# C/M, Imambara Qadeem, Manauri, Prayagraj & Anr v. Union of India & Ors

- **Citation:** (2022) 8 ILRA 149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-04
- **Case number:** Writ C No. 10374 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-imambara-qadeem-manauri-prayagraj-anr-v-union-of-india-ors-48729
- **Pages:** 5

## Headnote

A. Civil Law-Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950Sections
9
&
117(6)-Quashing
of
notification -Petitioner's case is that the
State wish to illegally and arbitrarily take
possession of the 1500 square meters of
land by invoking powers of resumption
u/s 117(6) of the Act-Petitioners claim to
150 INDIAN LAW REPORTS ALLAHABAD SERIES
be a hundred years old Imambara was in
existence on the date of vesting that was
settled with the petitioners u/s 9 of the
Act, cannot be resumed u/s 117(6) of the
Act-Petitioners failed to produce any
evidence to show that on the date of
vesting,
the
said
Imambara
was
in
existence-Hence, the petitioners are not
entitled to claim benefit of Section 9 of
the Act-Moreso, Petitioners challenged the
notification for the delay of 10 years-delay
condone not acceptable as a clearly entry
of the impugned notification issued by the
State
Government
is
shown
in
the
Khatauni relating to property in disputeOnce the impugned notification has been
published in the Gazette, constructive
knowledge of its contents has to be
imputed to one in all, including the
petitioners-Thus, the petitioners cannot
plead ignorance about the existence of
notification.(Para 1 to 15)

The writ petition is dismissed. (E-6)

List of Cases cited:

Basti Ram Vs Nagar Nigam, Ghaziabad &
anr.(1999) SCC OnLine All 1850

## Text

8 All. C/M, Imambara Qadeem, Manauri, Prayagraj & Anr. Vs. Union of India & Ors.
149

18. Thus, from the above, we find that
the conduct of the respondent Nos. 2, 3 and
5 in not facilitating the execution of the
lease deed in favour of the petitioner cannot
be approved. There was thus total failure on
the part of the said respondents and they
were certainly deficient in rendering
service in terms of the obligations, they
were expected to perform.

19. The endeavour of a Constitutional
Court must always be to ensure that
everyone gets just and fair treatment.
Constitutional
Courts
while
rendering
justice must adopt a pragmatic approach
and in appropriate cases realistic costs and
compensation
must
be
ordered
to
discourage dishonest action. In the case at
hand, we find that the petitioner had
deposited a sum of Rs.62,09,59,254/-
towards the entire allotment money way
back in the year 2011-12, but the
respondent-Authority did not execute the
lease deed of the plot allotted to the
petitioner nor handed over possession of
the same and now have proceeded to cancel
the allotment and forfeit the amount
entirety.

20. We are, thus, of the view that in
the given set of facts that stand attracted to
the case of the petitioner, the petitioner is
entitled to the refund of the entire amount
of the allotment money deposited with the
respondents-Authority.

21. Accordingly, the writ petition is
allowed. The order dated 12.3.2021 passed
by the respondent No. 3-Deputy General
Manager
(Commercial),
New
Okhla
Industrial Development Authority, NOIDA,
so far as it forfeits the amount deposited by
the petitioners in respect of the plot No.
CC-4, Sector-32, NOIDA, is set aside. The
respondent No. 2- New Okhla Industrial
Development Authority, NOIDA is directed
to refund the amount of Rs.62,09,59,254/-
within 45 days from the date of service of
certified copy of this order before it.

22. So far as the interest part is
concerned, at this stage, we are not passing
any order, leaving it open to the petitioner
to prefer an appropriate application before
the competent authority of the respondent.
In the eventuality of such an application
being filed, it is expected from the
authority to pass appropriate orders after
considering all aspects of the matter
strictly, in accordance with law.
----------
(2022) 8 ILRA 149
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Writ C No. 10374 of 2022

C/M,
Imambara
Qadeem,
Manauri,
Prayagraj & Anr. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri V.M. Zaidi (Senior Adv.), Sri S.M.A. Iqbal
Hasan, Sri M.J. Akhtar

Counsel for the Respondents:
Sri Manish Goel (Addl. A.G.), Ms. Akansha,
Sharma (S.C.), Sri Pranjal Mehrotra

A. Civil Law-Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950Sections
9
&
117(6)-Quashing
of
notification -Petitioner's case is that the
State wish to illegally and arbitrarily take
possession of the 1500 square meters of
land by invoking powers of resumption
u/s 117(6) of the Act-Petitioners claim to
150 INDIAN LAW REPORTS ALLAHABAD SERIES
be a hundred years old Imambara was in
existence on the date of vesting that was
settled with the petitioners u/s 9 of the
Act, cannot be resumed u/s 117(6) of the
Act-Petitioners failed to produce any
evidence to show that on the date of
vesting,
the
said
Imambara
was
in
existence-Hence, the petitioners are not
entitled to claim benefit of Section 9 of
the Act-Moreso, Petitioners challenged the
notification for the delay of 10 years-delay
condone not acceptable as a clearly entry
of the impugned notification issued by the
State
Government
is
shown
in
the
Khatauni relating to property in disputeOnce the impugned notification has been
published in the Gazette, constructive
knowledge of its contents has to be
imputed to one in all, including the
petitioners-Thus, the petitioners cannot
plead ignorance about the existence of
notification.(Para 1 to 15)

The writ petition is dismissed. (E-6)

List of Cases cited:

Basti Ram Vs Nagar Nigam, Ghaziabad &
anr.(1999) SCC OnLine All 1850
(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. The petitioners, who are the
Committee
of
Management
of
the
Imambara Qadeem, Manauri and its
Secretary, have moved this Court to quash
the notification dated 28.06.2012, issued by
the Government of U.P., insofar as it
resumes the petitioner's land, situate in Plot
No. 146, admeasuring 1500 square meters,
Village Manauri, District Prayagraj.

2. The aforesaid notification has been
issued by the State Government in exercise
of their powers under Section 117(6) of the
Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 (for short, 'the
Act') to the extent it adversely affects the
petitioners. The said notification shall be
referred to hereinafter as the 'impugned
notification'.

3. The petitioners' case in brief is that
the second petitioner is a native of Village
Manauri, Tehsil Sadar, District Prayagraj.
He and his forefathers have lived in the
said village since a very long time. The
second petitioner's father constructed a
building known as Imambara Qadeem over
an area 1500 square meters, situate on Plot
No.146. The aforesaid Imambara is said to
be more than 100 years old. The aforesaid
property has now come down to the second
petitioner from his forefathers. He is now
managing the affairs of the Imambara
along with some members of the religious
community, to which he belongs. The
second petitioner and other members of the
community
formed
a
Committee
of
Management, which this Court gathers to
be a society of sorts. The pleadings about
the precise legal character of the body that
manages the affairs of the Imambara are
vague and non-descript.

4. The short case of the petitioners is
that the State wish to illegally and
arbitrarily take possession of the 1500
square meters of land in Plot No.146, and
for the purpose, have invoked their powers
of resumption under Section 117(6) of the
Act. This they have done through the
impugned notification. The petitioners had
earlier moved this Court through Writ - C
No.30758 of 2021 without laying any
challenge to the impugned notification or
any reference to it. The case taken in the
aforesaid writ petition was that the State
and the respondent Authorities may be
forbidden from taking possession of Plot
No.146, above described (for short, 'the
property in dispute'), which the respondents
8 All. C/M, Imambara Qadeem, Manauri, Prayagraj & Anr. Vs. Union of India & Ors.
151
were moving to take possession of for the
purpose of Railways, without proceedings
for acquisition or requisition. The second
petitioner, therefore, sought the following
material reliefs in Writ - C No.30758 of
2021:

(A). Issue a writ, order or
direction in the nature of mandamus
commanding and directing the respondent
authorities to not to acquire and taken
possession of the land Gata No.146
measuring
area
1500
sq.meter
approximately the structure constructed on
the land.

(B). Issue a writ, order or
direction in the nature of mandamus
commanding and directing the respondent
authorities not to take any coercive
measure against the petitioner.

5. It is the petitioners' case that it was
through
the
counter
affidavit
dated
18.12.2021 filed in Writ - C No.30758 of
2021 on behalf of the Union of India and
the
Mukhya
Pariyojna
Prabandhak,
Dedicated Freight Corridor Corporation of
India, Prayagraj that the petitioners came to
know about the impugned notification
issued by the State Government resuming
the property in dispute. Accordingly, they
have instituted the present writ petition
challenging the said notification.

6. Writ - C No.30758 of 2021 has also
come up today along with this writ petition
and in view of the fact that the petitioners
have
now
challenged
the
impugned
notification, the aforesaid writ petition was
withdrawn, which we have permitted to be
withdrawn by an order of date passed in the
said writ petition.

7. Assailing the impugned notification,
Mr. V.M. Zaidi, learned Senior Advocate
assisted by Mr. S.M.A. Iqbal Hasan, learned
Counsel for the petitioners submits that the
property in dispute is recorded as abadi and
being a building, would be deemed to be
settled with the petitioners under Section 9 of
the Act. According to the learned Counsel,
abadi sites, particularly, buildings do not vest
in the Gaon Sabha, so as to be amenable to
the State's power of resumption under subSection (6) of Section 117 of the Act. It is
argued that the second petitioner and his
forefathers have been in occupation of the
property in dispute for the past 100 years and
more, and they have constructed the building,
where the Imambara is situate, also more
than 100 years ago. In the circumstances, on
the date of vesting, that is to say, 7th July,
1949, the Imambara being a building held by
the second petitioner and his forefathers, it
shall be deemed to have been settled with
them by the State Government. According to
the learned Senior Advocate appearing for the
petitioners, the property in dispute being a
building and not any of the 'things' specified
under Clauses (i) to (vi) of sub-Section (1) of
Section 117 of the Act, cannot be held to have
ever vested in the State, and by a declaration
of the State, in the Gaon Sabha. As such, the
property in dispute, that is settled under
Section 9 of the Act with the second
petitioner and his forefathers, cannot be
resumed under sub-Section (6) of Section 117
of the Act.

8. Mr. Manish Goel, learned Additional
Advocate General assisted by Ms. Akansha
Sharma, learned Standing Counsel, appearing
for respondent nos.2, 4, 5 and 6 and Mr.
Pranjal Mehrotra, Advocate appearing on
behalf of respondent nos.1 and 3, have
opposed the motion to admit this petition to
hearing.

9. Mr. Goel has submitted that for one
the petition is highly belated with an
152 INDIAN LAW REPORTS ALLAHABAD SERIES
enormous laches to confront. It ought to be
dismissed on that ground alone. It is further
argued that upon merits, the petitioners
have prima facie not produced any
evidence to show that on the date of
vesting, the building, that is said to house
the Imambara, was in existence. As such,
according
to
the
learned
Additional
Advocate General, the petitioners are not
entitled to claim benefit of Section 9 of the
Act.

10.

We
have
considered
the
submissions advanced on both sides and
carefully perused the record. We find that
the impugned notification being one of the
year 2012, a challenge to it 10 years later,
would require the petitioners to explain
why they did not come up earlier assailing
it. All that we find for an explanation is a
rather unconvincing case set out in
Paragraph No.18 of the writ petition, where
it is said that prior to filing the earlier writ
petition (Writ - C No.30758 of 2021),
petitioner no.2 had no knowledge about the
impugned notification. He came to know of
the same when the respondents filed a
counter affidavit in the last mentioned writ
petition. It is said that from the aforesaid
facts,
we
should
infer
a
case
of
circumstances
beyond
the
petitioners'
control in the matter of delay and condone
the laches. The petitioners' explanation is
stated to be rejected.

11. Once the impugned notification
has been published in the Gazette,
constructive knowledge of its contents has
to be imputed to one in all, including the
petitioners. After all, the purpose of
publication in the Official Gazette is
information to the public at large. Even if
the rigour of the law about constructive
notice of a gazetted document is to be
ignored in the interest of judging by a more
equitable hand, we find that on facts, the
petitioners cannot plead ignorance about
the existence of the impugned notification.

12. A copy of the extract of the Six
Yearly Khatauni relating to Khata No.
00119, that includes amongst others, the
property in dispute (Plot No.146), has been
annexed as Annexure No.3 to the writ
petition. It is a Khatauni for the Fasli Year
1423-1428. There is, in the remarks
column, a clear entry of the impugned
notification issued by the State Government
resuming the property in dispute. This entry
was made on 15.05.2013. The extract of the
Khatauni is one that is available on the
website of the Government. In any case, it
is a Khatauni that relates to the property in
dispute, wherein the petitioners claim their
right, title and possession. It is, therefore,
very difficult to believe that the petitioners
would not know about the impugned
notification, that was entered in the relative
Khatauni way back on 15.05.2013. There is
absolutely no reason, therefore, to accept
the petitioners' explanation offered for the
delay of 10 years in challenging the
impugned notification. We, therefore, do
not find it to be a case where the
petitioners' laches can or ought to be
condoned.

13. Nevertheless, since the learned
Counsel for parties have addressed us on
the merits of the matter also, we propose to
examine
the
petitioners'
contentions
advanced
to
assail
the
impugned
notification. The thrust of the petitioners'
contention is that the property in dispute
never vested in the Gaon Sabha under
Section 117(1) of the Act so as to be
amenable to resumption under Section
117(6) of the Act. Being a building, it
vested in the second petitioner's forefathers
under Section 9 of the Act on the date of
8 All. Navi Hasan Vs. Pachhimanchal Vidyut Vitran Nigam Ltd. & Anr.
153
vesting. The building of the Imambara is
claimed to be 100 years old. We must
remark that it is the petitioners' burden to
establish that the building is 100 years' old
or may be younger, but that it was in
existence on the date of vesting, that is to
say, 7th July, 1949. The benefit of Section 9
of the Act can be claimed only in respect of
such buildings as were in existence on the
date of vesting. A building, constructed
later on, cannot be held to be settled with
its owner, occupier etc. In this regard,
reference may be made to the decision of
this Court in Basti Ram vs. Nagar Nigam,
Ghaziabad and another, 1999 SCC
OnLine All 1850. In Basti Ram (supra), it
has been held:

"9. Learned counsel for the
appellant has argued that the land vested in
the plaintiff/appellant under Section 9 of
the U.P. Zamindari Abolition and Land
Reforms Act Section 9 reads as follows:

"9. Private wells, trees in abadi
and buildings to be settled with the existing
owners or occupiers thereof.-- (All wells),
trees in abadi and all buildings situate
within the limits of estate belonging to or
held by an intermediary or tenant or other
person whether residing in the village or
not, shall continue to belong to or be held
by such intermediary tenant or person, as
the case may be, and the site of the wells or
the buildings within the area appurtenant
thereto shall be deemed to be settled with
him by the State Government on such terms
and conditions as may be prescribed."

10. Provisions of Section 9 are
applicable only when there is evidence and
proof of the factum that there existed well
or building on the land in question on the
date of vesting. There is no averment in the
plaint nor there is any finding of fact in this
regard. Therefore, the finding of the lower
appellate court that the land cannot be said
to have been settled with the plaintiff is
correct. ........."

 (emphasis by Court)

14. Here, the petitioners have
annexed no more, by way of evidence
about the existence of the abadi in Plot
No.146, than the extract of the Six Yearly
Khatauni for the Fasli Year 1423-1428,
that would correspond to the Calendar
Years 2015-16 to 2020-21. There is
absolutely no evidence on record, by
even as much as a hint, to show that the
building that the petitioners claim to be a
hundred years old Imambara was in
existence on the date of vesting. No
doubt, there is an averment to that effect,
but it is sans evidence. It is difficult,
therefore,
to
accept
the
petitioners'
contention that there was an Imambara or
a building, by whatever name called,
belonging to the petitioners in existence
on the date of vesting that could be held
to be settled with the petitioners under
Section 9 of the Act.

15. In the circumstances, we do not
find any force in this petition. It is,
accordingly, dismissed. No costs.
----------
(2022) 8 ILRA 153
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Writ C No. 10825 of 2022

Navi Hasan ...Petitioner
Versus
Pachhimanchal Vidyut Vitran Nigam Ltd. &
Anr. ...Respondents