SA/71/2012 of SMT. KASIM AND ORS Vs NAGAR NIGAM DEHRADUN AND ORS on 29 December 2017

1. Smt. Rashidan W/o Late Kasim

2. Sri Fakaruddin S/o Late Kasim

3. Sri Nasuruddin S/o Late Kasim

4. Sakruddin S/o Late Kasim

5. Sri Sarakat S/o Late Kasim

6. Sri Asik Ali S/o Late Kasim

7. Km. Afsana D/o Late Kasim

All residents of Village Brahamanwala, Niranjanpur Pargana Kendriya Doon Tehsil & District Dehradun.

8. Alpshankhyak Kalyan Evam Waqf Vikas Nigam, District Dehradun

9. State of Uttarakhand,

Through the Secretary, Urban Development, Govt. of Uttarakhand at Dehradun.

….Defendants/Proforma Respondents

Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. S.S. Chauhan, Advocate for the appellant. Mr. I.P. Kohli, Standing Counsel, for the State.

Mr. Aditya Singh, Advocate, for the private respondents.

With

Uttaranchal Alpshankhyak Kalyan Tatha Waqf Vikas Nigam, District Dehradun through its General Manager Sri Chandra Lal, S/o Sri Lachchi Ram, R/o 69, Sanjay Colony, Patel Nagar, Dehradun, Uttarakhand.

….Defendant no. 2/Appellant

Versus

1. Smt. Raseedan W/o Late Sri Kasim

2. Sri Fakruddin S/o Late Sri Kasim

3. Sri Nasiriddin S/o Late Sri Kasim

4. Sakruddin S/o Late Sri Kasim

5. Sri Sarakat Ali S/o Late Sri Kasim

6. Sri Ashik Ali S/o Late Sri Kasim

7. Kumari Afsana D/o Late Sri Kasim

All respondents residents of Village Brahmanwala Niranjanpur Pargana Kendriya Doon Tehsil & District Dehradun.

8. Nagar Nigam, Dehradun

Through its Executive Officer, Nagar Nigam, Dehradun. Dehradun.

9. State of Uttarakhand,

Through its Secretary, Urban Development Section, Government of Uttarakhand, Secretariat, Dehradun. Section, Government of Uttarakhand, Secretariat, Dehradun.

……….Defendants no. 1 & 3/Proforma Respondents Respondents Mr. Dharmendra Barthwal, Advocate for the appellant.

Mr. I.P. Kohli, Standing Counsel, for the State. Mr. Aditya Singh, Advocate, for the private respondents. Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. S.S. Chauhan, Advocate for the Nagar Nigam, Dehradun.

Uttaranchal Alpshankhyak Kalyan Tatha Waqf Vikas Nigam, District Dehradun through its General Manager Sri Chandra Lal, S/o Sri Lachchi Ram, R/o 69, Sanjay Colony, Patel Nagar, Dehradun, Uttarakhand.

….Defendant no. 2/Appellant

Versus

1. Smt. Raseedan W/o Late Sri Kasim

2. Sri Fakruddin S/o Late Sri Kasim

3. Sri Nasiriddin S/o Late Sri Kasim

4. Sakruddin S/o Late Sri Kasim

5. Sri Sarakat Ali S/o Late Sri Kasim

6. Sri Ashik Ali S/o Late Sri Kasim

7. Kumari Afsana D/o Late Sri Kasim

All respondents residents of Village Brahmanwala Niranjanpur Pargana Kendriya Doon Tehsil & District Dehradun.

8. Nagar Nigam, Dehradun

Through its Executive Officer, Nagar Nigam, Dehradun. Dehradun.

9. State of Uttarakhand,

Through its Secretary, Urban Development Section, Section, Government of Uttarakhand, Secretariat, Dehradun. …..….Defendants no. 1 & 3/Proforma Respondents Mr. Dharmendra Barthwal, Advocate for the appellant.

Mr. I.P. Kohli, Standing Counsel, for the State. Mr. Aditya Singh, Advocate, for the private respondents. Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. S.S. Chauhan, Advocate for the Nagar Nigam, Dehradun.

1. Smt. Rashidan W/o Late Kasim

2. Sri Fakaruddin S/o Late Kasim

3. Sri Naseeruddin S/o Late Kasim

4. Jafaruddin S/o Late Kasim

5. Sri Sharafat Ali S/o Late Kasim

6. Sri Ashique Ali S/o Late Kasim

7. Km. Afsana D/o Late Kasim

All R/o Village Brahamanwala, Niranjanpur Pargana Central Doon Tehsil & District Dehradun.

….Appellants

Versus

1. Nagar Nigam, Dehradun Through its Administrator, Dehradun. Through its Administrator, Dehradun.

2. Uttaranchal Alp Shankhyak Kalyan Evam Waqf Vikas Nigam, Dehradun through its General Manager Sri Chander Lal, S/o Sri Lakhi Ram, R/o 69, Sanjay Colony, Patel Nagar, Dehradun, Uttarakhand. Waqf Vikas Nigam, Dehradun through its General Manager Sri Chander Lal, S/o Sri Lakhi Ram, R/o 69, Sanjay Colony, Patel Nagar, Dehradun, Uttarakhand.

Through its Secretary, Nagar Vikas Anubhag, Civil Secretariat, Dehradun.

…. Respondents

Mr. Aditya Singh, Advocate for the appellants.

Mr. I.P. Kohli, Standing Counsel, for the State. Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. S.S. Chauhan, Advocate for the Nagar Nigam, Dehradun.

Judgment reserved on: 27.12.2017Judgement delivered on: 29.12.2017

Hon’ble Servesh Kumar Gupta, J.

All these four appeals assail the judgment and order of the Additional District Judge, Dehradun dated 7.4.2012, hence are being taken up together for adjudication. For proper appreciation and to understand the propriety of preferring the appeals titled above, it is necessary to have the notice of the backdrop facts of the controversy prevailing between the parties.

Original Suit No. 39/2003 was instituted on 21.2.2003 initially against the Municipal Corporation, Dehradun seeking the decree of perpetual injunction not to interfere in the peaceful possession over the property in question and not to dispossess him forcefully and illegally without taking recourse to the procedure of the law. The property was mentioned in the schedule at the foot of the plaint entailing Khasra No. 190, area 0.870 hectare and Khasra No. 191, area 0.170 hectare situated in the Village Brahmanwala, Niranjanpur, Pargana Central Doon, Tehsil and District Dehradun.

It that the appears Municipal Corporation allotted the land of Khasra No. 191 to the Uttaranchal Alpshankhyak Kalyan Evam Waqf Vikas Nigam (hereinafter called as the ‘Waqf Vikas Nigam’) by a lease deed dated 26.6.2006. So, for this reason, Uttarakhand State and the ‘Waqf Vikas Nigam’ were also subsequently impleaded as the defendants and the relief was also addedly amended to the effect of cancellation of the lease deed by the Municipal Corporation in favour of the ‘Waqf Vikas Nigam’.

Learned First Additional Civil Judge (J.D.), by his judgment and order dated 30.10.2010, decreed the suit in toto including the declaration of the lease deed dated 26.6.2006 as void and ineffective. The counter claim of the Waqf Vikas Nigam seeking injunction against the plaintiff was dismissed as well.

Challenging the judgment of the Civil Judge, the Municipal Corporation preferred the Civil Appeal No. 79/2010, while the ‘Waqf Vikas Nigam’ preferred two Civil Appeals No. 81/2010 and 82/2010, whereby the cancellation of the lease deed and declaration of the same as void and ineffective was challenged. In another appeal, the dismissal of the counter claim was challenged. State also filed the Appeal No. 80/2010 challenging the same judgment in consonance with the relief sought by the Municipal Corporation and the Waqf Vikas Nigam.

Learned Additional District Judge consolidated all the appeals on 12.12.2011 making the Appeal No. 79/2010, Municipal Board v. Kasim & Others, as the leading one. Such appeal was partially allowed by the impugned judgment and order dated 7.4.2012 setting aside that portion of the judgment and order of the learned Civil Judge dated 30.10.2010 by which the lease allotment order dated 26.6.2006 was declared void and ineffective. Learned First Appellate Court sustained the findings of the learned Trial Judge pertaining to Khasra No. 190, area 0.870 hectare.

So, here out of the four second appeals, SA No. 61/2012 has been preferred by the Municipal Corporation, Dehradun and SA No. 67/2012 and 70/2012 have been preferred by the ‘Waqf Vikas Nigam’ challenging the judgment whereby the decree passed by the Trial Judge on Khasra No. 190 could remained sustained. On the other hand, the legal heirs of Mr. Kasim challenged that part of the judgment whereby quashing of the lease deed in favour of the Waqf Vikas Nigam by the Municipal Corporation was set aside. Meaning thereby, the lease deed executed by the Municipal Corporation in favour of the ‘Waqf Vikas Nigam’ was upheld pertaining to Khasra No. 191, area 0.170 hectare.

Following three substantial questions of law were formulated by the co-ordinate Bench of this Court by order dated 8.8.2012:

1. Whether the claim of the plaintiff could be decreed without the presence of a necessary party, namely, the Gaon Sabha, who according to the plaintiff was the ostensible owner of the land?

2. Whether the land in question stood divested to the defendant/appellant Nagar Nigam Dehradun by virtue of the notification dated 2[nd] June, 1999

under Section 126 of the Municipal Corporation Act, 1959?

3. Whether in spite of divesting of the land in favour of the Municipal Corporation, the plaintiff’s right as a valid allottee pursuant to the resolution of the Gaon Sabha remained intact?

I have heard learned Counsels of all concerned and have perused the record.

The suit was instituted initially against the Municipal Corporation, Dehradun and later on, since a portion of the land (area 0.345 hectare) in Khasra No. 190 was allotted by the Municipal Corporation to the Waqf Vikas Nigam on 26.6.2006, hence the need arose to implead the Waqf Vikas Nigam as well as the State as the defendant no. 2 and 3 respectively and the relief was also sought for the cancellation of such lease deed executed by the Municipal Corporation in favour of the Waqf Vikas Nigam.

It is undisputed that the land in controversy, which has been more fully described in the schedule at the foot of the plaint, was basically a Gaon Sabha land of

Village Brahmanwala way back in 1974-75 and at such period of time, it was allotted to the plaintiff or his predecessor in-interest for agricultural purposes under the very popular 20 point national programme of Central Government. The Court at the stage of second appeal is not inclined to enter into the controversy whether this land was submerged in nature or the adjoining land of such area or that the plaintiff was put into possession of the present land in question after the exchange of the same by the competent authorities because both the Courts below have dealt extensively with this fact and have given the finding by citing, inter alia, relevant resolution of Gaon Sabha that the plaintiff was in fact put into possession over the very land in question since the beginning. The Trial Court while adjudicating the issue no. 1 has discussed at length as to how the plaintiff has been able to successfully establish his continued possession over the land in question since the very beginning. The fact remains that he or his predecessor in-interest remained in continuous and uninterrupted possession of such land and this concurrent finding is the finding of fact, which has been upheld by the First Appellate Court in paragraph 17 of its judgment. It is no more resintegra as it has been affirmed in umpteen number of cases that the High Court while adjudicating Second Appeal under Section 100 C.P.C. is not to ordinarily dismiss or dilute a finding of fact from the Courts below.

The following precedents have been relied by learned Senior Counsel Mr. Arvind Vashistha:

1. Hinch Lal Tiwari v. Kamala Devi & Others,(2001) 6 SCC 496.

2. Kamla Prasad & Others v. Kishna Kant Pathak & Others, (2007) 4SCC 213.

3. Smt. Beena Bahuguna v. State of Uttarakhand & Others, 2013 SCCOnLine Utt 2023.

Looking to all the precedents, it can remarkably be noticed that the law laid down by the Hon’ble Apex Court and the Divisional Bench of this Court was with the object to safeguard the environment and water reservoirs and all the above verdicts are environmental centric, while the land in controversy is no more in the nature of forest or any water body in as much as apparently an agricultural in nature besides having been in the municipal limits.

That is why the Municipal Corporation could find it quite easier to allot a portion of the same along with its adjoining land for Waqf Vikas Nigam even for construction of a ‘Musafir Khana’ (passengers rest house). If such is the state of affairs, then where remains the question of protection of forest or a water reservoir or a submerged land?

It is also evident that such land was never included in the 2[nd] Schedule of the notification issued on 2.6.1999 whereby the Village Brahmanwala was taken into municipal limits. Such fact has also been accepted by the Additional Chief Revenue Commissioner in its judgment dated 12.6.2009, which is available on the record. English translation of the penultimate paragraph of page 6 of his judgment is being reproduced as under:

“As per law, the State Government after issuing the notification under Section 117 of the Zamindari Abolition Act can direct the vesting of the Gaon Sabha land to the local municipal authority. No such notification was produced by the Municipal Corporation evincing the vesting of the land on Mauza Brahmanwala into the Corporation under Section 117 of the Zamindari Abolition Act. Whatever the notification dated 2.6.1999 has been produced by the Municipal Corporation has the impact of bringing such territory including the land in controversy within the territorial limits of the Corporation and on the basis of this bare notification, the land in controversy cannot be accepted to be out of the purview of the Zamindari Abolition Act. Therefore, pertaining to the land in controversy, the Municipal Corporation has no locus standi.”

Hence, in view of the finding of the Additional Chief Revenue Commissioner, it is clear that the land in question never stood divested to the defendant/appellant Nagar Nigam, Dehradun by virtue of the notification dated 2.6.1999 under Section 126 of the Municipal Corporation Act, 1959.

This substantial question of law is answered accordingly.

The relevant fact regarding the substantial question of law is that the proceedings under Section 122B of U.P.Z.A. & L.R. Act was initiated in the year 1997-98 against the plaintiff and notice was issued therein to the plaintiff. However, on the remand of the matter from the revisional authority, the proceedings were later on dropped and the case was disposed of by the Assistant Collector by order dated 13.7.2009 under the belief of want of jurisdiction and also recording that if so advised the Municipal Corporation may litigate to evict the plaintiff before appropriate judicial forum. This is a finding recorded by Trial Court in detail.

It is surprising to note that the Municipal Corporation, which in its mind claims the land in question to be its own and also going to the extent of executing the lease deed under such belief, never initiated any legal proceedings to claim the land in question against the settled and continued possession of the plaintiff over it. This speaks for itself as to why Municipal Corporation’s claim over the land in question would not inspire confidence of any reasonable mind least of the Court. Having failed to adopt the course of law, the Municipal Corporation through its officers/officials started interfering in the peaceful possession of the plaintiff and that is why the plaintiff filed this present suit the as impleading Municipal Corporation defendant.

The plaintiff claimed no relief against the Gaon Sabha, therefore, it was not made party to the lis. This goes in no way against the plaintiff. The Gaon Sabha was the ostensible owner and it was the Gaon Sabha which allotted the land to the plaintiff. Pursuant to such allotment, the plaintiff certainly acquired certain rights under the law and such rights are not delusional in dimension and certainly can never be negated in the manner as adopted by the Municipal Corporation, otherwise the procedure established by law would be reduced to nothing but a promise of unreality.

It was the Municipal Corporation where against relief was sought by the plaintiff and not the Gaon Sabha. The fact that the Gaon Sabha being the owner, allotted the land to the plaintiff making him a valid allottee under the law does not make it mandatory for the plaintiff to make Gaon Sabha a party to the lis. It was the Municipal Corporation and not the Gaon Sabha who interfered in the peaceful possession disturbing the rightful allotment of the land in question to the plaintiff and that is why Municipal Corporation was impleaded as the defendant. Since, the Municipal Corporation proceeded to execute a lease of a portion of the khasara, as indicated above, in favour of Vikas Nigam, hence the need arose to implead Vikas Nigam as the necessary party.

So, this substantial question of law is answered accordingly.

Since the Court has already held that the land was never divested in favour of the Municipal Corporation by any notification, therefore, plaintiff’s right as the valid allottee pursuant to the resolution of the Gaon Sabha remained intact and so is the concurrent finding of both the Courts below.

Since the Municipal Corporation could never become the owner of the land, hence it was without any right to execute the lease deed in favour of the Waqf Vikas Nigam dated 26.6.2006. More so, it was undesirable for the Municipal Corporation to have executed the lease deed in favour of Waqf Vikas Nigam when order dated 24.3.2003 of temporary injunction was in force. Therefore, the Trial Judge was right in cancelling such allotment, while the learned First Appellate Court has gone wrong in sustaining such lease deed and setting aside the judgment of the Trial Court in this regard.

This substantial question is answered accordingly.

It is also pertinent to mention that the State Government has not preferred any appeal against the concurrent finding of both the Courts below pertaining to the longstanding possession of the plaintiff over the land in Khasra No. 190 and 191. So, this is also significant that the possession of the plaintiff over the land in controversy, which falls in Khasra No. 190 and 191, has been accepted by the State Government.

In view of what has been set forth above, Second Appeal No. 71/2012, preferred by the legal heirs of late Shri Kasim, is hereby allowed and the other three connected Second Appeals No. 61/2012, 67/2012 and 70/2012 are dismissed. Judgment and order of the Trial Court is sustained.

Let the LCRs be sent back.

Prabodh

(Servesh Kumar Gupta, J.)