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2011 DIGILAW 806 (ALL)

SUGREEV v. STATE OF U. P.

2011-03-30

JAYASHREE TIWARI, R.K.AGRAWAL

body2011
JUDGMENT Hon’ble Mrs. Jayashree Tiwari, J.—Heard learned counsel for the petitioner and the learned Standing Counsel for the State. 2. By virtue of present writ petition the petitioner contended that father of the petitioner was bhumidhar of plot No. 126 situated in Village Mirakpur Uparhar, Plot Nos. 157 and 44 situated in Village Maheva Patti Paschchim and Plot Nos. 92/4, 102/14 situated in Village Mirakpur Kachhar, Pargana Arail, Tehsil Karchhana, District Allahabad. 3. It is further contended that the aforesaid land of the petitioner was declared surplus by the competent authority Urban Land Ceiling, Allahabad behind the back of the petitioner’s father. The petitioner contends that uptill now the aforesaid land is in actual physical possession of the petitioner and mustard crop is standing over the land in dispute and none of the competent authority or any person duly authorised by him ever taken possession of the land and as such land never vested in the State Government. The petitioner moved a representation in the matter but no heed was paid to his representation dated 21.7.2008 which is annexure 3 to the writ petition. The petitioner prays that the order dated 30.10.1984 which is annexure 1 to the writ petition be quashed. 4. Learned Standing Counsel for the State by filing counter-affidavit has rebutted the contentions raised by the petitioner in the writ petition. In the counter-affidavit filed by Devendra Singh, Assistant Engineer, Urban Land Ceiling, Allahabad it has been stated while denying the contention of the petitioner that excess land proposed to be declared surplus under Section 8(3) of the Act and notice for hearing was issued which was served on petitioner Sugreev on 19.10.1984. Despite service of notice the petitioner did not appear before the Court on the fixed date nor filed any objection. Consequently, ex parte order was passed under Section 8(4) declaring 6636-31 sq. metre of land as surplus. It is further contended that name of State Government was mutated and proceedings under Section 10(3) by publication dated 14th September, 1991 were made and further proceedings for possession of the land under Section 10(5) were initiated on 31.3.1993 and it is further contended that the petitioner illegally encroached the said land and doing agricultural work. It is further contended that name of State Government was mutated and proceedings under Section 10(3) by publication dated 14th September, 1991 were made and further proceedings for possession of the land under Section 10(5) were initiated on 31.3.1993 and it is further contended that the petitioner illegally encroached the said land and doing agricultural work. No document in support of the contention that service of notice under Section 8(3) was affected on the petitioner has been filed nor any document under which in pursuance of the notice under Section 10(5) possession was taken by the Government with the consent of the land holder has been filed in support of the contention raised in the counter-affidavit. The counter-affidavit is totally silent as to whether any memorandum or possession was prepared on the spot or further any proceedings under Section 10(6) were taken and possession was taken by way of using necessary coercive measures. 5. Section 10(6) of the Act provides that if any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary. 6. In the rejoinder affidavit the petitioner has repudiated the submissions made in the counter-affidavit and submitted that the order dated 30.10.84 passed by the competent authority was not within the knowledge of the petitioner. The representation dated 21.7.2008 was preferred by the petitioner before the competent authority. In para 6 of the rejoinder affidavit it is contended that the competent authorities are themselves admitting the actual physical possession of the petitioner over the disputed land and since the authorities are admitting the actual physical possession vesting cannot be said to have taken place and benefit of Repeal Act, 1999 must be extended to the petitioner. That no compensation has yet been paid to the petitioner. It is further contended that in Civil misc. writ petition No. 56178 of 2008 Masuria Deen and others v. State of U.P. and others a Division Bench of this Hon’ble High Court has held on 6.5.2009 that possession on paper is a symbolic possession and word physical possession means actual physical possession and not the symbolic possession. 7. It is further contended that in Civil misc. writ petition No. 56178 of 2008 Masuria Deen and others v. State of U.P. and others a Division Bench of this Hon’ble High Court has held on 6.5.2009 that possession on paper is a symbolic possession and word physical possession means actual physical possession and not the symbolic possession. 7. From the rival claims of the petitioner and the respondents as has been exchanged by way of affidavit, counter-affidavit and rejoinder affidavit it comes out apparently and clearly that under Section 8(3) of the Act the land was declared surplus and that time the petitioner was not present as is evident from the order passed which is annexure 1 to the writ petition. A perusal of the order shows that there is a mention that notice has been served upon the petitioner but no document has been filed in the counter-affidavit to show whether the aforesaid notice was issued or served upon him. Admittedly, the order declaring the land as surplus land has been passed ex parte and the respondents have failed to show any service of notice upon the petitioner in this regard. 8. Even leaving apart this point, it is also clear that after this order dated 30.10.84 the name of the State Government was mutated in the revenue record but it has to be seen as to whether mere mutation of name in the revenue record without taking actual physical possession on the spot according to the mandate of the urban Ceiling and the Regulation Act is sufficient. According to the legal position mere mutation of name without taking proceedings for actual physical possession as mentioned under Sections 10(5) and 10(6) are of no use. According to Section 10(5) where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. So under this Section issuance of notice to the land holder having possession of the land to surrender or deliver possession of the land within 30 days from the date of service of notice is necessary. So under this Section issuance of notice to the land holder having possession of the land to surrender or deliver possession of the land within 30 days from the date of service of notice is necessary. In the counter-affidavit no document has been filed on behalf of the State Government to show that any notice under Section 10(5) which was issued was ever served upon the petitioner. Regarding report of service of notice no document has been filed in this regard to corroborate the fact that notice under Section 10(5) was ever issued to the petitioner. Even no other document has been filed to show that within 30 days of service of any such notice, the land holder had surrendered or delivered the possession of the surplus land in favour of the State. No memorandum of possession by way of surrender or delivery of the land by the landholder has been produced to corroborate this fact. So far as the mandate under Section 10(6) of the Act is concerned it lays down as under. 9. Section 10(6) of the Act provides that if any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary. 10. There is not even murmur or whisper in the counter-affidavit regarding any proceedings under Section 10(6) of the Act and that no memo of possession as taken on the spot by way of necessary force has been filed. 11. In this connection, the learned counsel for the petitioner has relied on a case law as cited in 2005 (I) RJ 548 in civil misc. writ petition No. 6354 of 2003 wherein it has been held that Effect of entry in favour of State in revenue records without taking action to take possession under Section 10(5) and 10(6) of Urban Land ( Ceiling and Regulation) Act, 1976 from actual tenure holder- can not be deprived of the benefit of the Repeal Act- Petition allowed. 12. writ petition No. 6354 of 2003 wherein it has been held that Effect of entry in favour of State in revenue records without taking action to take possession under Section 10(5) and 10(6) of Urban Land ( Ceiling and Regulation) Act, 1976 from actual tenure holder- can not be deprived of the benefit of the Repeal Act- Petition allowed. 12. According to the aforesaid ruling as cited above if actual physical possession under Section 10(5) or 10(6) has not been taken and mere name of the State Government has been mutated, that will not be sufficient and land holder cannot be deprived of the benefit of the Repeal Act. The Repeal Act (under Section 4 Abatement of Legal proceedings) provides that all proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or any authority shall abate provided that this Section shall not apply to the proceedings relating to Sections 11,12,13 and 14 of the principal Act insofar as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. 13. So situation which comes out from the contentions of the parties in the present case is that even if for argument sake it be accepted, the proceedings under Section 8 of the Urban Land Ceiling Act if sub-sections 3,4 and Section 10(3) were completed and according to the contentions of the respondents notice under Section 10(5) was issued, no document with regard to the issuance of notice under Section 10(5) or any document showing the service under Section 10(5) has been produced to corroborate the fact. But the fact remains that after the lapse of 30 days from the service of notice the factum of taking the actual physical possession could not be corroborated or proved by the State by filing any relevant concerned document showing clearly that actual physical possession on the spot was not taken till the time the Repeal Act came in force. 14. Hence, by virtue of Repeal Act (Section 4) the proceedings, if any, which were initiated and were pending stand abated. The writ petition, therefore, succeeds and is allowed. 14. Hence, by virtue of Repeal Act (Section 4) the proceedings, if any, which were initiated and were pending stand abated. The writ petition, therefore, succeeds and is allowed. It is directed that the name of the petitioner be mutated in accordance with law on the disputed land and the State Government is directed not to dispossess the petitioner from the disputed land which is still in the petitioner’s actual physical possession. 15. The writ petition, therefore, succeeds and is allowed. —————