1998 Supreme(SC) 1120

1998(8) Supreme 342
Supreme Court of India
(From Allahabad High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
Ram Badan Rai & Ors. —Appellants
versus
Union of India & Ors. —Respondents
Civil Appeal No. 3782 of 1988
Decided on 9-11-1998
Counsel for the Parties :
For the Appellants : V.K.S. Chaudhary, Sr. Advocate, V.V. Mishra, N.S. Gahlaut, A.S. Pundir, Advocates.
For the Respondent No. 3 : R.K. Khanna, Rajeev Singh & R.P. Singh, Advocates.
For the Respondent Nos. 2, 4, & 5 : Pramod Swarup, A.K. Srivastava, Advocates.
For the Respondent No. 1 : Kirit N. Raval, Additional Solicitor General, P. Parmeswaran, Advocate.
For the Intervenors : R.K. Jain, Sr. Advocate and R.P. Wadhwani, Advocate.

Important Points
1. Boundaries between Bihar and State of U.P. were not frozen as on 26.1.1950 under Articles 1(2), 3 and 4 of the Constitution and trans­fer of terriories from Bihar to U.P. by fixing boundaries vide Bihar and U.P. Alteration of Boun­dary Act, 1968 was validly made.
2. Adjudication under Section 145 of the Cr.P.C cannot be treated as equal to an adjudication on title by Civil Court.

Headnote:(i) Constitution of India—Arts. 1(2), 3 and 4 — Bihar and U.P. Altera­tion of Boundary Act, 1968—Alteration of Boundaries of States —Territo­ries of States as on 26-1-1950 was not frozen—Constitution provides for prospective changes including alteration of boundaries—Boundaries between Bihar and State of U.P. changes were incorporated in Bihar and U.P. Alteration of Boundary Act, 1968—Changes effected valid.

       Held : In the Constitution of India as it stood on 26.1.1950, it was stated in Article 1(2) that the States and territories of India shall be the States and their territories as specified in Parts A, B and C of the First Schedule. In the First Schedule Part A, at serial No. 2 we have the State of Bihar and at serial No. 8, we have the State of United Provinces. It was further stated in the said First Schedule under the heading ‘Territories of States’ in para 3 that the territory of each of the States referred to in that para in Part A shall comprise the territories which immediately before the commencement of this Consti­tution were comprised in the corresponding province (i.e. Bihar Prov­ince and United India Province) and the territories which, by virtue of an order made under Section 290 A of the Government of India Act, 1935 were immediately before such commencement being administered as if they formed part of that province. According to the appellants, the territories comprised in the Part A State of United Provinces as on 26.1.50 stood frozen and that on that day,—by virtue of the then position of the deep stream,—being the eastern stream, these lands were to the west of the said stream and stood physically included in the State of United Provinces. Accord­ing to the appellants, if subsequently, after 1950 the Western stream became the deep stream, that could not be taken cognizance of because under Article 1(3), the position as on 26.1.50 stood geographically frozen. This contention is unsustainable. (Paras 15 & 16)

       It is obvious that under sub clause (d) of Article 3, the boundaries as on 26.1.50 between the States were clearly made subject to altera­tion by Parlia­mentary legislation. The words ‘specified in Part A or Part B of the First Schedule, were omitted by the Constitution (Seventh Amendment) Act, 1956. By virtue of the said Seventh Amendment Act, 1956, Article 1(2) was amended as ‘The States and Territories thereof shall be as specified in the First Schedule’. The First Schedule was also simultaneously amended and so far as serial No. 3, the State of Bihar was concerned, it would com­prise of “territories which immediately before the commencement of this Constitution were either comprised in the Province of Bihar or were being admi­nistered as if they formed part of that province, but excluding the territories specified in sub-section (1) of Section 3 of the Bihar and West Bengal (Transfer of Territories) Act, 1956.” So far as serial No. 12, the State of Uttar Pradesh is concerned, it was to comprise of the ‘territories which immediately before the commencement of the Constitution of India were either comprised in the Province known as the United Provinces or were administered as if they formed part of that province.’ The changes in the deep stream resulted in a meeting of the Chief Ministers of the two States in 1961 and they agreed to refer the dispute to an Arbitrator to be appointed by the Prime Minister and to abide by the decision to be given by the Prime Minister on a consider­ation of the recommendation of the Arbitrator. Accordingly, Shri C.M. Trivedi, ICS former Governor of the State of Andhra was appointed Arbitrator and he submitted his report to the late Prime Minister, Shri Lal Bahadur Shastri on 28.8.1964 recommending a fixed boundary in both the Ganga and Ghagra sectors. The recommendations were accepted by the late Prime Minister Shri Lal Bahadur Shastri and conveyed to the State Governments. Accordingly, the Bihar and U.P. (Alteration of Boundaries) Act, 1968 (Act 24 of 1968) came to be passed by Parliament. (Paras 17 to 20)

       The contention of the appellants is that the boundaries between Bihar and Uttar Pradesh as on 26.1.1950 should be treated as frozen and that no part of the disputed land must be deemed to have been transferred from State of Bihar to Uttar Pradesh. According to the appellants, the entire area of about 2000 acres was right from 1881-83 part of Hansnagar on U.P. side and remained so on 26.1.1950 and that the subsequent change in the deep stream in 1961—an event which took place between 1950 and 1968—had to be ignor­ed and, therefore, there was no question of transfer of any land from Bihar State to U.P. under Section 3 of the 1968 Act as from the ‘appointed date’. This contention of the appellants cannot be accepted. It ignores the clear provisions of the Constitution of India in Article 3. Under that provision, Parliament has been empowered to form new States and alter the areas, boundaries or names of existing States. In 1956, the boundaries between Bihar and West Bengal were adjusted under the Bihar and West Bengal (Transfer of Territories) Act, 1956 and likewise in 1968, the boundaries between Bihar and Uttar Pradesh were adjusted. The provisions of Section 3 of the 1968 Act are clear that some terri­tories were transferred from Uttar Pradesh to Bihar while some other territories were transferred from Bihar to U.P. Therefore the territories of the States as on 26.1.1950 was not frozen and the Constitution provided for prospective changes including alteration of boundaries. So far as the State of Bihar and Uttar Pradesh were concerned such changes were incorporated in the 1968 Act resulting in some territory in Shahbad District of Bihar lying between the fixed boundary and the deep stream of the river Ganga being transferred from Bihar State to the State of U.P. (Paras 27, 28 & 30)

       (ii) Bihar and U.P. Alteration of Boundary Act, 1968—Changes in course of river Ganga—Hansnagar area falling sometimes within State of Bihar and sometimes with State of U.P.—1968 Act transferring Hansnagar area which included three villages, Nainijor 1845, Nainijor Nambrar and Nainijor Diare Paschim from Bihar State to U.P. State—Appellant’s claim that claim of Bihar that above three villages were existing were immaginary or ghost villages and as such no question of transferring land as contemplated by 1968 Act—Claiming that appellants were in possession of disputed lands as part of U.P. as recorded in U.P. State revenue re­cords—High Court holding that transfer was valid but exist­ence of villages in question has to be decided separately by Courts of competent jurisdiction—Whether correct—Yes.

       Held : So far as the question whe­ther the land in Hansnagar village of U.P. was far less in 1840 and land from the three disputed villages of Bihar got added thereto so as to swell to the present extent, whether these three villages were non-existent or ghost villages of Bihar created fictitiously by the officials of the State of Bihar and other related matters—are questions which cannot, as rightly held by the High Court, be decided in writ jurisdiction inasmuch as a lot of oral and documentary evidence is to be adduced and considered by the Courts or authorities under the U.P. Acts. The High Court did not rightly go into the said questions. When the High Court had itself felt that these matters could not be dealt with in writ jurisdiction, we would not take upon ourselves the burden or the responsibility of deciding these issues. So far as the minutes of the meeting dated 19.10.1984 and the direc­tion of the Board of Revenue dated 10.10.1985 and the notification of the U.P. Government dated 26.7.1973 issued pursuant thereto, they are administrative in nature and no prior notice to the appellants was necessary, as held by the High Court. Again, so far as the minutes dated 19.10.1984 are concerned, para 2 refers to a direction by the Patna High Court in CWJC No. 1624 of 1981 whereby the Court direction the two State Governments and the Union of India to sort out the issue relating to the non-inclusion of the three villages in the survey map and consequently in the Schedule of the 1968 Act. The minutes say that the Schedule no doubt reproduced the boundaries as per survey-maps of 1881-83 as recommended by Sri Trivedi’s arbitral award but these three villages have now been shown in the map prepared under Section 3(4) of the 1968 Act on the informa­tion given to them by the Government of Bihar with reference to their service records. The Survey of India produced the relevant map and drew pointed attention to the note therein to that effect. The minutes of 19.10.1984 point out that while the Schedule in the 1968 Act lays down the precise alignment of the fixed boundaries for the purpose of the demarcation thereof on the ground, the map was intended to facili­tate identification by the administrative authorities and the people of the transferred territories as existing at the time of transfer and, therefore, the purposes of the Schedule and the maps was differ­ent and there was no conflict between them. The minutes say that there was, therefore, no need for amendment of the Schedule and further the Schedule was strictly in conformity with the arbitral award. Any amendment to the Schedule would, according to these minutes, amount to tampering with the very award which had been accepted by both the State Governments. These minutes, it is obvious, do not amount to any final adjudication of the existence of the three disputed villages. That question has to be decided separately. That is why the High Court held in para 44 that these minutes cannot be said to be without jurisdic­tion but that the matter relating to the existence of the villages etc. is to be adjudicated separately. In para 3 of the said minutes, it stated that the representative of the Bihar Government observed that the Chief Secretaries of both State Governments had agreed at a meeting held in the Ministry on 10.7.1970 that the cases where both the States had maintained separate sets of records in respect of the same land, the records maintained by the transferring State should be presumed to be correct unless proved otherwise in a Court of Competent jurisdiction. The Bihar Government officials pointed out that pursuant to that agreement, the Bihar Government had transferred the records pertaining to the three vil­lages in question but that the U.P. Government had not accorded recog­nition to them and the Bihar officials insisted that the rights of tenants should be determined with reference to the position obtaining on 10.6.1970 when the transfer of territories took place and that the Bihar records, in respect of the three villages be given recognition by the U.P. government in accordance with the agreement dated 10.7.1970 of the Chief Secretaries. On the other hand, the U.P. offi­cials contended that the Bihar records of rights (Khatiyans) were incomplete and that the lands comprised in these three villages were now part of Hansnagar since 1881-83 in the absence of separate identi­ty of those villages at that time and that the residents of Hansnagar would, therefore, be having tenancy rights over the land. Para 3 of the minutes dated 19.10.1984 then states that the U.P. government have undertaken survey and settlement operations under the State Land Revenue Act in Ballia District. “which covered the three transferred villages also”. The U.P. officials stated that in the course of those proceedings, parchis would be issued to all persons who either were in actual possession of land or were claiming rights of ownership and cultivation thereon. They further contended that the whole process was a judicial process and that any person aggrieved by the decision of the revenue court had a right of appeal. On these rival contentions, the minutes dated 19.10.1984 state that it was finally agreed that (1) the U.P. government may write to the Bihar government specifying the basic records required in respect of the lands com­prised in the three transferred villages in question and the Bihar government would comply with their requirement within a month of receipt of the relevant communication from the U.P. government. (2) the U.P. government may retain the name of the villages as appearing in the records transferred by the Bihar government. (3) Boundary pillars may be fixed on ground in accordance with the provisions of the 1968 Act. The High Court, in our view, rightly held in para 44 that these minutes could not be said to be without jurisdiction. These do not however, amount any adjudication regarding the existence of the Bihar villages. That question had to be decided separately by the courts of competent jurisdiction. Coming to para 1 of the Board of Revenue (U.P.)’s letter to the Collector dated 10.10.85 regarding preparation of records and maps of areas in U.P. and the directions (A) to (I), various directions were issued by the Board to the Collector in regard to adjudication of the matter under Section 54 of the Act summarily and for getting the process of survey and preparation of records completed as early as possible. Consequently by notification dated 26.7.1973 of the U.P. Government, the land in the village of Hansnagar and the three vil­lages were placed under survey and record operations. The proceedings of the Board dated 10.10.1985 and the notification were rightly held, in para 44 of the High Court judgment, to be within jurisdiction of the said authorities. The above proceedings of the Board dated 10.10.1985 and the noti­fication dated 26.7.1973 did not also amount to any adjudication on the merits of the existence of these three villages or as to whether the land in the three villages was part of the land transferred from Bihar to U.P. under the 1968 Act. The High Court rightly held, in regard to the notification in the 1968 Act, boundaries have been fixed with reference to the survey of 1881-83 and that if the three villages or survey and physical verification were found to exist, it would have to be ascertained in which village of U.P., according to the survey of 1881-83, they lay. The High Court also rightly held that entries in the records could be scored off or ignored only after notice under Section 54(2) of the U.P. Land Revenue Act. If names found in the records maintained by each of the State were, in regard to same land, different then the correctness of either of the entries had to be determined under or resolved only in the manner prescribed under Sections 54, 40, 41 or 43 of the U.P. Land Revenue Act. The Assistant Records Officer could dispose of the matter under Section 54(6) of the said Act. The deci­sion of the said officer was appealable under Section 210 of the U.P. Land Revenue Act, 1901 and there was also a revision to the Board of Revenue, U.P. under Section 219. The High Court also rightly allowed advocates to appear and the Assistant Records Officer to take oral evidence—even in a summary way—and rightly set aside that part of the orders of the Board of Revenue. The High Court was also right in directing consolidation of the cases under Section 192-A of the Act to avoid multiplicity of the evidence/ hearings and in rejecting the rest of the reliefs. (Paras 32 to 41)

       It is true that the disputes between the parties from Bihar side and the U.P. side are long standing and, several matters are already pending before the Assistant Records Officer under the U.P. Land Revenue Act, 1901. It is also true that they are all individual mat­ters and not representative actions. No doubt the High Court has ordered consolidation. The suggestion of counsel that fresh suits could be filed under the U.P. Zamindari Abolition and Land Reforms Act, 1950 on questions of title and possession, is worth consideration. But we do not in our jurisdiction under Article 136 of the Constitution of India, propose to decide whether such a course of action under the 1950 Act would be preferable. The feasibility of the suggestion has to be decided upon a full hearing. We would, therefore, think that it would be more appro­priate to leave this question to be decided by the High Court of Allahabad. We, therefore, while affirming the judgment of the High Court, remit the matter to the High Court to find out the feasibility of representative actions being filed under the U.P. Zamindari Abolition and Land Reforms Act, 1950. If the High Court thinks it feasible to have the disputes decided under the 1950 Act, and at a higher level by the Commissioner or other officer, it will be open to the High Court to issue appropriate directions. If the High Court thinks that such a procedure is not feasible it will be for the High Court to so decide and leave the parties to chose their further remedies after the con­clusion of the cases under the U.P. Land Revenue Act, 1901. The matter is remitted to the High Court on this limited aspect. (Paras 55 to 57)

       (iii) Code of Criminal Procedure, 1973—Section 145—Adjudi­cation under—Nature of—Adjudi­cation under Section 145 cannot be treated as equal to an adjudication on title by Civil Court.

       Held : An adjudication under Section 145 Cr.P.C. cannot be treated as equal to an adjudication on title by a Civil Court. It will be for the appropriate Competent Court to consider the relevance and admissibility of the observation made in the said order and adjudicate on the question of title after receiving oral and documentary evidence. (Para 42)

       (iv) Bihar and U.P. Alteration of Boundary Act, 1968—Section 26—Territo­ries transferred from Bihar to U.P.—Law applicable to—Bihar Laws in force in those areas before transfer would continue to apply till laws of transferee State of U.P. extend to areas so transferred.

       Held : the effect of Section 26 of the 1968 Act is that even after the transfer of some territories from Bihar to Uttar Pra­desh, the Bihar laws in force in those areas before such transfer shall continue to apply in those territories till the laws of the transferee State of U.P. are extended to the areas so transferred to U.P. State. (Paras 45)