Dharam Pal Vs. Iind A.D.J. and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - gangotri prasad is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law.anjani kumar, j.1. this writ petition is filed by the petitioner under article 226 of the constitution of india being aggrieved by the order passed by the revisional court whereby the revisional court allowed the revision and set aside the order passed by the trial court on the issue of jurisdiction as to whether the suit in question is triable by civil court or by revenue court,2. the facts in brief are that the petitioner filed a suit on the allegation that khedoo was co-bhumidhar of the land to dispute which is mentioned at the foot of the plaint, a copy whereof is annexed as annexure-1 to the writ petition. khedoo died and his interest was inherited by his widow sohbatta, respondent no. 3 in the writ petition, respondent no. 3, sohbatta, remarried with rajbali, resident of devapar. consequently her bhumidhari rights came to an end from the date of her remarriage. smt. sohbatta by three sale deeds dated 7.12.1965, 7.12.1965 and 15.2.1975 transferred her co-bhumidhari rights to respondent no. 2 and respondent no. 2 sold the same land to respondent no. 4, bhadesar. the plaintiffs case was that all the sale deeds were void and the defendant who had already remarried had no right to execute the said sale deeds. secondly, decree for cancellation of the said sale deeds was prayed for in the plaint. another prayer in the alternative was that if the transferees have come into possession of the land purchased by him they may be ejected from the land in dispute.3. the suit was contested by defendant nos. 1 and 2, i.e., respondent nos. 2 and 4 in the present writ petition. subsequent purchasers of the land defendant nos. 1 and 2, have pleaded by filing written statement that protection of section 53a of the transfer of properties act is available to them. another defence was taken that the suit is barred by section 5 of consolidation of holdings act. the trial court, on the basis of pleadings of the parties, framed as many as eight issues and decided issue of jurisdiction as a preliminary issue. the trial court by its order dated 4.9.1981, found that since the pleading is that sale deed is ab initio void inasmuch as smt. sohbatta who had admittedly remarried has no right subsisting in the land, therefore, the sale deed is void and if the sale is void the suit will lie in the civil court. the defendants contested this claim. the trial court, however, decreed the suit on the ground that smt. sohbatta has no right to execute the sale deed and further that smt. sohbatta was recorded tenure holder. therefore sale deeds are void. aggrieved thereby the defendants preferred revision. the revision was allowed by the revenue court.4. before me relying upon recent supreme court decision in shri ram and anr. v. first additional district judge and ors., 2001 (1) awc 862 (sc) : 2001 acj 497, it is argued that the view expressed by full bench in ram padarath v. second additional district judge, suttanpur, 1989 (1) awc 290 (lb) : 1989 acj 1, a full bench of allahabad high court considered this aspect of the matter and held thus :'we are of the view that the case of indra dev v. smt. ram pyari has been correctly decided and the said decision requires no consideration, while the division bench case, dr. ayodhya prasad v. gangotri prasad is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure holder is necessarily needed in which event relief for cancellation will be surpluses and redundant. a recorded tenure holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court.'5. thus, since the correctness of the full bench has not been challenged, in the subsequent case in gorakh nath dube v. hari narain singh and ors., 1990 all cj 179, it has been held by the apex court as under :'............but, where there is a document the legal effect of which can only be taken away by setting it aside or its 'cancellation', it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it......'6. learned counsel for the party relied upon the observation of the apex court in para 7 which is reproduced below :'on analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder, having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court -reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. he does not require declaration of his title to the land. the position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. there necessarily the plaintiff is required to seek a declaration of his title and therefore, he may be directed' to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession.'7. learned counsel for the petitioner further relied upon a decision of this court in kishori prasad v. iiird addl. district judge, varanasi and ors., 2002 (5) awc 4269 : 2003 (94) rd 36, wherein learned single judge of this court in para 12 has held as under :'12. question 1 (a) is decided in affirmative and it is held that recorded tenure holder can institute suit for cancellation, if considered to be void in view of plaint allegations, in a civil court. question no. 1 (b) is also decided in affirmative and it is held that an executant or his successor could file suit in civil court for cancellation of void document/ instrument. so far as question no. 1 (c) is concerned it is decided in negative and it is held that a third person, if he is not recorded tenure holder or executant of the sale deed or his predecessor/successor is not competent to institute suit in civil court in view of the fact that his claim necessarily involves declaration of his right, and the remedy lies in revenue courts only.'8. in this view of the matter the view taken by the revisional court deserves to be set aside and is hereby set aside. the writ petition succeeds and is allowed. the order passed by the revisional court is set aside. the matter is remanded to the revisional court to be decided in accordance with law and in the light of observations made in this judgment. since the matter is very old the revisional court is directed to decide the matter within three months from the date of presentation of a certified copy of this order.