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2015 DIGILAW 517 (ALL)

ROOP CHAND v. D. J. , MEERUT

2015-03-20

MUKHTAR AHMAD, TARUN AGARWALA

body2015
JUDGMENT By the Court.—We have heard Sri N.C. Rajvanshi, learned senior counsel assisted by Sri P.C. Shukla for the petitioner, learned Standing Counsel for respondent Nos. 1,2 and 3 and Sri Bhupendra Dayal for Meerut Development Authority, respondent No. 4. 2. The petitioners are the heirs of the original tenure holder Nathu whose land was declared surplus under Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘the Act’). The original lessee filed an appeal, and during its pendency, died on 6.5.1995. The appeal was dismissed for want of prosecution on 22.12.1997. Thereafter, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into existence with effect from 18.3.1999. The petitioners, being the heirs of Nathu, filed a restoration application No. 207 of 2001 in the year 2001. The District Judge, by an order dated 18.1.2002, rejected the restoration application on the ground that in view of the Repeal Act the appeal stood abated as a consequence of which the restoration application could not be considered. 3. The petitioners, being aggrieved, filed the present writ petition praying for the quashing of the order of the District Judge dated 18.1.2002 by which their application for restoration was rejected as well as the order dated 22.12.1997 by which the appeal was dismissed for want of prosecution. 4. A division Bench of this Court by judgment dated 13.5.2009 allowed the writ petition holding that the petitioners’ land cannot be declared as vacant under the Repeal Act. Against this judgment, the State of U.P. preferred a Special Leave Petition which was allowed by a judgment dated 23.8.2013 and the order of the High Court was set aside. The Supreme Court remitted the matter to the high Court to decide the matter afresh, and parties were given liberty to file additional evidence and documents before the high Court. 5. After hearing the learned counsel for the parties, we find that the only prayer made in the writ petition is for the quashing of the orders passed by the District Judge. We are of the opinion that the petitioners could not file the restoration application without filing a substitution application in the proceedings before the District Judge. In the absence of any substitution application being filed to implead themselves as the heirs of the original lessee Nathu, the restoration application filed by them by itself was not maintainable. 6. We are of the opinion that the petitioners could not file the restoration application without filing a substitution application in the proceedings before the District Judge. In the absence of any substitution application being filed to implead themselves as the heirs of the original lessee Nathu, the restoration application filed by them by itself was not maintainable. 6. Further, we are of the opinion that in view of the Section 3 of the Repeal Act, 1999 all appeal stood abated and consequently it was a futile exercise to file a restoration application and have the appeal restored when the ultimate result would be the same, namely, that the appeal stood abated. 7. On the question of possession, the petitioners have stated in paragraph 8 of the writ petition that they are in actual possession of the plot in question and that the opposite parties have not taken actual physical possession of the plot in question. Apart from this assertion there is no other assertion in the writ petition. The Supreme Court, in its order, clearly indicated that it was open to the parties to file additional evidence which the petitioners have failed to do so. This paragraph 8 of the writ petition has been sworn on the basis of record. Such record indicating that the petitioners are in physical possession have not been brought on record. 8. On the other hand, the State Government as well as the Meerut Development Authority have filed a supplementary counter-affidavit indicating that physical possession was taken on 6.4.1991 after issuance of a notice under Section 10(5) of the Act of 1976 to handover voluntary possession. Since the original lessee did not hand over voluntary possession pursuant to the notice under Section 10(5) of the Act, physical possession was taken on 6.4.1991. Once this document has been filed before this Court it was open to the petitioners to question the veracity or legality of this document by making suitable amendments in the writ petition which the petitioner has failed to do so. This document indicates that physical possession was taken in the presence of witnesses and that the original lessee has refused to sign and acknowledge taking over the possession. We also find that after the State had taken over the physical possession in the year 1991 possession was transferred to the Meerut Development Authority on 27.2.1992. This document indicates that physical possession was taken in the presence of witnesses and that the original lessee has refused to sign and acknowledge taking over the possession. We also find that after the State had taken over the physical possession in the year 1991 possession was transferred to the Meerut Development Authority on 27.2.1992. The Supreme Court recently in Civil Appeal No. 10565 of 2014 State of Assam v. Bhaskar Jyoti Sharma and others, decided on 27.11.2014 has held that where possession has been taken over by the State since long the same cannot be questioned at a belated stage. The challenge, if any, should have been taken at the earliest possible stage. 9. In the instant case, we find that the original lessee had filed an appeal before the District Judge and there is nothing to indicate on the part of the heirs of the original lessee before this Court to indicate that the original lessee had challenged the notice under Section 10(5) or the actual taking over the physical possession before the District Judge. In the light of the aforesaid, we do not find any merit in the writ petition and is accordingly dismissed. ——————