Supreme Court - Daily Orders
Nagar Palika Parishad, Jaspur vs Sunder (Since Deceased) Through Lrs . on 19 September, 2018
Bench: Arun Mishra, Vineet Saran
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 9760 OF 2018
(Arising out of SLP (C ) No. 15376 of 2016)
NAGAR PALIKA PARISHAD, JASPUR Appellant(s)
VERSUS
SUNDER (SINCE DECEASED) THROUGH LRS. & ORS. Respondent(s)
O R D E R
Leave granted.
Heard learned counsel for the parties. Facts of the case indicate that plaintiffs had set up case that they were cultivating the land since long and they had acquired the right of Sankarmaniye Bhumidhars over the disputed land. The land was comprised in survey no. 208 Min-09 Are and 208 Min. 3 Acre prior to 1368 crop year i.e. 1961. On settlement, plots were given new Survey Nos. 202 and 202A. The names of Ram Swarup and Puran were entered in revenue papers as cultivators.
Since land had been cultivated by the plaintiff after death of Puran and Ram Swarup, due to some mistake their names were entered in ‘Asami’ Category 3 . At the Signature Not Verified NEELAM GULATI Date: 2018.10.03 time of filing of the suit, the entry in revenue papers Digitally signed by 16:23:36 IST Reason:
was of the ‘Asami’ Category 3. They have acquired the right, and entry of ‘Asami’ Category 3 was based upon a 2 mistake. No steps were taken to evict them by initiating appropriate proceedings in court, hence the suit was filed.
State of Uttrakhand as well as Gaon Sabha were impleaded as defendants in the aforesaid proceedings filed under Section 229 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. Though the area admittedly falls within the area of Nagar Palika Parishad, Jaspur, it was not impleaded as defendant in the case. In the written statement it was contended that notice under Section 80 was not given. The plaintiffs were not entitled for declaration of Bhumidari rights. Necessary parties have not been impleaded. The suit land was pond and had vested in the State.
The suit was filed on 14.12.2002 which was decreed by the Additional Collector vide judgment dated 30th January, 2003. The Additional Collector who was also in charge-Chairman of the Nagar Palika Parishad, Jaspur decided the matter and observed that during the consolidation the earlier entry in revenue papers was deleted and name was entered in ‘Asami’ Category 3 instead of Shankaramaniya rights. The Additional Collector decreed the suit on the basis that rights have been perfected by virtue of adverse possession for more 3 than 12 years and case was not filed for eviction against them. Aggrieved thereby the Nagar Palika Parishad, Jaspur, though it was not impleaded as party, preferred appeal before the Commissioner with the delay of 42 days. Initially, the Commissioner condoned the delay. As against that revision was preferred, and the matter travelled to the High Court. The High Court ultimately remitted the matter back to the Commissioner for deciding the case afresh including application for condonation of delay. Thereafter the Additional Commissioner vide order dated 1.5.2007 dismissed the appeal on the ground of limitation as well as on merits. The Additional Commissioner has observed on merits that Notification dated 11.8.1954 filed by the Nagar Palika Parishad, Jaspur was not applicable to the disputed land as it was comprised in the Khata. It was also observed that there was no need to implead Nagar Palika as party as it had no right in the disputed land.
Aggrieved by the Order dated 1.5.2007, writ petition had been preferred unsuccessfully in the High Court. The High Court has observed that the same Sub Divisional Magistrate was in charge-Chairman of the municipality with effect from 23.2.2000 and during the said period he had decided the suit as such it was not 4 necessary to implead Municipal Council as party. Disputed land was not under the ownership of the Municipal Council. It was difficult to believe that Municipal Council was not aware of the pending case, as such the delay of 42 days in filing appeal was not condonable. The High Court also directed restoration of possession and observed that Municipal Council had taken forcible possession of the land which shall be restored forthwith to the plaintiff and Municipal Council shall not deprive the respondent or subsequent purchaser of the lawful rights arising in respect of decree dated 23rd January, 2003. No prayer for restoration of possession was made in the suit and it is also pertinent to mention that after obtaining decree on 30 th January, 2003, the property was sold immediately within two months i.e. on 31.3.2003 to one Rana Pratap.
We have heard learned counsel for the parties at length and perused the record minutely. It is apparent from the Notification dated 11th August, 1954 that all the ponds had vested in Municipal Council by virtue of the provisions contained under Section 117 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. There were corresponding entries made in the revenue papers placed on record.5
Apart from that, during the consolidation, under the provisions of Consolidation of Holdings Act, 1950, in compliance of order the entry was made in the revenue papers in 1971 shows that names of Puran and Ram Swarup were removed from ‘Asami’ categroy 9 and they were placed in ‘Asami’ category 3 meaning thereby they were not having any right over the land. This entry was made as per the order passed in the consolidation case. The order of 1971 passed under the Consolidation of Holdings Act attained finality and was not questioned for more than 30 years and no specific prayer was made to set aside the order, declaration was prayed as entries were incorrect.
The plaintiff had filed the suit under Section 229 B claiming declaration of the Bhumidhari Rights questioning the entry made under the Consolidation of Holdings Act. The entry in revenue papers was made in compliance of the order passed in 1971 in the course of consolidation of holdings, no such revenue suit was maintainable under the provisions of Section 229 B by virtue of bar created by the provisions contained in Section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953. Section 49 of the same is extracted hereunder:6
“49 Bar to civil Courts jurisdiction - Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a [notification] has been issued [under sub-section (2) of Section 4] or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act :
Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act.” A bare reading of the aforesaid provisions makes it absolutely clear that the Revenue Court was not competent to deal with the entry made on the strength of the order passed during the course of consolidation of holdings. No such revenue suit was maintainable.
Apart from that, it was incumbent to implead Nagar Palika Parishad, Jaspur as defendant in the suit. It suffered with the defect of non joinder of necessary party as the pond had vested in it on abolition of the intermediaries and there was corresponding notification issued in 1954 in this regard. In the absence of Nagar 7 Palika Parishad, Jaspur being arrayed as defendant, suit was not maintainable.
We are surprised by yet another aspect that in the absence of pleading about adverse possession, the Additional Collector had passed the decree on the said ground. There is no plea, much less evidence, as to adverse possession. It was wholly impermissible exercise done in undue haste by the Additional Collector while decreeing the suit, within a span of 34 days of it being filed. The dates of 2/3 days were given for recording the evidence. It appears that the decree was clearly procured in undue haste; apart from that the officer in charge who has passed the decree within 34 days, was also in charge of the Municipal Council and knew that area was not under Gram Sabha. It was equally startling state of affairs that High Court has observed that since the officer in-charge of the Municipal Council had adjudicated the matter in the capacity of Additional Collector, it was not necessary to implead the Municipal Council. It passes comprehension how such a finding could have been recorded.
The order passed by Additional Collector of not condoning the delay of 42 days and several rounds of litigation in that regard clearly indicated that the 8 plaintiff wanted to cover up anyhow or somehow illegality of decree under the guise of delay which ought to have been condoned readily in the facts and circumstances of the case. It is shocking and surprising that the appeal had been dismissed inter alia on the ground of delay of 42 days. It was clearly a fraudulent decree obtained in the revenue suit which was not maintainable as per the bar created under Section 49 of the Consolidation of Holdings Act, 1953.
The appeal is allowed. The decree and order passed by the Additional Collector, Additional Commissioner as well as by the High Court are hereby set aside. The suit is ordered to be dismissed. The costs of Rs.25,000/- (Rupees twenty five thousand) is imposed on the plaintiffs/respondents to be deposited with the Supreme Court Advocates on Record Welfare Trust within eight weeks from today.
................J. (ARUN MISHRA) ................J. (VINEET SARAN) NEW DELHI;
SEPTEMBER 19, 2018
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ITEM NO.15 COURT NO.8 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 15376/2016
(Arising out of impugned final judgment and order dated 10-05-2016 in WP No. 1680/2007 passed by the High Court Of Uttarakhand At Nainital) NAGAR PALIKA PARISHAD, JASPUR Petitioner(s) VERSUS SUNDER (SINCE DECEASED) THROUGH LRS . & ORS. Respondent(s) Date : 19-09-2018 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE VINEET SARAN For Petitioner(s) Mr. Manish Kumar, Adv.
Mr. Piyush Kaushik, Adv.
Ms. Divya Roy, AOR For Respondent(s) Mr. Jatinder Kumar Bhatia, AOR Mr. Tanmaya Agarwal, Adv.
Mr. S.R. Singh, Sr.Adv.
Mr. Pallav Shishodiya, Sr. Adv.
Mr. V. N. Raghupathy, AOR Mr. Shivpati B. Pandey, Adv.
Mr. Shaadanwar, Adv.
Mr. Naresh Kumar, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order. Pending application, if any, also stand disposed of.
(NEELAM GULATI) (JAGDISH CHANDER)
COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)