Faraz Hussain v. State of U.P. and others), Writ C No on 16 May 2025

Judgment

2. All these writ petitions have been clubbed and heard together. In Writ C No. 661 of 2021 (Faraz Hussain vs. State of U.P. and others), Writ C No. 684 of 2021 (Asma Hussain vs. State of U.P. and others) and Writ C No. 687 of 2021 (Nadeem-Ur-Rehman and another vs. State of U.P. and others), order dated 14.08.2020 passed by the Sub Divisional Magistrate, Lucknow, District Lucknow in exercise of his powers under Section 33 read with Section 39 of the U.P. Land Revenue Act, 1901 (hereinafter referred to as the 'Act, 1901') by which he has corrected entries in the 'records of rights' (Khatauni) pertaining to Gata No. 93 situated in Village Jiamau, Tehsil Sadar, District Lucknow, is under challenge. Apart from it, notices issued by the Vice Chairman, Lucknow Development Authority, under Section 15 (9) of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the 'Act, 1973') have also been challenged.

3. In Writ C No. 7005 of 2023 (Abbas Ansari vs. State of U.P. and others), apart from the order dated 14.08.2020 referred above, an order page no. 3 dated 22.03.2021 has also been challenged which reiterates the decision taken in the order dated 14.08.2020. Apart from it, the petitioner of this writ petition has prayed for issuance of a writ of mandamus to the opposite parties not to interfere in his possession. Opposite party no. 6 in this petition is his brother who is said to have similar rights as the petitioners, in the property in question. Facts

4. Before proceeding further, we need to discuss the factual background leading to the impugned orders.

5. It is said that on 17.07.2020 the Secretary, Lucknow Development Authority wrote to the District Magistrate, Lucknow about certain facts which came to his knowledge regarding gata no. 93, whereupon, the District Magistrate, Lucknow sought a report regarding owners of the House No. 21/14A/1, 21/14B, 21/216A existing thereon. On 28.07.2020, an alleged Advocate on the panel of Gaon Sabha filed a complaint regarding fabricated entries in respect of the aforesaid Gata, which, according to him, was Evacuee Property. On 28.07.2020, the Sub Divisional Magistrate called for a report from the Tehsildar and on that very day the Tehsildar submitted a report before him inter alia stating that the property was recorded as Evacuee page no. 4 Property in 1362 Fasli, but, without any basis and without any order of the competent authority it came to be recorded in the name of Laxmi Narayan in 1369 Fasli and likewise without any basis or order of the competent authority in the 1380 Fasli it came to be recorded in the name of Krishna Kumar Kalra, who, transferred the properties to several persons, who ultimately came to be recorded, therefore, the entries require a correction, as, apparently, they were without any basis and were 'Farzi'. On 06.08.2020 the Sub Divisional Magistrate directed registration of a case based on the report of the Tehsildar and also for issuance of notice to the concerned, fixing 10.08.2020 as the next date in the proceedings. These proceedings were apparently registered in exercise of his powers under Section 33 read with Section 39 of the Act, 1901. On 10.08.2020, an order was passed for publication of notice in the newspapers fixing the next date as 13.08.2020 and on 14.08.2020, orders were reserved in the proceedings and on the same day the impugned order dated 14.08.2020 was passed. This order was passed after hearing the alleged counsel for the Gaon Sabha, none else.

6. By means of the impugned order dated 14.08.2020, the Sub Divisional Magistrate, Lucknow, District Lucknow has corrected the page no. 5 records pertaining to Gata/Plot No. 93 (5 Bigha, 3 Biswa, 10 Biswansi) situated in Village Jiamau, Tehsil Sadar, District Lucknow on the ground that the said Non-Z.A. land was an Evacuee Property as is mentioned in the Khatauni of 1362 Fasli (1955). This property was mentioned at Sl No. RHZ-1/1 of register No. 10 pertaining to Evacuee Properties which is maintained by the Board of the Revenue, U.P., as an Evacuee Property. Therefore, subsequent entries in favour of Laxmi Narayan in 1369 Fasli, Krishna Kumar Kalra in 1380 Fasli and 9 other persons to whom it was allegedly transferred, namely, Ahsan Ehtesam, Aslam Ehtesam, Syed Ata Kareem, Krishna Kumar Kalra, Smt. Naseema Kamal, Smt. Malka Begum, Smt. Pasmin Som Siddiqui, Smt. Wazida Begum and Hilal Ahmed, without any basis/without any order of the competent authority, were illegal and 'Farzi'.

7. Accordingly, apart from the name of Krishna Kumar Kalra, the names of all 9 (nine) persons who were recorded in respect of the said plot/gata has also been struck off and the entry of 1362 Fasli (1955) has been restored wherein Mohd. Wasim was recorded with the endorsement that the property was in possession of the Custodian Evacuee Property.

8. Now, the case of the petitioners in this regard is that the aforesaid plot of land, on which existed a bungalow bearing No. 7, in Dalibagh, Lucknow, was owned by Barrister Wasim who migrated to Pakistan. By page no. 6 a notification under Section 7 of the Administration of Evacuee Property Act, 1950 (hereinafter referred as the 'Act, 1950') dated 31.07.1950 the said property was declared an 'Evacuee Property'. As a consequence of the aforesaid declaration under Section 7, the property vested in the Custodian, that is why the endorsement in the Khatauni of 1362 Fasli (1955) regarding possession of custodian Evacuee properties.

9. There was cross-migration between India and Pakistan consequent to partition which took place in 1947, therefore, to rehabilitate displaced persons another enactment, namely, the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the 'Act, 1954') was promulgated to provide for the payment of compensation and rehabilitation grants to such persons and for matters connected therewith.

10. According to petitioners, aforesaid Gata no. 93 was acquired by the Central Government under Section 12 of the Act, 1954 for the purpose connected with relief and rehabilitation of displaced persons including payment of compensation to such persons by publishing a notification dated 26.11.1957 in this regard, which, as claimed, finds mention in the sale-certificates and certain judgments and decrees which are on record. page no. 7

11. According to them, on publication of such notification on

26.11.1957 under Section 12 (1) of the Act, 1954, the right, title and interest of any Evacuee in the Evacuee Property stood extinguished and the Evacuee Property vested absolutely in the Central Government free from all encumbrances. It ceased to be an Evacuee Property, as has been held by Hon'ble the Supreme Court in the case of Lieutenant Governor of Delhi and others vs. Matwal Chand (Dead) through Legal Representatives1.

12. It is also their case that the said land became part of the compensation pool referred under Section 14 of the Act, 1954. After rehabilitation and compensation to displaced persons, as the said plot of land still remained unutilized, therefore, it was put to auction and settled with persons such as Krishna Kumar Kalra, Hilal Ahmed, Ata Kareem, Raj Kumari Chopra, etc. though they were not displaced persons and it was permissible to do so under Section 20 of the Act, 1954.

13. According to them, it is in these circumstances that the aforesaid plot 93, parts thereof, were auctioned and sold to various persons and the sale-certificates were issues to them. Through these auction purchasers, petitioners claim to have acquired title and possession in respect of parts of plot no. 93. 1 2015 (15) SCC 576 page no. 8

14. In this very context, we may point out that the petitioner of Writ C No. 684 of 2021 (Asma Hussain) claims through one Hilal Ahmed who had purchased part of the said land in such an auction sale, as referred above, held on 05.07.1973, which is also the date of issuance of sale- certificate although it has been registered subsequently on 25.06.1979. The said petitioner claims to have purchased 4900 square feet of land which was settled in favour of Hilal Ahmed. The sale-deed in favour of Asma Hussain was executed and got registered by Hilal Ahmed on

24.06.1983. She says that thereafter she applied for permission/sanction of map under Section 15 of the Act, 1973 which was sanctioned on

22.07.1996. She thereafter built a house thereon and is residing in it. Hilal Ahmed is a person whose name finds mention in the order dated

14.08.2020 and in fact his name has been struck off from the Non-Z.A. khatauni and the earlier entry regarding the property being an Evacuee Property has been restored, as mentioned earlier. The fact that Hilal Ahmed was recorded in the Non-Z.A. khatauni is not in dispute but, we have not been told as to when said Hilal Ahmed came to be recorded in

the Non-Z.A. Khatauni for the first time and on what basis and under which category. She also claims to have been recorded in the Record of Rights as Bhumidhar with transferable rights and has annexed photocopy of Khatauni of 1402 Fasli (1996). page no. 9

15. The petitioner of Writ C No. 661 of 2021 - Faraz Hussain claims title/rights in the land/building in question through one Raj Kumari Chopra in whose favour aforesaid property was auctioned, similarly, on

06.09.1974. The sale-certificate is dated 06.09.1976 and it was registered on 16.11.1976. The said Raj Kumari Chopra executed a sale-deed in favour of Altaf Hussain father of Faraz Hussain (petitioner) and Irfan Hussain (uncle) on 09.06.1980 in respect of plot 10C (II) measuring 4000 square feet of land. On 05.02.2004 Irfan Hussain is said to have sold off 600 square feet of his share of land to his brother Altaf Hussain i.e. the father of the petitioner. Prior to it on 20.12.2003 it is said that a map was got sanctioned for construction of building and ultimately the father of the petitioner (Faraz Hussain) constructed a multi-storied apartment on plot no. 10C and in one of the flats the petitioner resides. Para 18 of his writ petition also mentions about other flat owners in the said apartment.

16. Now, Raj Kumari Chopra, the original predecessor in interest of Faraz Hussain was never recorded in the revenue records. Her name does not find mention even in the impugned order nor in the chart contained in para 20 of the counter affidavit filed in this writ petition which mentions about 9 recorded persons in respect of the aforesaid plot no. 93 and in sub-plots carved therefrom, whose name has been struck page no. 10 off. In this view of the matter, Faraz Hussain's case is slightly different from other cases as the order dated 14.08.2020 does not even mention the name of Raj Kumari Chopra. It being so why he has challenged the said order? Faraz Hussain claims prejudice because of issuance of notice dated 18.11.2020 for cancellation of the map based on the order dated

14.08.2020, that is why he has challenged the said order also and also, as, according to him the said order affects/prejudices his title to the land.

17. The petitioners of Writ C No. 687 of 2021 (Nadeem-Ur-Rehman and Naushad Alam) claim through Ata Kareem albeit not directly but through a line of successors in interest of Ata Kareem. It is said that on

05.07.1973, part of plot no. 93 was auctioned in favour of Ata Kareem. The sale certificate in his favour is dated 05.07.1973 but it was registered on 25.06.1979. Ata Kareem died in April 1984 leaving behind two sons and two daughters, namely, S.S. Ahmed Rizvi, Masood Ahmed Rizvi (sons), Rehana Markada and Raees Fatima (daughters). Raees Fatima gifted her share to her nephew Irfan Ahmed. S.S. Ahmed Rizvi and Irfan Ahmed executed a sale-deed in favour of the petitioners with respect to 4900 square feet of land. The petitioners applied for sanction of map for constructing a building on 29.06.2004 which was permitted and thereafter they built a multi-storied building wherein the petitioners also reside. The names of other flat owners are mentioned in para 17 of page no. 11 their writ petition. Ata Kareem is one of the persons whose name finds mention in the order dated 14.08.2020 and whose name has been struck off from the khatauni, as already mentioned. Here again we have not been told of the year/Fasli in which Ata Kareem first came to be recorded in the Non-Z.A. Khatauni and its basis nor the category under which he may have been recorded initially.

18. As regards petitioner of Writ C No. 7005 of 2003 - Abbas Ansari, he claims through Krishna Kumar Kalra, in whose favour, a sale- certificate was allegedly issued on 30.12.1969 and was registered on

07.02.1970, although, not directly, but, through a long chain of his successors in interest. The said sale-certificate does not mention the area of land purchased by Krishna Kumar Kalra though it mentions the boundaries of the land auctioned in his favour. As already referred, Shri Kalra was recorded in Non-Z.A. Khatauni in 1380 Fasli (1973) under category 5 (ka) i.e. illegal occupant without title. It is said that Krishna Kumar Kalra, after purchasing three bighas of plot no. 93M (0.713 hectares) in the auction-sale held under the Act, 1954, sold various portions thereof to different persons and on 19.05.1995 about 11992.61 square feet was sold to Shakeela Begum wife of Mohammad Ahmad. The said Shakeela Begum executed a registered sale-deed in respect of the aforesaid plot in favour of one Dr. Shahid Hussain on 05.02.2001. page no. 12 Dr. Shahid Hussain in turn executed a registered sale-deed on

09.03.2004 in favour of Mohammad Shubhan Ullah Ansari, the grandfather of petitioner and opposite party no. 6. Mohammad Shubhan Ullan Ansari in turn made an oral gift (Hiba) in favour of his wife Rabia Begum. It is said that Rabia Begum executed a registered will in favour of the petitioner and opposite party no. 6 bequeathing the said property to her grandsons, aforesaid. Neither Shakeela Begum nor any other successor in interest, including Mohammad Shubhanullah Ansari and Rabia Begum, were recorded in the revenue records.

19. The building/flat existing on the land purchased by the predecessor in interest of Abbas Ansari which allegedly belonged to Rabia Begum had already been demolished on 27.08.2020 in pursuance to an order dated 11.08.2020 passed by the Lucknow Development Authority, prior to filing of his writ petition, but, no relief has been sought regarding this action in his petition, though, a cursory reference has been made in para 42 of the petition regarding demolition of the building. We have already passed orders dated 15/16.01.2025 and 04.02.2025 in this regard.

20. After passing of the order dated 14.08.2020, the Sub Divisional Magistrate, Lucknow immediately communicated his order to the Secretary, Lucknow Development Authority as also to the District Magistrate, Lucknow which led to issuance of notices under Section 15 page no. 13 (9) of the Act, 1973 to the petitioners of three writ petitions i.e., Writ C No. 661 of 2021, Writ C No. 684 of 2021 and Writ C No. 687 of 2021, as to why their map in respect of the buildings existing on the aforesaid land, which had been sanctioned/permitted under Section 15 (1) of the Act, 1973, be not cancelled as they had made false statement and misrepresented the facts regarding their title to the land in question while applying for sanction of map. The said notices were issued on

18.11.2020 in all the above mentioned three writ petitions. We are not aware of issuance of any such notice to the petitioner of Writ C No. 7005 of 2023 - Abbas Ansari or his brother. Analysis and Conclusions

21. We have heard Shri M.A. Khan learned Senior Counsel assisted by Mohd. Aslam Khan for the petitioner in Writ - C No. - 7005 of 2023, Shri J.N. Mathur, learned Senior counsel assisted by Shri Rajesh Chandra Mishra, Shri Mudit Agarwal and Ms. Aishwarya Mathur for petitioners in other petitions, Shri Shashi Prakash Singh, learned Additional Solicitor General of India assisted by Shri Deepanshu Das, learned counsel for the Union of India, Shri Ajay Kumar Mishra, learned Advocate General assisted by Shri Kuldeep Pati Tripathi, learned Additional Advocate General, Shri Sudhanshu Srivastava, Shri Ishan Mehta, learned Additional Chief Standing Counsel for the State of U.P., page no. 14 Shri Shailendra Kumar Singh, learned Chief Standing counsel, Shri Tushar Verma, learned Additional Chief Standing counsel, Shri Vivek Kumar Shukla, learned Additional Chief Standing counsel for the State of U.P., Shri Gaurav Mehrotra, learned counsel for the opposite party no. 6 in Writ- C No. 7005 of 2023, Shri Ratnesh Chandra, learned Counsel for the Lucknow Development Authority and Shri S.S. Chauhan, learned counsel for Nagar Nigam.

22. The contention of the rival parties shall be dealt with while discussing and deciding various issues which have arisen for our consideration.

23. Land bearing plot no. 93, which is subject matter of these writ petitions, is, as per the impugned order, a 'Non-Z.A.' land. The Khatauni which has been corrected is also referred as non-Z.A. Khatauni.

24. To understand the meaning of Non-Z.A. land or Non-Z.A. Khatauni we need to point out that a zamindari system was prevalent for collection of revenue in Agra and Oudh Region which was governed by an enactment known as United Provinces Tenancy Act, 1939 (hereinafter referred as the 'Act, 1939'). This Act, 1939 related to agricultural tenancies and matters connected therewith in the aforesaid Region. Zamindari came to be abolished in some of the rural areas by U.P. page no. 15 Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred as the 'ZA Act, 1950'). Likewise, in certain urban areas zamindari was abolished by the Urban Zamindari Abolition and Land Reforms Act, 1956 (hereinafter referred as the 'Urban ZA Act, 1956'). Both these Acts repealed the Act, 1939 but only in respect of areas to which they were made applicable. The areas, rural or urban, in which zamindari had not been abolished are known as Non-Z.A. land and khataunis in respect thereof as Non-Z.A. khataunis. These lands are governed by the Act,

1939. Thus, even after promulgation of the ZA Act, 1950 and the Urban ZA Act, 1956, the Act, 1939 continued to be applicable to Non-Z.A. lands. Land in respect to which zaminidari was abolished by ZA Act, 1950 or Urban ZA Act, 1956 are known as Z.A. land and they are governed by these Acts. Applicability of the Act 1939, the Act 1901 and Ancillary Issues

25. In the context of challenge to orders dated 14.08.2020 and

22.03.2021, one of the issues which arose during the course of argument was as to whether the Act, 1939 and the Act, 1901 would be applicable to the land in question i.e. Plot No. 93 (Non-Z.A. land), which falls in an urban area i.e. in a municipality or municipal corporation with buildings existing thereon and whether Khataunis are at all required to be prepared page no. 16 in respect thereof and whether there was any requirement for the petitioners to get their names mutated therein.

26. It was argued by Shri Mathur on behalf of the petitioners that there are buildings existing on plot no. 93, one of which has been demolished, therefore, the land in question is not a land referable to Section 3 (10) of the Act, 1939 nor a 'holding' under Section 3 (7) of the said Act, consequently no khewats or khataunis were/are required to be prepared in respect thereof, as such, the entire exercise of preparation of khataunis and correction of records by the impugned order is non-est. Taxes are payable under the Act, 1959 to the Municipal Corporation where his clients were are recorded and in fact there was no requirement for the petitioners to get their names mutated in the revenue records which have been unnecessarily corrected by the impugned orders.

27. These pleas have not been specifically taken in the pleadings in any of the writ petitions except for a cursory reference in Abbas Ansari's case that the land being part of Municipal Corporation, Lucknow, it alone had jurisdiction in such matters.

28. We may point out that one of the petitioners Asma Hussain claims to have got her name recorded in Khatauni and has annexed photocopy thereof relating to 1462 Fasli (1955) and it is not in dispute that Hilal page no. 17 Ahmed, Ata Karim and Krishna Kumar Kalra alleged predecessors in interest of other petitioners were all recorded in the Non-Z.A. Khatauni pertaining to the land in question. These facts apparently belie the assertion of the petitioners as noted above.

29. Further, there is no challenge to the Non-Z.A. khataunis which admittedly have been prepared in respect of this very land right from the 1359 Fasli till 1472 Fasli and in which predecessor in interest of most of the petitioners were recorded, so was one of the petitioners Asma Hussain, as claimed by her.

30. There is no pleading in any of the writ petitions that Zamindari was not abolished in respect of the land in question.

31. Section 3 (10) of the said Act, 1939 defines 'land' to mean land which is let or held for growing of crops, or as grove-land or for pasturage. It includes land covered by water used for the purpose of growing singhara or other produce, but does not include land for the time being occupied by buildings or appurtenant thereto other than buildings which are improvements. 'Improvements' are defined in Section 3 (8) which reads as under: "(8) "improvement" means with reference to a tenant's holding : (i) a dwelling-house erected on the holding by the tenant for his own occupation or a cattle shed or a store-house or any other page no. 18 construction for agricultural purposes erected or set up by him on his holding; (ii) any work which adds materially to the value of the holding and is consistent with the purpose, for which it was let, and which, if not executed on the holding, is either executed directly for its benefit or is after execution made directly beneficial to it; and, subject to the foregoing provisions of this clause, includes - (a) the construction of wells, water channels and other works for the supply or distribution of water for agricultural purposes; (b) the construction of works for the drainage of land, or for the protection of land from floods, or from erosion or other damage by water; (c) the reclaiming, clearing, enclosing, or levelling of land; (d) the erection in the immediate vicinity of the holding otherwise than on the village site, of buildings required for the convenient or profitable use or occupation of the holding; (e) the construction of tanks or other works for the storage of water for agricultural purposes; (f) the renewal or reconstruction of any of the foregoing works, or such alterations therein, or additions thereto, as are not of the nature of mere repairs: Provided that such water channels, embankments, enclosures, temporary wells, or other works are made by tenants in the ordinary course of cultivation shall not be deemed to be improvements."

32. Except buildings which are 'improvements', other buildings are not included in the definition of 'land' under Section 3 (10). 'Improvements' as defined in Section 3 (8) are included in such definition of land.

33. Section 3 (7) of the Act, 1939 defines 'holding' to mean a parcel or parcels of land held under one lease, engagement or grant, or in the page no. 19 absence of such lease, engagement or grant under one tenure and in the case of a thekedar includes the theka area.

34. Section 21, mentions seven categories of tenants. Sections 22 to 31 explain as to what is meant by the tenancies referred therein.

35. Whether the land in question bearing plot no. 93 was a 'land' referred under Section 3 (10) of the Act, 1939 or a holding under Section 3 (7) or not, in the year 1369 Fasli (1962) and 1380 Fasli (1973), as, essentially, it is in these Faslis that the error is alleged to have occurred in the records pertaining to Laxmi Narayan and Krishna Kumar Kalra as per the opposite parties, is not a purely legal question. It will involve a factual inquiry as to the nature of land and the 'use' to which it was being put in the relevant years and it may involve scrutiny of relevant records relating to the those and earlier years.

36. Such issues about the nature of the land or the use to which it was being put in 1359 Fasli (1952), 1362 Fasli (1955) as also 1369 (1962) and 1380 Fasli (1973) when Laxmi Narayan and Krishna Kumar Kalra came to be recorded for the first time under category 5 (Ka) of Para 124A of the Land Records Manual read with Section 32 of the Act, 1901, or thereafter, can not be adjudicated in summary proceedings under Article 226 of the Constitution of India. Correction in the entries page no. 20 of the subsequent years or Faslis (upto 1472 Fasli) is only consequential to the correction in Non-Z.A. Khatauni of 1369 Fasli and 1380 Fasli and restoration of entry of 1362 Fasli which contained the remark that the property was in the possession of custodian evacuee properties.

37. Neither the petitioners nor the opposite parties have disclosed the Fasli when Hilal Ahmed and Ata Kareem came to be first recorded. Land use would have to be seen in respect of the Fasli when these persons came to be recorded, but, we have not been informed about these facts with supporting proof.

38. When we peruse Section 3 (10), as already noticed, it excludes land for the time being occupied by buildings or appurtenant thereto other than the buildings which are improvements. 'Improvement' as already noticed has been defined in Section 3 (8) of the Act, 1939. No such foundation has been laid down in any of the writ petitions with supporting proof that the land ceased to be a 'land' within the meaning of Section 3 (10) of the Act, 1939 or holding under Section 3 (7), if so, when, nor that there was absolutely no requirement in law to maintain the khewats or khataunis in respect thereof. Such an issue in the very nature of things requires evidence to be led that too relating to the year 1359 Fasli and onwards, especially 1369 Fasli, 1380 Fasli. page no. 21

39. In fact, a copy of the sale-deed dated 02.03.1997 annexed by petitioner - Abbas Ansari, which relates to plot no. 93 and which is said to have been executed by Krishna Kumar Kalra son of Thakurdas in favour of Smt. Shakeela Begum, mentions that 'Mohd. Wasim was owner of urban agricultural khasra no. 93 area 8 Biswa, 16 Biswansi, 4 Kachwansi in Village Ziamau, Tehsil Lucknow, situated within Corporation limits'. The sale-deed goes on to mention that the plot is situated in the shape of 'Gaddha' and is used for agricultural purposes etc.

40. There is no undisputed proof regarding nature of the plot in the 1359, 1362, 1369 and 1380 Fasli. Mere existence of Bungalow thereon belonging to Mohd. Wasim would not by itself take it out of the purview of definition of 'land' or 'holding' under the Act, 1939 if it was an improvement, especially in view of the recital in the sale-deed dated

02.03.1997 referred above.

41. The sale-deed dated 09.03.2004, copy of which has also been annexed by petitioner - Abbas Ansari with his rejoinder affidavit, which was executed by Dr. Shaheed Hussain, who had purchased it from Shakeela Begum, in favour of Shubhanullah Ansari states that the land is residential and is wholly undeveloped with 12 to 14 feet deep ditches therein. We cannot determine the veracity of these recitals in exercise of page no. 22 writ jurisdiction.

42. Nothing has been stated in the pleadings as to when the land became part of a Development Area, if any, declared under the Urban Planning and Development Act, 1973.

43. A notification dated 11.09.1974 was placed before us according to which 'Lucknow Development Area' comprised of limits of Municipal Corporation and also an area of 8 Km around it in all four directions.

44. Declaration of Development area under the Act, 1973 merely means that the area is required or proposed to be developed. It does not mean that it has already been developed. This is evident from the Act, 1974 and notification dated 11.09.1974 itself.

45. Land use of plot no. 95 measuring 5 Bigha, 3 Biswa and 10 Biswansi, that too, from 1362 Fasli onwards can not be decided/determined in these proceedings which are of summary nature.

46. We must reiterate that the exercise impugned herein does not relate only to the correction of records of 1427 Fasli (2020) or immediately preceding the same, in fact, its genesis lies in the records relating to 1362 Fasli, 1369 Fasli and 1380 Fasli (1973). Rest is consequential. There is a time period of 47 years in between. We do not know when the page no. 23 nature of land/holding changed from one referable to Section 3 (7) and Section 3 (10) of the Act, 1939 to any other land, if at all it changed; whether the buildings, etc. were improvements in terms of Section 3 (8) or were buildings excluded by Section 3 (1) of the Act, 1939.

47. No doubt Plot no. 93 is situated in village Jiamau. It now forms part of an area which is referred as Dalibagh and falls within Ram Manohar Roy ward of the Municipal Corporation, Lucknow. The counsel for the Municipal Corporation, Shri S.S. Chauhan, placed before us a notification dated 09.03.1912 as also the Schedule appended to it, wherein the boundaries of Lucknow Municipality were delineated and Village Jiamau finds mention therein, meaning thereby, at least since 9th of March, 1912 Village Jiamau became part of Lucknow Municipality. At that time the Municipalities were governed by an enactment known as United Provinces Municipalities Act, 1900 as amended from time to time. On 24.06.1916, the U.P. Municipalities Act, 1916 was published. Jiamau was part of Lucknow Municipality prior to coming into force of the Act, 1916 and continued to be so thereafter. In fact, even today, it is part of the Lucknow Municipal Corporation and in this context we may mention that ultimately the Municipal Corporation Act, 1959 was enacted which came into force in the same year. Shri Chauhan, learned counsel for the Municipal Corporation has placed before us a page no. 24 notification dated 11.02.1959 delineating the boundaries of Municipal Corporation, Lucknow constituted under the Act, 1959 along with a map. The limits of the City of Lucknow have been demarcated and the area falling within it constituted the limits of Municipal Corporation, Lucknow. There is a map annexed with it. A notification dated

03.10.1974 was also placed before us, which is on record, according to which Ram Manohar Roy Road was part of Wart No. 2, Hazratganj. Part IX of the Constitution of India dealing with Municipalities as also Municipal Corporation Act, 1959 were relied by the petitioners' counsel in this regard.

48. However, there is nothing in the Act, 1939 which excludes its application to an area or land merely because it is within a municipality, Town Area or Cantonment Board. There could be land or holding, as defined in the Act, 1939, within such area.

49. As already stated, none of the khataunis prepared since 1359 Fasli which are Non-ZA khataunis have been put to challenge in any proceedings or in these proceedings on the ground that these khataunis were not liable to be prepared as the land was not Non-ZA land. In fact, it is the Khewats which are prepared in respect of Non-ZA land and then the Khataunis but then there is no challenge in respect thereof also. page no. 25

50. In respect of Non-ZA lands the khewats and khataunis are maintained as would be evident from the U.P. Land Revenue Act, 1901 and the U.P. Land Records Manual which have already been referred. We may in this regard refer to Para 174 of the Land Records Manual which refers to preparation of Khewats in respect of Non-ZA lands and also khataunis as is referred in Para 618-3 (A) of the said Manual. According to Para 123 (i), 441, 618-3 (A) (F) (5) khatauni shall be prepared only for the khewats. Para 254 of the U.P. Land Records Manual refers to preparation of mutation reports in respect of ZA and Non-ZA land both in terms of the U.P. Land Revenue Act, 1901. Para 585 (5) of the said Manual refers to testing of khewats and comparison of khataunis with errata list in the area to which the U.P. Zamindari and Land Reforms Act, 1950 does not apply, therefore, this refers to preparation of khewats, etc. in respect of Non-ZA land as such even where the Act, 1939 applies khewats and khataunis have to be prepared. Para 124A of the U.P. Land Records Manual shows that Category 6-A of land is Grove land, Category 9 (ii) refers to sites, roads, railways, buildings and lands put to non-agricultural uses. Section 32 of the Act, 1901 provides that Record of Rights shall consist of a register of all persons cultivating or otherwise occupying and specifying the particulars required by Section 55. There are various procedures relating page no. 26 to preparation of khewats and khataunis in respect of Non-Z.A. land i.e. land to which the Act, 1939 applies such as detailed in the Land Record Manual. The question as to whether the Act, 1939 applies to the property in question or not has already been dealt with earlier.

51. Pertinently the Act, 1939 only determines tenancy/tenures in respect of Non-Z.A. lands. Land Records including khataunis are not prepared under the Act, 1939. Every District in Uttar Pradesh is a Revenue District. Land records in such districts are maintained as per the Act, 1901 and under the U.P. Revenue Code, 2006 read with U.P. Land Records Manual. Determination of classes of land or arrangement of holdings is not done under the Act, 1939. It is done under the U.P. Land Records Manual prepared under Section 243 (1) (b) of the Act, 1901. Arrangement of Non-Z.A. land or holdings or their classification is as per Para 124A of the said Manual. The U.P. Land Records Manual continues to be applicable even after promulgation of U.P. Revenue Code, 2006 by virtue of Section 234 (3) thereof.

52. The land in question has been treated as Non-ZA land for the past several decades khataunis have also been prepared as Non-ZA khataunis none of which have been put to challenge by the petitioners earlier or in these proceedings, therefore, it is difficult for this Court rather it is impossible for it, considering the constraints of writ jurisdiction and the page no. 27 summary proceedings before it, to record any such finding as to whether khataunis or khewats in respect thereof were required to be prepared or not, in the absence of requisite pleadings and proof, especially as, these issues could have far reaching consequences on the maintenance of records of ZA and Non-ZA land.

53. This issue cropped up during course of hearing, but, requisite pleadings and proof in this regard by either of the parties are absent. We, therefore, find ourselves unable to record any such opinion that the land in question merely because it was a part of municipal limits in the relevant Faslis, it ceased to be a land or holding as referred in the Act, 1939 or that the Act, 1939 was not applicable. Repeal of the Act, 1901 by Section 230 of the Code, 2006, its saving in the context of application of Act, 1939 and Section 38 of the Code, 2006

54. Another issue raised by Shri Mathur and Shri Khan on behalf of the petitioners was as to whether the Act, 1901 under which the impugned orders 14.08.2020 and 22.03.2021 have been passed was available for exercise of power of correction of records by the Sub Divisional Magistrate, as it had been repealed by Section 230 of the Code, 2006, which came into force on 11.02.2016.

55. Section 230 of the Code, 2006 repeals the enactments specified in the First Schedule thereof which includes ZA Act, 1950, the Urban ZA page no. 28 Act, 1956 and the Act, 1901. Sub-Section 2 of Section 230 provides that notwithstanding anything contained in sub-Section (1), the repeal of such enactments shall not affect inter alia - '(c) any other enactment in which such enactment has been applied incorporated or referred to'. The Act, 1901 has been applied and referred to in the Act, 1939 when referring to maintenance of registers and recording of entries in the records. There is repeated reference to the Act, 1901 in the Act, 1939 viz. in Sections 3 (15) Section 3 (16), Section 256 (2) and in Section 24 regarding presumption from entry at revision of records, the date first day of January, 1902 mentioned therein is the date on which the Act, 1901 came into force as is mentioned in Section 1 (3) thereof. For the purposes of Non-Z.A. areas the Act, 1901 was the enactment under which the revenue records were maintained, the corrections therein were undertaken. There was no other enactment in this regard. Section 3 (16) of the Act, 1939 defines "recorded" to mean recorded in a register maintained under the provisions of Section 32 of the United Provinces Land Revenue Act, 1901. Thus, what it means is that, the registers were to be maintained in respect of the areas to which the Act, 1939 applied, as per the Act, 1901, which is also evident from Section 3 (15) of the Act, 1939. A fortiori correction in such records would also be made page no. 29 under the Act, 1901 as there is no such provision in the Act, 1939 and the same would not be affected by Repeal of the Act, 1901.

56. The Code, 2006 does not repeal the Act, 1939 in its application to Non-Z.A. land, therefore, the Act, 1939 continues to apply to such land, and, in view of Section 230 (2) C of the Code, 2006, the Act 1901 also continues to apply in the context of application of the said Act, 1939 to Non-Z.A. land.

57. The issue regarding applicability of the Act, 1939 to Plot No. 93 has already been discussed earlier. Buildings excluded in Section 3 (10) of the Act, 1939 would be excluded from the applicability of the Act, 1939 and consequently the Act, 1901, in this context, but, as stated earlier, we do not have requisite pleadings and material to decide as to what were the buildings, if any, existing in 1359 Fasli, 1362 Fasli, 1369 Fasli or 1380 Fasli and if any buildings came up on the land forming part of plot no. 93, the dates on which the said buildings came up, what was the nature of the said buildings, how far they were covered by the definition of 'improvements' which are included in Section 3 (10) read with Section 3 (8) of the Act, 1939, what was the nature of the land bearing Gata No. 93, when did its use change from agricultural use, if at all, when the area was actually developed, as already discussed earlier, therefore, this issue of non-applicability of Act 1901 is intertwined with page no. 30 the said issue.

58. Further, as per Section 2 of the U.P. Revenue Code, 2006 except Chapter VIII and IX, rest of the provisions of the Code, 2006 have been made applicable to the entire State of U.P. Application of Chapter VIII and IX of the Code, 2006 has been restricted to the areas to which the ZA Act, 1950 and the Urban ZA Act, 1956 were applicable. Chapter VIII and IX of the Code, 2006 deal with 'Management of land and other properties by Gram Panchayat or other local authority' and 'Tenures' respectively, meaning thereby, these chapters apply only to areas where Zamindari was abolished by the ZA Act, 1950 and Urban ZA Act, 1956 and not to other areas, but the remaining provision of the Code, 2006 apply to the entire State of U.P., including Non-Z.A. lands (where zamindari was not abolished), therefore, Section 38 of the Code, 2006, dealing with corrections of errors or omission in records will apply to Non-Z.A. areas also. Thus, the exercise for correction of records in respect of old records and the existing records could still be undertaken under Section 38 of the Code, 2006, as such, merely on this count i.e. alleged repeal of Act 1901, we would not invalidate the impugned orders. The contention of Shri Gaurav Mehrotra that passing of an order under a repealed provision is different from a case where an order is passed under a wrong provision, is not acceptable in the facts of this page no. 31 case. Scope of proceedings for correction of land records and its impact on questions of title, right to possession, etc.

59. As regards the contention of learned counsel for the petitioners that the impugned orders have veritably decided and nullified their title to the land/building, revenue entries by themselves do not decide title, especially entries or corrections which are referable to Section 33 (2) (b) of the Act, 1901 which are not based on succession or transfer as is evident from the proviso to said sub-Section according to which such changes shall not be construed as a decision on a dispute involving question of title. Corrections impugned herein are referable to Clause (b) of Section 33 (2). Likewise is the proviso to sub-Section (2) of Section

39. Similarly the explanation to Section 38 of the Code, 2006 makes it clear that power to make correction under Section 38 does not empower the authority to decide a dispute involving questions of title. In this context Section 40A of the Act, 1901 and Section 39 of the Code, 2006 are also relevant. Therefore, any such exercise for correction of records under the aforesaid provision, as has been undertaken in this case, can not by itself confer nor deprive any person of title in respect to land in question. page no. 32

60. Hon'ble the Supreme Court in the case of Bhimabai Mahadeo Kambekar (Dead) through Legal Representative vs. Arthur Import and Export Company and Others2 referring to the earlier decisions of Hon'ble the Supreme Court in Swarni (Smt.) vs. Inder Kaur (Smt.) and others3, Balwant Singh and another vs. Daulat Singh (Dead) by Lrs. and others4 and Narasamma vs. State of Karnataka and others5 succinctly clarified the law in this regard as under: "5. The law on the question of mutation in the revenue records pertaining to any land and what is its legal value while deciding the rights of the parties is fairly well settled by a series of decisions of this Court.

6. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title." In the case of Corporation Of The City Of Bangalore vs M. Papaiah And Anr.6, it has been held that "it is firmly established that the revenue records are not documents of title......" In the case of State Of Himachal Pradesh vs Shri Keshav Ram And Ors7, it was held that "an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title........" 2 3 4 5 6 7