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2017 DIGILAW 2891 (ALL)

SANT LAL v. STATE OF U. P.

2017-12-11

AJIT KUMAR, SUDHIR AGARWAL

body2017
JUDGMENT : By the Court.—Heard learned counsel for parties and perused the record. 2. The present writ petition is directed against the respondents seeking a restraint order to the effect that they may not interfere in the possession of petitioner over land in question as ceiling proceedings in respect to land in question has stood abated in view of Urban Land (Ceiling & Regulation) Repeal Act, 1999 (hereinafter referred to as the “Repeal Act, 1999”). The contention raised by petitioner is that notice under Section 10(5) of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the “Act, 1976”) was never served upon land holder, nor, any further notice under Section 10(6) of Act, 1976 was issued or served. Thus petitioner claims to be entitled to the benefit under Repeal Act, 1999. Paragraph 16 and 18 of writ petition are reproduced as under: “16. That the notice Under Section 10(5) not served on land holder, whereas under law service of notice Under Section 10(5) is mandatory. The respondents have not followed the procedure of Under Section 10(5), 10(6). Whereas in fact petitioner is in actual physical possession over the land in question continuously till date. But respondents have never taken actual physical possession from petitioner till today.” “18. That due to the functionaries of the State regarding took over possession of the land is without any sanction of law, without completing the procedure laid down in the Act, 1976 as well as direction issued there under, therefore authorities treated the land holder as a (subject) medieval Indian but not as a (citizen) under constitution of India.” 3. In reply to the pleadings raised in writ petition in the counter-affidavit filed by respondents, it is only stated that once notice has been issued under Section 10(3) of Act, 1976 on 15.6.1996, the land stood vested with State free from all encumbrances. It is further stated that notice under Section 10(5) was issued on 17.7.1997 to petitioner for handing over peaceful possession of land declared surplus under Act, 1976. It is further stated that under Government Order dated 11.12.1996 land was transferred to Allahabad Development Authority (hereinafter referred to as “ADA”). The relevant Paragraphs 4, 5, 6 and 7 of counter-affidavit are reproduced hereunder: “4. That, the petitioner submitted draft statement bearing letter No. P-567/76 under Section 6(1) of Urban Ceiling Act, 1976. It is further stated that under Government Order dated 11.12.1996 land was transferred to Allahabad Development Authority (hereinafter referred to as “ADA”). The relevant Paragraphs 4, 5, 6 and 7 of counter-affidavit are reproduced hereunder: “4. That, the petitioner submitted draft statement bearing letter No. P-567/76 under Section 6(1) of Urban Ceiling Act, 1976. After the survey under Section 8(4) of the above Act vide order dated 17.3.1980 the land comprising 8780.00 Sq. meter was declared surplus. 5. That, the publication of Section 10(3) of the Urban Ceiling Act, 1976 was published in official gazette on 15.6.1996 and from the above date the declared surplus land vested in the State Government. 6. That thereafter under Section 10(5) notice dated 17.7.1997 was issued to petitioner for handing over the possession of the declared surplus land. 7. That, after taking possession the declared surplus land the same was transferred to Allahabad Development Authority, Allahabad in pursuance of Government Order dated 11.12.1996. The name of the State Government recorded in the revenue record, therefore, all the proceedings were completed before Repeal Act i.e. 18.3.1999.” 4. Since it is an admitted case that no notice was issued under Section 10(6) of Act, 1976 and it is nowhere stated that petitioner ever voluntarily surrendered possession of land at any point of time, mandatory compliance as required under Section 10(6) of Act, 1976 is lacking in the present case, and when notice issued to petitioner under Section 10(5) of Act, 1976 has been disputed, it was incumbent upon ceiling authorities to have proceeded for forcible dispossession but that has not been done immediately after 30 days as required for further action from service of notice under Section 10(5). There is nothing on record to demonstrate that any such action was taken. It is, thus, clear that no forceful dispossession of petitioner’s land has ever taken place. The law requires as held in the case of State of U.P. v. Hari Ram, JT 2013 (4) SC 275, that there has to be a possession memo acknowledging forceful dispossession of tenure holder. Under the circumstances, we hold that no actual physical possession of land in question was taken from petitioner even after land was declared surplus and, therefore, petitioner is entitled to the benefit of Repeal Act, 1999. 5. Under the circumstances, we hold that no actual physical possession of land in question was taken from petitioner even after land was declared surplus and, therefore, petitioner is entitled to the benefit of Repeal Act, 1999. 5. Learned Standing Counsel submitted that possession of land in question was handed over to ADA on 11.12.1996 and in Revenue Record also, mutation was made before 18.3.1999, therefore, Repeal Act, 1999 will not be attracted in the case in hand in view of judgment of Supreme Court in State of Assam v. Bhasker Jyoti Sarma and others, (2015) 5 SCC 321 . In this regard, we find that respondents have not chosen to place on record any document or material firstly that possession was voluntarily handed over to competent authority by land owner at the stage after notice under Section 10(5) of Act, 1976 or it was taken forcibly by competent authority after issuing notice under Section 10(6). Even otherwise, no material to demonstrate that de facto actual physical possession was ever taken by competent authority under Act, 1976 has been placed on record. Similarly with regard to handing over possession to ADA, we find that it may be only at paper but nothing has been placed before this Court to show that actual physical possession was transferred to ADA and in this regard no material has been placed before this Court at all. We may also put on record that even to show that ADA is in de facto possession of land in dispute after 18.3.1999, i.e., enforcement of Repeal Act, 1999, respondents have chosen to place no material before us and, therefore, even this cannot be said that ADA being in possession of land in dispute, it is for the petitioner to demonstrate that the said possession was not taken by ADA prior to 18.3.1999 and some other point of time. In this view of the matter, we may now examine judgment in State of Assam v. Bhasker Jyoti Sarma (supra) wherein Court examined this very argument from another angle and in para 16 said: “16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.” (emphasis added) 6. Thereafter Court distinguished the judgment in State of U.P. v. Hari Ram (supra) on the ground that question, whether a dispossession in breach of Section 10(5) would vitiate the very act of dispossession was not an issue in that case. If owner of land has been dispossessed, as a matter of fact, such dispossession without notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of Repeal Act, 1999. This is the law laid down by Supreme Court in State of Assam v. Bhasker Jyoti Sarma (supra). It would be useful to reproduce observations of Court in para 17 of judgment as under: “17. - .the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so.” (emphasis added) 7. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so.” (emphasis added) 7. Court further observed that for the purpose of Section 3 of Repeal Act, 1999, it is the de facto dispossession which is relevant and not any other thing. If a person has been dispossessed and land has already vested under Section 10(3) of Act, 1976, Section 3 of Repeal Act, 1999 will not help erstwhile land owner so as to claim any benefit under Repeal Act, 1999. 8. Another matter came up before Court in State of U.P. and others v. Surendra Pratap and others, AIR 2016 SC 2712 . Therein also again question of possession was examined by Court and in para 8 and 9 of judgment, it said as under: “8. We have heard Mr. Irshad Ahmad, learned Additional Advocate General for the State in support of the appeal and Mr. Aarohi Bhalla, learned Advocate for respondent Nos. 1 and 2. The record indicates that notification under Section 10(3) of the Act was published in the official gazette on 29.4.1986 and an appropriate notice under Section 10(5) of the Act was issued by the Competent Authority on 31.3.1993. These aspects of the matter are not disputed by respondent Nos. 1 and 2 but in their submission, despite such notice under Section 10(5) of the Act, the possession was never taken over. The factum about taking over the possession finds clear mention in the possession certificate dated 20.8.1994. Further, the objections preferred by respondent Nos. 1 and 2 were dismissed vide order dated 30.6.1995 which order also records the fact that possession of the land already stood taken over. In the premises, all requisite actions contemplated under the Act were taken in accordance with law well before the enactment of the Repeal Act and the surplus vacant land stood vested with the State Government of which the possession was also taken over. The Writ Petition preferred in the year 2005, therefore, had no stateable claim and the High Court was completely in error in accepting the submissions advanced on behalf of respondent Nos. 1 and 2. 9. Moreover, in Civil Appeal Nos. The Writ Petition preferred in the year 2005, therefore, had no stateable claim and the High Court was completely in error in accepting the submissions advanced on behalf of respondent Nos. 1 and 2. 9. Moreover, in Civil Appeal Nos. 369-370 of 2016 (State of U.P. and others v. Adarsh Seva Sahakari Ltd.) decided on 19.1.2016, this Court has observed that after the vesting of the surplus land with the State Government under Section 10(5) of the Act, if any transfer of the property in question is effected, such transfer would be void ab initio and the transferee would not be entitled to challenge the alleged inaction on part of the State Government or the Competent Authority in not taking possession in compliance with the provisions under Section 10(5) of the Act.” (emphasis added) 9. Possession if taken, even if there is some defect with regard to notice under Section 10(5) or 10(6) of Act, 1976 would not attract Section 3 of Repeal Act, 1999 is the view taken by Division Bench of this Court in Shiv Ram Singh v. State of U.P. and others, 2015(5) AWC 4918 and Polu and others v. State of U.P. and another (Writ Petition No. 20035 of 2013), decided on 3.11.2016. In Shiv Ram Singh (supra) we find that original record produced before Division Bench also shows compliance of directions of 1983 and this is evident from para 10 of judgment which reads as under: “10. In the present case, the learned Chief Standing Counsel has produced the original file for the perusal of the Court. The material before the Court indicates that the Directions of 1983 were duly observed. Direction 3(2) envisages that an order in Form ULC-II has to be sent to each land holder as prescribed under Section 10(5) and the date of issue and service of the order is to be entered in Column 8 of Form ULC-I. This procedure has been complied and we may only note that a copy of the original ULC-II register has been produced for the perusal of the Court. Similarly, direction 3(3) contemplates that on possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10, entries will be made in a register in Form ULC-III. The original Form ULC-III has similarly been produced before the Court. Similarly, direction 3(3) contemplates that on possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10, entries will be made in a register in Form ULC-III. The original Form ULC-III has similarly been produced before the Court. Entries have been made in compliance with direction 3 both in ULC-II and ULC-III registers. In the present case, it is also clear from the record that on 14 February 1992, a communication was addressed by the Competent Authority to the Tehsildar drawing attention to an earlier letter dated 25 February 1987 and requesting that possession of the land be taken over. A copy of the letter dated 25 February 1987 forms part of the original record which was produced by the learned Chief Standing Counsel. On 25 June 1993, possession of the land was taken over. The possession receipt has been duly executed by the Naib Tehsildar and by the Kanoongo. In this view of the matter, we are unable to accept the contention of the petitioner that possession of the land was not taken over prior to the date of the Repeal Act.” 10. Court after having recorded finding that possession in fact was taken prior to 18.3.1999, denied benefit of Section 3 of Repeal Act, 1999. 11. We are also informed that Special Leave to Appeal (C) No. 29550 of 2015 (Shiv Ram Singh v. State of U.P. and others) against judgment in Shiv Ram Singh (supra) was dismissed by Supreme Court on 26.10.2015. 12. The law laid down in the above authorities is well established and we have no reason to take a different view in the matter, and, in fact, we are bound by judgment of Supreme Court in State of Assam v. Bhasker Jyoti Sarma (supra) but the discussion made above makes it clear that even the aforesaid exposition of law is not attracted in the case in hand for the reason that there is no material placed before us to show that competent authority or ADA at any point of time came into actual physical possession of land in dispute before 18.3.1999 or there is any de facto possession with ADA so as to require any further investigation in the claim of petitioner that he is still in possession of land in dispute. Therefore the aforesaid judgment in State of Assam v. Bhasker Jyoti Sarma (supra) and its follow up will not help respondents at all. 13. In the result, the writ petition is allowed. We hold that ceiling proceedings in the case in hand have stood abated. Respondents are, therefore, restrained from interfering with the possession of petitioner over land in dispute and it will always be open for petitioner to get the revenue record of land corrected. 14. Petitioner shall also be entitled to cost quantified to Rs. 10,000/-.