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2016 DIGILAW 558 (ALL)

KRISHNA KUMAR TIWARI v. STATE OF U. P.

2016-02-17

KRISHNA MURARI, RAGHVENDRA KUMAR

body2016
JUDGMENT By the Court.—Heard Sri Virendra Kumar Shukla, learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. Dispute relates to land owned by the petitioner, which was declared surplus under the provisions of the U.P. Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as the ‘Act’). 3. A writ of mandamus is being claimed by the petitioner to command and direct the respondents not to interfere in the peaceful possession over the land in question and not to forcefully dispossess him in pursuance of the Government Order dated 8.5.2009. A further declaration has been sought that the proceedings for declaration of surplus land under the Act, 1976 stands abated in view of the U.P. Urban Land (Ceiling & Regulation) Repeal Act, 1999. 4. Facts, as stated, in the writ petition relevant for the purposes of the case, in brief, are as under : 5. Proceedings for declaration of surplus land in the hand of the petitioner were initiated. He filed a return under Section 6(1) of the Act, which was numbered as case No. K-4545/1976, State v. Krishna Kumar Tiwari. It is categorically pleaded in the writ petition that thereafter without any service of notice as provided under Section 8(3) of the Act, an order dated 15.7.1982 was passed under Section 8(4) of the Act illegally and never communicated to the petitioner. It is further pleaded that the respondent authority never completed the proceedings and except for issuing notice under Section 10(5) of the Act, no further proceedings for taking physical possession of the surplus land was undertaken and the petitioner is still continuing in actual physical possession of the land in question, which was declared surplus. 6. In the counter-affidavit filed on behalf of the State, it has been stated in paragraph 8 that after return was filed by the petitioner under Section 6(1) of the Act, a survey was conducted and notice under Section 8(3) of the Act was issued. However, when the petitioner did not respond to the said notice an order dated 15.7.1985 was passed under Section 8(4) of the Act declaring 1275.73 sq. meter of land surplus. Thereafter, notifications under Section 10(1) and 10(3) of the Act were published on 30.1.1986 and 16.3.1996. However, when the petitioner did not respond to the said notice an order dated 15.7.1985 was passed under Section 8(4) of the Act declaring 1275.73 sq. meter of land surplus. Thereafter, notifications under Section 10(1) and 10(3) of the Act were published on 30.1.1986 and 16.3.1996. It is further stated that notice under Section 10(5) of the Act was issued on 14.5.1996 and after publication of notification under Section 10(3) of the Act, the land stood vested in the State Government and in pursuance of the Government Order dated 11.12.1996, possession of the same has been handed over to Allahabad Development Authority. Alongwith the counter-affidavit, an alleged notice under Section 10(5) of the Act dated 14.5.1996 is annexed but the same does not bear any signature either of the tenure holder or any other authority nor it records as to when and in what manner, possession of the land declared surplus was taken over. The notice only states that possession of the land declared surplus may be handed over to the Collector, Allahabad within 30 days from the date of receipt of the notice. It is also to be taken note of that there is neither any averment in the entire counter-affidavit as to when and in what manner and from whom the possession of the land declared surplus was taken by the State authorities nor there is any reference of possession memo nor copy of the same has been filed alongwith the counter-affidavit. The counter-affidavit fails to demonstrate that actual physical possession of the land declared surplus was taken by the State from the petitioner and transferred to the Development Authority. What has been pleaded in the counter-affidavit is that after publication of notification under Section 10(3) of the Act, the land stood vested in the State and was subsequently transferred to the Development Authority under the Government Order dated 21.10.1999 providing for transfer of such land which was declared surplus to various departments/authorities. 7. The issue with respect to de facto possession and de jure possession by State of the land declared surplus came up for consideration before a Division Bench of this Court in the case of Ram Chandra Pandey v. State of U.P., 2010(7) ADJ 488 (DB), wherein it was held that mere symbolic possession does not amount to taking over actual physical possession. It was further held that unless actual physical possession has been taken by the State, the party would be entitled to the benefit of the Repeal Act, 1999. 8. The same view has been taken by the Apex Court in the case of State of U.P. v. Hari Ram, 2013(4) ADJ 249 (SC). The question for consideration before the Apex Court in the said case was whether deemed vesting of surplus land under Section 10(3) of the Act would amount taking over de facto possession depriving the landholders to the benefit of the saving clause under sub-section (3) of the Repeal Act. This issue was answered by the Apex Court in para 39 of the said judgment, which reads as under : “The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act.” 9. The same issue has been reaffirmed by the Apex Court in the case of Gajanan Kamlya Patil v. Additional Collector & Comp. Auth. and others, JT 2014 (3) SC 211. 10. There is no material in the counter-affidavit to demonstrate that the State has taken peaceful possession, nor there is any material to demonstrate that the possession was handed over by the petitioner voluntarily or was taken over by use of force. There is not even a whisper in respect of any notice having been issued under Section 10(6) of the Act. The facts clearly indicates that only dejure possession has been taken by the State, not de facto possession, before coming into force of the Repeal Act. 11. What has been stated in the counter-affidavit is that the possession has been taken over on the basis of the Government Order dated 11.12.1996 and handed over to the Development authority. The facts clearly indicates that only dejure possession has been taken by the State, not de facto possession, before coming into force of the Repeal Act. 11. What has been stated in the counter-affidavit is that the possession has been taken over on the basis of the Government Order dated 11.12.1996 and handed over to the Development authority. The issue with respect to transfer of a surplus land to the local authority/development authority by the State Government after taking symbolic possession through Government Orders, was subject-matter of consideration by a Division Bench in the case of Lalla and others v. State of U.P. and others, 2014(9) ADJ 524 (DB), wherein it has been held as under. “11.The law does not contemplate transfer of possession by Government orders. It needs to be clarified that the land for the purposes of management would vest in the local authorities/development authorities only when the State came in valid possession over land, pursuant to lawful proceedings under Section 10(5) or 10(6) of the Act. The local authorities/development authorities merely steps into shoes of the State Government. If the State Government through the Collector/District Magistrate has not taken possession over the land in question, as contemplated by law, the transfer of possession in favour of the local authorities/development authorities cannot be presumed under Government order. If the possession of land has not been taken by the State, as per the procedure already determined by the Apex Court, the local authorities/development authorities cannot claim independent right over the land merely on the strength of the Government order. 12. We are of the view that large number of pending writ petitions before this Court, as well as disputes pending at the level of the District Magistrate etc. can be conveniently resolved, if the State Government at its own level issues appropriate Government instructions in light of the law settled by the Apex Court, providing that possession of land declared surplus cannot be taken by the local authorities/development authorities or other state agencies, merely by Government orders and that only where possession of land declared surplus has been delivered to State peacefully by the tenure holders pursuant to Section 10(5), or possession is forcibly taken by the State Government pursuant to notice under Section 10(6), the benefit of Repeal Act of 1999 would enure to the tenure holders. The intention of legislature is clear, once the State has adopted the Repeal Act 1999 on 18.3.1999, the State must take all steps to implement its legislation and allow the consequences of repeal to the benefit of the tenure holders and the tendency to somehow or the other hold on to claim merely because notices under Section 10(3) or 10(5) have been issued/served, must not be encouraged/tolerated.” 12. In the light of the aforesaid facts and discussions, it is clear that respondents could not establish that they have actually taken over possession of the land declared surplus before enforcement of the Repeal Act, 1999. In such view of the matter, the petitioners are entitled to the benefit of Repeal Act, 1999 and in the facts and circumstances, the writ petition deserves to be allowed. 13. Accordingly, the writ petition succeeds and stands allowed. A writ of mandamus is issued commanding the respondents not to interfere in the actual physical possession of the petitioner over the land in dispute and they are further directed to restore the entry of the name of the tenure holders in the revenue records. 14. However, there shall be no order as to costs.