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2016 DIGILAW 4133 (ALL)

BABU v. STATE OF U. P.

2016-12-21

ARUN TANDON, SUNITA AGARWAL

body2016
JUDGMENT By the Court.—Heard Sri J.J. Munir on behalf of writ petitioner Sri Arun Kumar Singh and Sri P.K. Singh, Advocate on behalf of Moradabad Development Authority as well as the learned Standing counsel. 2. This writ petition has been filed by five petitioners who claim to be the successor in interest of one Kesri. According to the petitioner, the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the ‘Act’ 1976) were initiated against Sri Kesri, with the service of notice under Section 8 of the Act 1876. Under the order dated 28th July, 1977 a total area of 3396.09 sq.mt., in the hands of Sri. Kesri was declared as surplus land. The surplus land was directed to be deducted from his land holding from Khasra/Plot No. 799. 3. Subsequent to the determination of the surplus land in the hands of the Kesri, a notices under Sections 10(1) and 10 (3) were issued on 27.2.1978 and 28.10.1978 respectively copy whereof is enclosed as Annexure Nos. CA-6 and CA-7 to the affidavit filed on behalf of the Development Authority. 4. According to the State-respondents despite service of the said notices, no response was received from Sri Kesri. This resulted in issuance of a notice under Section 10 (5) of the Act dated 31th January 1979. With reference to the notice under Section 10(5) copy whereof has been enclosed as Annexure-8 to the counter-affidavit actual possession of the surplus land was taken on 14th February 1979. Possession certificate duly signed by Tehsildar as well as Naib Tehsildar Urban Land (Ceiling and Regulation), Moradabad and another authority forms part of Annexure - CA-9 to the present petition. After taking over possession of the surplus land under Section 10 (5) the competent authority under the Urban Land (Ceiling and Regulation) Moradabad forwarded a letter dated 28th June, 1979 informing the Tehsildar Mordabad that the possession of the surplus land to the extent of 3396.09 hectares out of Gata No. 799 minzumla has been taken on 14th February 1979, therefore, necessary mutation in the revenue records be made. It was directed that the name of Sri Keshri be deleted in its place ‘ceiling land’ be recorded, it was directed that after necessary mutation in the records a copy of the order of mutation be returned to the Court of competent authority. 5. It was directed that the name of Sri Keshri be deleted in its place ‘ceiling land’ be recorded, it was directed that after necessary mutation in the records a copy of the order of mutation be returned to the Court of competent authority. 5. We find that on 31st October, 1987 surplus land covered by Gata No. 799 minzumla was in fact transferred in favour of the Moradabad Development Authority (total area 3520.89 hectares) under the Government Order dated 2.2.1990, which fact stands established from the document dated 2.2.1990 signed by the Naib Tehsildar Moradabad Development Authority, copy whereof is enclosed alongwith Annexure CA-11 to the writ petition. 6. The records further reflect that in order to carry out a comprehensive Development Scheme in respect of the areas within the territorial limits of Moradabad Development Authority, a notification under Section 4 of the Land Acquisition Act, 1894 was published on 17th February 2010 whereunder some parts of Plot No. 799 alongwith other plots mentioned therein were proposed to be acquired. This notification was followed by a notification under Section 6 of the Act, 1894 dated 4th April, 2011. It is worthwhile to mention that while the area of surplus land transferred to Moradabad Development Authority out of plot No. 799 is much in excess vis-a-vis that proposed to be acquired under Section 4 and 6 of the Land Acquisition Act, 1894. 7. It is only when the Development Authority and its agents started developing the land for the purposes of planned development and for the purposes of executing the scheme known as Sonakpur Housing Scheme that the petitioners has approached this Court by means of this writ petition in the year 2013 alleging therein that actual possession of the surplus land at the hands of Kesri had not been taken before the enforcement of Repeal Act, 1999 and, therefore, this Court may issue a writ in the nature of mandamus declaring that the entire proceedings under the orders passed by the competent authority dated 28th July 1977 with reference to Section 8 (4) Urban Land (Ceiling and Regulation) Act, 1976 stand abated with a further direction upon the respondents to mutate to the name of this petitioner in the revenue record over Khasra plot No. 799 as well as is direct the respondents to not to interfere with the possession of the petitioner over the said plot. 8. 8. Sri J.J. Munir on behalf of the petitioner vehemently contended before us that the petitioners as in possession of surplus land that the name of the State Government was mutated in the revenue records only on 25th May, 2011 and further that the possession memo has not been signed by any independent witness and, therefore, is not a document which could establish taking of possession of surplus land by the State Government in the eyes of law. 9. It is, therefore, submitted that the petitioner are entitled to the benefits of the Repeal Act, 1999 and consequently to the relief which have been prayed in the present writ petition. Sri Arun Kumar Singh and Sri P.K. Singh counsel for the Development Authority as well as Learned Standing Counsel dispute the correctness of the stand so taken on behalf of the petitioner. It is stated that the revenue records reflect that after determination of surplus land under Section 8 (4) of the Act 1876 in the hands of Kesri, proceedings under Sections 10 (3) and 10 (5) have been taken possession of exact area from Khasra Gata No. 799M has been taken. 10. It is further stated that actual possession was taken on 14th February 1979 a certificate issued in that regard signed by the Tehsildar is on record. Immediately after taking over the possession of the surplus land a letter was forward to the Tehsildar Moradabad dated 28th June, 1979 requiring him to make the necessary entries in the revenue records. Name of Khesri was directed to be deleted and ‘Urban Ceiling Land’ to be recorded in its place. 11. It is further stated that the information of the possession of the surplus land having been taken was also intimated to the State Government which fact is born out from the Government Order dated 31st October, 1987 whereunder the State Government transferred the surplus land to the Moradabad Development Authority. 12. It is also stated that from the very fact that notification under Sections 4 and 6 of the Land Acquisition Act, are for a very small portions of Gata, 799 M itself as an indicator that the possession of the bigger chunk of Plot No. 799 (surplus land) was with the Development Authority under the order of transfer dated 31st October, 1987. It is further submitted that the records in the facts of the case reflect that the actual possession had been taken by the competent authority after determination of the ceiling limits of Sri Kesri. The land was transferred to the Moradabad Development Authority in the year 1978 and therefore, the question of any benefit of the Repeal Act, being provided to the petitioner does not arise. We have heard counsel for the parties and have examined the records of the present writ petition. There is no dispute in respect of proceedings made Urban Land (Ceiling and Regulation) Act, 1976 against Kesri. It is also not in dispute that after following a due procedure prescribed a total area of 3396.09 sq. mt. was found surplus land in the hands of Sri Kesri. Accordingly, an order under Section 8(4) was made. After preparation of the final statement under Section 9 of the Act. This statement under Section 9 was followed by notification under Section 10 (1) which was published on 27th February, 1978 to which no objection was filed by Kesri or any other person leading to the issuance of notification under Section 10 (3) of the Act, which was published on 28th October, 1978. Even after expiry of 30 days as contemplated under the said notice Sri Kesri or any interested person did not file any objection to the taking of possession of the surplus land. Notice under Section 10 (3) was followed by notice under Section 10 (5) asking Kesri to surrender the possession of surplus land of 3396 sq. mt. out of Gata No. 799 Ba to which no response was received. As a result thereof the Ceiling Authority’s took possession after demarcation of the surplus area on 14th February, 1979. In paragraph 11 of the counter-affidavit, which has been stated that no one was ready to sign the possession memo at the time of taking possession of surplus land. The possession certificate is already on record duly signed by the authorities, We also find that immediately after taking possession a letter was forwarded by the Competent Authority under the Ceiling Act, to the Tehsildar for necessary corrections in the revenue records, namely, deletion of the name of Kesri and recording ‘Urban Ceiling land’. With a further direction upon Tehsildar to return a copy of the mutation order after compliance of the direction issued. 13. With a further direction upon Tehsildar to return a copy of the mutation order after compliance of the direction issued. 13. The records further reflects that the State Government on being intimated about the possession of surplus land having been taken, actually transferred the land in favour of the Moradabad Development Authority as per Government Order dated 31st October 1987. This notification includes the details of various plots land which have been declared surplus and have vested in the State Government under the Urban Land (Ceiling and Regulation) Act, 1976. The authencity of the document so brought on record alongwith the counter-affidavit filed by the Development Authority is not under question. There is little or no reason for this Court to disbelive the recitals contained therein. 14. We may record that at the time of possession of the surplus land had been taken by the Ceiling Authorities in the facts of the case, the directions of 1983 had not seen the light of the day. At no point of time, Khesri or any other person raised no objection in the matter of taking possession or the in the matter of land being transferred to the Moradabad Development Authority 15. A relevant indicator in the matter of surplus land having been taken possession of prior to the enforcement of Repeal Act, 1999 is the notification issued under Sections 4 and 6 of the Land Acquisition Act, 1894 wherein only small portion of plot No. 799 Ba was sought to be acquired which was less than half of what had been declared surplus land under the Ceiling Act. From the map which has been enclosed as Annexure- CA-3 filed by the respondent. 16. We further find that plot No. 799 is situate in the mids of the Housing Scheme which was to be developed by the Moradabad Development Authority. We see no reason as to why the Development Authority will propose acquisition of small portion of plot No. 799 when the entire plot falls within the scheme unless of course the possession or parts of use plots was available to the Development Authority. 17. We see no reason as to why the Development Authority will propose acquisition of small portion of plot No. 799 when the entire plot falls within the scheme unless of course the possession or parts of use plots was available to the Development Authority. 17. We draw support from the Division Bench Judgment of this Court of Shiv Ram Singh v. State of U.P. and others, 2015(7) ADJ 630 (DB), which in turn relies upon the judgment of the Apex Court in the case of State of Assam v. Bhasker Jyoti Sarma and others, 2015 (5) SCC 321 , wherein the judgment in the case of State of U.P. v. Hariram, 2013(4) ESC 249 (SC), has been considered and explained. 18. In the totality of the circumstances, on record we are more than satisfied that the documents on record do reflect that the possession of the surplus land which had been taken by the State Government much prior to the enforcement of Repeal Act, 1999. Therefore, the relief as prayed in the present writ petitions are denied. 19. We may record that the development was initiated over the plot in question and an scheme was announced on 24th January, 2013. It is only thereafter that the petitioner has chosen to approach this Court. 20. We have also been informed that the legal heirs of Kesri are alleged to have executed various agreement to sell in the respect of land which was identified surplus land in favour of various local property dealers. This writ petition is dismissed.