plots were recorded as "Banjar" belonging to Gaon Sabha in which the petitioners were found in possession since before 1385 fasli.
A proposal was submitted before the Gaon Sabha, Pipri, Pargana Singrauli, District, Mirzapur for Anpara Thermal Project. The Land Management Committee in its meeting dated 23/6/1983, passed a resolution approving the aforesaid proposal for resuming different plots of Gaon Sabha Pipri for Anpara Thermal Power Project. The Commissioner, Varanasi Division, Varanasi passed an order dated 01/6/1984 resuming different plots of Village Pipri and other villages of Tehsil Dudhi District Mirzapur in exercise of power under Section 117 (6) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the "Act, 1950"). All the plots on which the petitioners claimed Sirdari rights were included in the order dated 01/6/1984 resuming the land for Anpara Thermal Power Project. Total 867 Plots measuring 542.570 acres were resumed by order dated 01/6/1984. After resumption of the land, the possession of plots were handed over to the Anpara Thermal Power Project on 06/12/1984. In Tehsil Dudhi and Robertsganj of District Mirzapur a notification under Section 4 of the Indian Forest Act, 1927 (hereinafter referred to as the "Act, 1927") was issued proposing reserved forest in different plots including the plots in which the petitioners were claiming Sirdari rights. Notification under Section 20 of the Act, 1927 was also issued with regard to certain other lands. The State Government after resuming the land by order dated 01/6/1984, and after acquiring certain more lands under the Act, 1950 and further acquiring rights on certain other lands which were under the Government Grant Act proceeded with the Anpara Thermal Power Project. Certain other lands were also given to the National Thermal Power Corporation for the project purpose. When the officials of the Forest Department initiated to take steps in pursuance of the aforesaid notification of the land for reserved forest, a letter was sent by Banwasi Seva Ashram operating in District Mirzapur to the Apex Court raising the grievance with regard to the rights of Adiwasis and other backward people living within the forest area. A writ petition under Article 32 of the Constitution of India was registered by the Apex Court. Various orders were passed by the Apex Court in the said writ petition for protection of rights of the Adiwasis and other backward people who were using the forest area as their habitat and had also been raising crops for their food. On behalf of the State of Uttar Pradesh it was informed to the Supreme Court that the State Government is already seized with the matter and is trying to identify the claims and find out the ways and means to regularise the same. The State Government had already appointed a High Power Committee for the said purpose. The Apex Court after hearing the parties had issued certain directions on 20/11/1986 in the above writ petition which is reported in Banwasi Seva Ashram Vs. State of U.P. & Ors, AIR 1987 SC 374. With regard to the lands notified under Section 4 of the Act, 1927 it was directed that even where no claim has been filed within the time specified in the notification as required under Section 6(c) of 1927 Act, such claims shall be allowed to be filed and dealt with in the manner as indicated in the order. The Supreme Court also directed the State of U.P. to appoint five experienced Additional District Judges for deciding the claims. It was further directed that after the Forest Settlement Officer has done the needful under the provisions of the Act, the findings with the requisite papers shall be placed before the Additional District Judge of the area even though no appeal is filed and the same shall be scrutinized, as if an appeal has been taken against the order of the authority and the order of the Additional District Judge passed therein shall be taken to be the order contemplated under the Act. Further directions were issued on 19/2/1992, in the said case which directions are reported in Banwasi Seva Ashram Vs. State of U.P. & Ors, AIR 1992, SC 920. The said directions were with regard to the lands which was decided to be given to National Thermal Power Corporation for setting up super thermal plant.
The Act, 1950 was amended by inserting Section 131-A in the Act by U.P. Act No. 14 of 1987 w.e.f. 15/4/1987 for declaring the person in cultivatory possession of any land, vested in a Gaon Sabha under Section 117 or belonging to the State Government, in the portion of District Mirzapur South of Kaimur Range, other than the land notified under Section 20 of the Indian Forest Act, 1927, before the 30th day of June, 1978, shall be deemed to have become a Bhumidhar with non-transferable rights.
Forest Settlement Officer by order dated 25/4/1989, granted Bhumidhari with non-transferable rights in favour of the petitioners on different plots in which they were found in possession since before 1385 fasli. The Anpara Thermal Power Project which claims possession of the land filed an application before the Forest Settlement Officer claiming that the land has been given to them after resumption on 01/6/1984 and no bhumidhari rights can be granted to the petitioners. The Forest Settlement Officer rejected the application of the respondent no.6 vide order dated 14/6/1991 holding that the case has already been decided which is pending in the appeal for consideration. The respondent no.6 filed its claim before the Additional District Judge where the appeal was pending. The Additional District Judge, Pipri, Sonebhadra passed an order dated 30/4/1992 setting-aside the order dated 25/4/1989 of the Forest Settlement Officer and remanded the case to the Forest Settlement Officer to pass a fresh order after hearing the parties. The Additional District Judge noted the case of the respondent no.6 that the land after acquisition by resumption was transferred to the Anpara Thermal Power Project by the State. It was observed by the Additional District Judge that what is the effect of transfer of the land to the project and whether such land can be reserved as reserved forest and whether any right can be given to the petitioners are the questions which are to be decided after the evidence is taken. It is relevant to note that the name of Anpara Thermal Power Project was recorded in the revenue records after the transfer of the land by the State Government. In the revenue records the name of the petitioners were also recorded in Clause IV (Varg Char) as in possession. After the order of the Additional District Judge dated 30/4/1992, setting aside the order dated 25/4/1989, the matter was again taken by the Forest Settlement Officer. Forest Settlement Officer passed an order dated 14/10/1992 in Case No.9061 granting rights to the petitioners on Plot No. 1590 area 16-8-0 which land was separated from the land given for the Anpara Thermal Power Project. The rights were given to the petitioners holding that the petitioners have proved their possession since before 1385 fasli. In case No. 9062 and 9023 the Forest Settlement Officer took the decision that the plots mentioned in the order may be kept out of reserved forest. It was also noted by the Forest Settlement Officer that the possession of the petitioners is proved since before 1385 fasli on the said plots whereas the name of the Anpara Thermal Power Project is recorded. The Forest Settlement Officer observed that whether in such circumstances the right can be given to a person who is in possession is a question of law which shall be decided by the Assistant Record Officer under Section 54 of the Land Revenue Act, 1901, (hereinafter called the "Act, 1901".) After the said order of the Forest Settlement Officer, the petitioners were not granted bhumidhari rights. An order dated 17/7/1993 was passed by the Forest Settlement Officer noticing the remand order dated 30/4/1992 of the Additional District Judge that Bhumidhari rights cannot be given to the land which is kept for specific project as per the provisions of Section 132 of the Act, 1950. The said order was passed with regard to Plot Nos.1355,1359,1360,1361,1362 and 1364 on which the petitioners nos.2 to 4 have claimed bhumidhari rights. The Assistant Record Officer issued a letter dated 20/7/1993 to Survey Naib Tehsildar informing that those lands which have been resumed by the order of the Divisional Commissioner/Collector for projects to make it available for the project by entering into the Gazette and on which land the name of the project has been recorded no right be given to any person keeping in view the resumption. It was also observed that the proceedings for recording of name be undertaken only when it is found that the land has not been acquired for any project. The Writ Petition No.33354/1993 has been filed by the petitioners praying for following reliefs:
"1.To issue a writ order or direction in the nature of writ or Certiorari calling upon the respondents to produce the record of the petitioner's case and to quash the order dated 20.7.93 of the respondents.
2. To issue a writ order or direction in the nature of writ of Mandamus directing the respondents not to interfere in petitioner possession and acquire the plot in dispute unless full compensation is paid to the petitioner in accordance with law of acquisition prevelent.
3. To issue a writ order or direction in the nature of writ of Mandamus directing the respondents not to score out the name of the petitioner and record the name of the respondent no.6.
4. To issue a writ order or direction in the nature of writ of Mandamus directing the respondents not to dispossess the petitioners from the land in dispute.
5. To issue such other writ order or direction as this Hon'ble court may deem fit and proper in the circumstances of the case so that justice be done.
6. To award cost of the petition to the petitioners in the aforesaid case."
An interim order was also passed in Writ Petition No.33354/1993, in favour of the petitioners which was vacated by this Court on 04/12/1998.
Writ Petition No.5497/1999Writ Petition No.5497/1999, has been filed by the petitioners in this Court on 09/2/1999 praying for quashing the order dated 01/6/1984, passed by the Commissioner, Varanasi Division, Varanasi resuming the land under Section 117(6) of the Act, 1950. Following are the reliefs which are being claimed by the petitioners in the Writ Petition No.5497/1999.
"(a) to issue a writ, order or direction in the nature of certiorari quashing the order of the Commissioner dated 1- 6-1984 (Annexure-2 to this Petition);
(b) to issue a writ, order or direction in the nature of mandamus directing the Respondents not to enforce the said Annexure-2 (i.e. Notification dated 1-6-84);
(c) to issue a writ, order or direction in the nature of certiorari to quash all the future action taken by the Respondents in enforcing Annexure-1;
(d) to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case;
(e) to award costs of the Petition to the Petitioners."
Counter affidavit has been filed by the respondent no.6, i.e. Uttar Pradesh State Electricity Board and by the State of U.P. in Writ Petition No.5497/1999, as well as by the Land Management Committee, Pipri i.e. respondent no.5 in the first writ petition.
In the counter affidavit filed by the respondent no.6 as well as in the counter affidavit filed by the State, it has been stated that the proposal for resumption of land was sent to the Gaon Sabha, Pipri for the purpose of handing over the land to the Anpara Thermal Power Project. The Gaon Sabha, vide its resolution dated 23/6/1983 approved the proposal. The Commissioner, Varanasi Division, Varanasi in exercise of power under Section 117 (6) of the Act, 1950 resumed the plots in question and the same were transferred to the Anpara Themal Power Project. The possession of the lands were resumed by order dated 01/6/1984. On 04/12/1984 the possession of the land was handed over to the Anpara Thermal Power Project. Thereafter vide order dated 06/12/1984 the name of the Anpara Themal Power Project was recorded in the revenue records. The Forest Settlement Officer without giving any opportunity of hearing to the respondent no.6 passed an order dated 25/4/1989, giving bhumidhari rights to the petitioners under Section 131-A of the Act, which order has been set-aside by the Additional District Judge in appeal vide order dated 30/4/1992. The Forest Settlement Officer vide order dated 14/10/1992, granted rights to the petitioners on Plot No.1590 which was separated from Anpara thermal Power Project on the ground that it is in possession of the petitioners since before 1385 fasli. With regard to other plots although it was directed to be separated from reserved forest, but direction was issued to decide their claims under Section 54 of the Act, 1901. It was stated that the petitioners claim for giving bhumidhari right has been rightly negatived by the authorities since the land has already been handed over to the Anpara Thermal Power Project on 04/12/1984, whereafter it was in possession of the Anpara Thermal Power Project. It was stated that no rights can be given to the petitioners on the land which has been given to the Anpara Thermal Power Project after resumption.
We have heard Shri H.M.B. Sinha, learned counsel appearing for the petitioners in both the writ petitions; Shri A. K. Mehrotra for the respondent no.6; Shri Anuj Kumar for the Land Management Committee and Shri Bal Krishna, learned Standing Counsel for the State respondents.
Shri H.M.B. Sinha, learned counsel appearing for the petitioners in support of the first writ petition submitted that the petitioners were in possession of the plots since before 30/6/1978 and their possession over the land is also recorded in the revenue records since before 1385 fasli hence they have become Bhumidhar with non-transferable rights under Section 131-A of the Act, 1950. He has referred to the Survey Form No.15 in which the petitioners' possession have been recorded since before 1385 fasli. He submits that the petitioners are still in actual possession. He submits that after remanding the matter by the Forest Settlement Officer vide his order dated 14/10/1992, there is no proper determination of the issues by the Assistant Record Officer by the order dated 20/7/1993 which is impugned in the writ petition which has not considered the claim of the petitioners, nor any cogent reasons have been given for rejecting the claim of the petitioners. He submits that the order dated 20/7/1993 issued by the Assistant Record Officer deserves to be set-aside and the petitioners be declared bhumidhar with non-transferable rights under Section 131-A of the Act, 1950.
In support of the second writ petition, learned counsel for the petitioners submits that the petitioners being in possession of the aforesaid lands, the said land could not have been resumed by the Commissioner vide order dated 01/6/1984. He submits that the petitioners have not been paid any compensation for resumption of the land. He submits that the Commissioner has no authority or jurisdiction to resume the land which was in possession of the petitioners. He submits that the Writ Petition No.5497/1999 was filed after this Court vacated the interim order on 04/8/1998 granted in the first writ petition.
We have considered the submissions of the learned counsel for the parties and have perused the record.
From the pleadings of the parties and the submissions made, following are the issues which arise for consideration in these two writ petitions.
(1)Whether the petitioners on the ground that they were in possession over the plots in question since before 1385 fasli are entitled to be declared as bhumidhar with non-transferable rights under Section 131-A of the Act.
(2)Whether the petitioners claim for granting them bhumidhar with non-transferable rights was liable to be rejected on the ground that the plots in question after resumption under Section 117 (6) of the Act, 1950 has been given to the Anpara Thermal Power Project on 04/12/1984 and the name of the Anpara Thermal Power Project was recorded in the revenue records thereafter.
(3)Whether the order dated 20/7/1993 passed by the Assistant Record Officer deserves to be set-aside having not determined the rights of the petitioners in accordance with Section 131-A of the Act, 1950.
(4)Whether the order dated 01/6/1984, passed by the Commissioner, Varanasi Division Varanasi in exercise of power under Section 117 (6) of the Act, 1950 deserves to be quashed.
Issue nos. 1 to 3 being interconnected are being taken up together.
Before we proceed to consider the respective submissions of the learned counsel for the parties, it is useful to refer to relevant provisions of the Act, 1950. Section 4 of the Act provides for vesting of estates in the State. Section 6 of the Act provides for consequences of the vesting of an estate in the State. Under Section 117 of the Act, 1950 the State Government after the publication of the notification referred to in Section 4, may by general or special order declare that anyone of the items mentions in sub-section (1) shall vest in a Gaon Sabha or any other local authority established for whole or part of the village. Sub-section (6) of Section 117 of the Act empowers the State Government to amend or cancel any declaration, notification or order made in respect of any land. Sub-sections (1), (2) and (6) of Section 117 of the Act which are relevant are quoted below:
"117. Vesting of certain lands, etc. In Gaon Sabhas and other Local Authorities.-(1) At any time after the publication of the notification referred to in Section 4, the State Government may [by general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all or any of the following things, namely-
(i)lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove;
(ii)forests;
(iii) trees, other than trees in a holding on the boundary of a holding or in a grove or abadi;
(iv)fisheries;
(v)hats, bazars and melas, except hats, bazars and melas held on lands to which the provisions of Clauses (a) to (c) of sub-section (1) of Section 18 apply or on sites and areas referred to in Section 9; and
(vi)tanks, ponds, private ferries, water channels, pathways and abadi site,-
which had vested in the State under this Act, shall vest in a Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate or partly in one such local authority (including a Gaon Sabha) and partly in another:
Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as may be [specified in such order].
(2) Notwithstanding anything contained in this Act or in any other law for the time being in force, the State Government may, [by general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all or any of the things specified in Clauses (i) to (vi) of sub-section (1) which after their vesting in the State under this Act, had been vested in a Gaon Sabha or any other local authority, either under this Act or under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, shall vest in any other local authority (including a Gaon Sabha) established for the whole or part of the village in which the said things are situate.
(3)...............
(4)...............
(5).................
(6)The State Government may at any time, [by general or special order to be published in the manner prescribed], amend or cancel any [declaration, notification or order] made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority and resume such thing and whenever the State Government so resumes any such things, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things:
Provided that the State Government may after such resumption make a fresh declaration under sub-section (1) or sub-section (2) vesting the thing resumed in the same or any other local authority including a Gaon Sabha), and the provisions of sub-sections (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration."
Chapter VIII of the Act provides for tenure. Section 129 of the Act, 1950 defines Classes of Tenure. Section 130 of the Act, 1950 defines Bhumidhar with transferable rights. Section 131 of the Act, 1950 defines Bhumidhari with non-transferable rights. Section 131-A of the Act was inserted in the Act by U.P. Act No. 14 of 1987 (w.e.f. 15.04.1987) to give right to every person in cultivatory possession of any land, vested in a Gaon Sabha under Section 117 or belonging to the State Government, in the portion of District Mirzapur South of Kaimur Range, in which land the petitioners claim to be in possession before 30/6/1978. The plots in the present writ petition are the plots situate in the South of Kaimur Range. Section 131-A of the Act, 1950 is quoted below:
"131-A Bhumidhari rights in Gaon Sabha or State Government land in certain circumstances.-Subject to the provisions of Section 132 and Section 133-A, every person in cultivatory possession of any land, vested in a Gaon Sabha under Section 117 or belonging to the State Government, in the portion of District Mirzapur South of Kaimur Range, other than the land notified under Section 20 of the Indian Forest Act, 1927, before the 30th day of June, 1978, shall be deemed to have become a Bhumidhar with non-transferable rights of such land:
Provided that where the land in cultivatory possession of a person, together with any other land held by him in Uttar Pradesh exceeds the ceiling area determined under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, the rights of a Bhumidhar with non-transferable rights shall accrue in favour of such person in respect of so much area of the first-mentioned land, as together with such other land held by him, does not exceed the ceiling area applicable to him and the said area shall be demarcated in the prescribed manner in accordance with the principles laid down in the aforesaid Act.]."
Sections 132 and 133-A of the Act which are also relevant are quoted below:
"132. Land in which [bhumidhari] rights shall not accrue.- Notwithstanding anything contained in Section 131, but without prejudice to the provisions of Section 19, [bhumidhari] rights shall not accrue in-
(a) pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation;
(b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette; and
(c) lands declared by the State Government by notification in the Official Gazette, to be intended or set apart for taungya plantation or grove lands of a [Gaon Sabha] or a Local Authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this clause-
(i)lands set apart for military encamping grounds;
(ii)lands included within railway or canal boundaries;
(iii) lands situate within the limits or any cantonment;
(iv) lands included in sullage farms or trenching grounds belonging as such to a local authority;
(v)lands acquired by a town improvement trust in accordance with a scheme sanctioned under Section 42 of the U.P. Town Improvement Act, 1919 (U.P. Act VII of 1919) or by a municipality for a purpose mentioned in clause (a) or Clause (c) of Section 8 of the U.P. Municipalities Act, 1916 (U.P. Act VII of 1916); and
(vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953 (U.P. Act V of 1954).]"
"133-A. Government lessees.-Every person to whom land has been let out by the State Government shall be called a Government lesseee in respect of such land and shall, notwithstanding anything to the contrary contained in this Act, be entitled to hold the same in accordance with the terms and conditions of the lease relating thereto.]"
The rights which were initially granted to the petitioners under Section 131-A of the Act, 1950 by the Assistant Record Officer vide his order dated 25/4/1989 were set-aside by the Additional District Judge in appeal vide order dated 30/4/1992. As noted above, the Forest Settlement Officer after the order of the Additional District Judge dated 30/4/1992 passed an order dated 14/10/1992. Copy of the order dated 14/10/1992 has been brought on the record which has been filed by the respondent no.6 as Annexure CA-8. A perusal of the said order indicates that the order dated 14/10/1992 was passed by the Assistant Record Officer who is also the Forest Settlement Officer of Village Pipri, District Sonebhadra which is apparent from Annexure CA-8 which mentions that the Assistant Record Officer is also the Forest Settlement Officer. By order dated 14/10/1992, the land was directed to be separated from the reserved forest.
The question to be decided is as to whether on the basis of the possession over the lands on which the name of the Anpara thermal Power Project is recorded, rights can be given to the petitioners or not. The petitioners after the order dated 14/10/1992 have brought on record only a letter dated 20/7/1993 written by the Assistant Record Officer who is also the Forest Settlement Officer which has been prayed to be quashed. Certified copy of the letter dated 20/7/1993 has been filed along with the first writ petition. A perusal of the certified copy of the order dated 20/7/1993 indicates that the said is a letter written by the office of the Assistant Record Officer which is numbered as "Patrank 361". The said letter is addressed to Survey Naib Tehsildar which mentions that the earlier order has been passed that in respect of the lands which were recorded in the name of projects given to it after acquisition or resumption of lands, if any right is given to any person the same will be treated to be ineffective. The said letter further clarifies that in those villages where the acquisition or resumption has taken place, name be recorded only when the land has not been acquired or resumed for the project. Although, the letter dated 20/7/1993 refers to the earlier decision taken in that regard, but the said decision has not been brought on the record by the petitioners.
In the counter affidavit filed on behalf of the respondent nos. 1 to 4 and 7 in the Writ Petition No.5497/1999, copy of one of the order dated 17/7/1993 passed by the Assistant Record Officer/Forest Settlement Officer has been brought on the record. In the said order the Forest Settlement Officer after noticing the fact that the petitioners nos. 2 to 4 were in possession of the land since 1385 fasli and also noticing the fact that the Additional District Judge vide order dated 30/4/1992 has remanded the matter back with further observation that the land has been resumed under the order of the Commissioner, Varanasi Division, Varanasi for the project,hence on such lands no bhumidhari right can be given by virtue of Section 132 of the Act, 1950. The said order relates to Plot Nos. 1355,1359,1360,1361, 1362 and 1364 on which the petitioners are claiming their rights and which plots were resumed by the order of the Commissioner vide order dated 01/6/1984. In the order dated 17/7/1993, the Forest Settlement Officer has clearly given the reason as to why the bhumidhari rights cannot be given on the plots on which the petitioners were in cultivatory possession since before 1385 fasli.
Section 131-A of the Act, 1950 provides for giving bhumidhari with non-transferable rights to every person in cultivatory possession of the land since before 30/6/1978. However, Section 131-A begins with the word "subject to the provision of Section 132 and Section 133-A......" Thus, bhumidhari with non-transferable rights is to be given to every person under Section 131-A subject to the provisions of Section 132 and 133-A. Section 132 of the Act, 1950 enumerates the land in which the bhumidhari rights shall not accrue. Section 132 of the Act, 1950 begins with the non-obstante clause i.e. notwithstanding anything contained in Section 131. Section 131-A of the Act, 1950 specifically refers it to be subject to the provisions of Section 132 hence Section 132 has to be given an overriding effect on Section 131-A. Section 132 sub-clause (c) enumerates the category of land on which no bhumidhari rights can be given. Section 132 sub-clause (c) of the Act also includes two category of land i.e. "land acquired or held for a public purpose." Section 132 sub-clause (c) of the Act further enumerates specific particulars of cases of (vi) categories of different lands, but while enumerating particular cases Section 132 sub-clause (c) mentions "in particular and without prejudice to the generality of this clause........."
Section 132 sub-clause (c) of the Act, 1950 thus clearly provides that the land "acquired or held for a public purpose" is covered by Section 132. In the present case, the lands were acquired by resumption under Section 117 (6) of the Act, of the Act, 1950 for the purpose of Anpara Thermal Power Project, which land is also held by the Anpara Thermal Project for public purpose. There cannot be any denial to the fact that the thermal power project is for a public purpose. Thus, the lands acquired or held by the Anpara Thermal Power Project are lands held for a public purpose, thus it is fully covered by Section 132 sub-clause (c). The Forest Settlement Officer vide his order dated 17/7/1993, filed as Anexure CA-4 to the Counter Affidavit of the State Government in Writ Petition No.5497/1999 gives this very reason for denying the bhumidhari rights to the petitioners despite recording a finding that the petitioners are in possession of the land since before 1385 fasli.
The bhumidhari rights given to the persons in the cultivatory possession under Section 131-A of the Act, 1950 who were in possession since before 30/7/1978 was for a specific purpose. However, giving bhumidhari rights was denied to the category of lands as mentioned in Sections 132 and 133-A of the Act,1950. The land which is covered by Section 132 is a land which serves a higher public purpose and the legislature has cautiously given an overriding effect to the higher public purpose enumerated in Section 132 of the Act as compared to the rights given to a person under Section 131-A of the Act. Thus, there is a decision of the Forest Settlement Officer who is also the Assistant Record Officer on record which pertains to plots included in paragraph 1 of the writ petition and it gives specific reason for denying the rights to the petitioners. Thus, the argument of the petitioners counsel that the petitioners' right were not considered in the light of Section 131-A of the Act,1950 cannot be accepted. The order which is sought to be quashed in the writ petition is only a letter dated 20/7/2013, written by the Assistant Record Officer. As noted above, the letter dated 20/7/1993 refers to the earlier decision taken by the Forest Settlement Officer which is nothing but decision taken on 17/7/1993 and other similar decisions. Thus, we do not find any infirmity in the letter dated 20/7/1993 which requires interference by this Court in exercise of power under Article 226 of the Constitution of India.
In view of what has been stated above, the petitioners cannot claim any bhumidhari rights under Section 131-A of the Act, 1950 in view of the fact that no such rights can be given on a land which is covered by Section 132 sub-clause (c) of the Act. The lands which are subject matter of dispute in the present writ petition are the lands which have been resumed by the State under Section 117(6) of the Act,1950 and transferred to the Anpara Thermal Power Project on 04/12/1984. The lands which have been transferred to the Anpara Thermal Power Project are the lands within the meaning of Section 132 sub-clause (c) of the Act, on which no rights can be claimed under Section 131-A of the Act, 1950. We, thus hold that the petitioners are not entitled for any bhumidhari with non-transferable rights in the lands in dispute.
Now, we come to the last issue i.e. challenge to the order dated 01/6/1984 passed by the Commissioner, Varanasi Division, Varanasi after resumption of land.
The respondents in their counter affidavit have taken a plea that challenge to the said order is highly barred by time. The order was passed on 01/6/1984 and the Writ Petition No.5497/1999 has been filed in this Court on 09/2/1999 i.e. after more than 14 years. The challenge to the resumption order dated 01/6/1984 after more than 14 years cannot be entertained. Even on merits, we do not find any ground to interfere with the order dated 01/6/1984 resuming the land under Section 117(6) of the Act. Section 117(6) of the Act empowers the State to resume any land which has been handed over for management to a Gaon Sabha. What is vested under Section 117 (1) of the Act in a Gaon Sabha can very well be divested in exercise of power under sub-section (6) of Section 117. Resumption of the land has been made in accordance with the power given under Section 117 (6) of the Act. We do not find any ground in the writ petition to quash the resumption order dated 01/6/1984, whereas after the resumption the land was given to the Anpara Thermal Power Project on 04/12/1984.
In view of the foregoing discussions, both the writ petitions are dismissed.
Order Date :-13.3.2014 SB