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2018 DIGILAW 1067 (ALL)

KANHIYA LAL YADAV @ KANDHAI LAL v. STATE OF U. P.

2018-05-01

MAHESH CHANDRA TRIPATHI

body2018
JUDGMENT : Mahesh Chandra Tripathi, J. Heard Sri Ashok Nath Tripathi, learned counsel for the petitioners and Sri Rajesh Kumar, learned Standing Counsel for the State-respondents. 2. The petitioners are before this Court for issuing a direction to respondent nos. 2, 3 and 4 to mutate the name of the petitioners' in revenue records in pursuance of the judgment and order dated 06.05.2009 passed by this Court in Civil Misc. Writ Petition No. 55033 of 2008 (Kanhai Lal and others v. State of U.P. and others) and Civil Misc. Writ Petition No. 56178 of 2008 (Masuria Deen and others v. State of U.P. and others) in Arazi No. 13, 15, 17, 19, 20, 21, 22, 23 and 24 village Dadanpur and Arazi No.7 in village Shaha alias Pepal Gaon, Tehsil Sadar, District Allahabad. 3. The record in question reflects that Kanhai Lal along with Dashrath Lal both sons of Baijnath along with Urmila wife of Ramesh had filed Writ Petition No. 55033 of 2008 assailing the validity of the order dated 23.7.2008 passed by the District Magistrate, Allahabad wherein he had observed that proceeding under section 10 (5) of the Urban Land (Ceiling And Regulation) Act, 1976 (in short "Act, 1976") has already been finalized and the disputed land in question has already been mutated in the State and as such the application for release of the said land could not be accorded in favour of the petitioners. It had also been asked that a direction may be issued to the respondents not to interfere in the peaceful possession of the petitioners. A categorical averment has been made in para 4 of the said writ petition that petitioners are under possession of the Area 1299.65 and 9707.05 sq. mt. (which was declared under the ceiling proceedings as surplus land). Finally, the aforesaid writ petition was taken up before the Division Bench of this Court and the same was allowed vide judgment and order dated 6.5.2009 in light of the judgment passed by the Division Bench of this Court in Civil Misc. Writ Petition No. 56178 of 2008 (Masuria Deen and others v. State of U.P. and others). 4. Finally, the aforesaid writ petition was taken up before the Division Bench of this Court and the same was allowed vide judgment and order dated 6.5.2009 in light of the judgment passed by the Division Bench of this Court in Civil Misc. Writ Petition No. 56178 of 2008 (Masuria Deen and others v. State of U.P. and others). 4. Sri Ashok Nath Tripathi, learned counsel for the petitioners has made a statement at bar that at no point of time the judgment passed by the Division Bench has been assailed by the State-respondents by preferring any Special Leave to Appeal and for all practical purposes the same has attained finality. In the aforesaid circumstances, a request has been made by him that once the aforesaid writ petition has been allowed then the name of the State Government is to be expunged from the Revenue Record and the name of the petitioners are liable to be mutated. In support of his submission, he has placed reliance in the Case of Gajanan Kamlaya Patil v. Additional Collector and Competent Authority (U.L.C.) and others (2014) SCC 523. 5. Learned counsel for the petitioners further states that the writ petition filed by Masuria Deen (Supra) was allowed by this Court relying upon the judgment passed by the Apex Court in the case of State of Tamil Nadu and another v. Mahalakshmi Ammal and others, (1996) 7 SCC 269 wherein it has been categorically held that "possession of the acquired land would be taken only by way of memorandum, panchnama, which is a legally accepted norm" but no such document had been filed by the State of U.P. alongwith the counter affidavit. The Court had also observed that in some cases, a categorical statement has been made by the petitioners that there are actual physical possession over the property in question and at no point of time, the actual possession has been taken by the State. In few of the writ petitions, counter affidavit had been filed in which this fact had not been denied and in some cases, it had been stated in the counter affidavit that possession had been taken over but it had not been substantiated by the evidence whether the actual physical possession had been taken over or not. In few of the writ petitions, counter affidavit had been filed in which this fact had not been denied and in some cases, it had been stated in the counter affidavit that possession had been taken over but it had not been substantiated by the evidence whether the actual physical possession had been taken over or not. In this backdrop, this Court was of the considered opinion that possession on paper is a symbolic possession and word 'possession' used in clause (a) of Section 3 of the Act means actual physical possession and not the symbolic possession. 6. On the matter being taken up on 28.3.2018, Sri Abhishek Shukla, learned Standing Counsel has sought time to obtain necessary instructions in the matter and thereafter the matter was listed on 10.4.2018 but the instructions could not be filed. Consequently, the matter was listed on 25.4.2018 but on account of request made by Sri Rajesh Kumar, learned Standing Counsel the case was passed over. 7. On the matter being taken up today, Sri Rajesh Kumar, learned Standing Counsel on the basis of instruction dated 17.4.2018 sent by the District Magistrate, Allahabad submits that proceeding under the Act, 1976 had been initiated against the first petitioner as well as against his father and a case was registered as Case No. 786/1976. Thereafter, a notice under Section 8 (3) of the Act 1976 was sent to the first petitioner as well as his father on 7.6.1978. Finally, the proceeding was finalized in the year 1979 wherein Sri Kanahiya Lal, Sri Dashrath Lal and Ramesh son of Baijnath were entitled for half of the share (9707.05 squire metre) and remaining was declared as surplus land and so far as, Baijnath son of Jokhu is concerned, the half of the share (12998.65 squire metre) was declared as surplus land. Consequently, notice under Section 9 of the Act was issued on 1.6.1979 and the same was served to Sri Baij Nath on 21.7.1979 as well as 14.12.1979. Thereafter the proceeding was finalized way back on 29.07.1995 as per provisions contained under Section 10(1) 10(3) as well as 10(5) of the Act, 1976. Consequently, in light of the Government Order dated 11.12.1996 the land which was declared as surplus land by the State Government, was handed over in custody of Allahabad Development Authority (in short, ADA). 8. Thereafter the proceeding was finalized way back on 29.07.1995 as per provisions contained under Section 10(1) 10(3) as well as 10(5) of the Act, 1976. Consequently, in light of the Government Order dated 11.12.1996 the land which was declared as surplus land by the State Government, was handed over in custody of Allahabad Development Authority (in short, ADA). 8. Sri Rajesh Srivastava, learned Standing Counsel has vehemently opposed the writ petition stating that the petitioners had assailed the validity of the order dated 23.7.2008 passed by the District Magistrate, Allahabad, wherein a categorical mention has been made that the notification under Section 10 (5) of the Act 1976 has been done and without setting aside the said order no relief can be extended to the petitioners and as such the direction for mutating the name of the petitioners is impermissible in absence of setting aside the said order. 9. Heard rival submissions and perused the record. 10. Record in question reflects that the proceedings under Act 1976 was initiated against Kanhai Lal Yadav along with his father late Sri Baijnath. 11. The Act 1976 was repealed by the Repeal Act, 1999 (15 of 1999) (hereinafter referred to as the Act "1999"). Section 3 of the Act reads as under:- "3. Saving.- (1) the repeal of the principal Act shall not affect- (a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorized by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any Court to the contrary: (c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20. (2) Where;- (a) any land is deemed to have vested in the State Government under Sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority; and (b) any amount has been paid by the State Government with respect to such land then such land shall not be restored unless the amount paid, if any, has been refunded to the State Government." 12. Once the repeal Act has come into force in the year 1999, the petitioners' land shall not be treated to have been declared as 'vacant land' under the repeal Act. With the aforesaid facts, the aforesaid writ petition was allowed by this Court vide judgment and order dated 6.5.2009. The operative portion of the judgment and order dated 6.5.2009 is reproduced hereunder:- "A perusal of Clause (a) of sub-section 2 of Section 3 clearly provides where the possession of the land has not been taken over the said land shall not vet in the State despite the proceedings having drawn. Here the possession will mean the actual physical possession. The categorical statement has been made in all the writ petitions that the possession has not been taken over by the State till date and petitioners are in possession. In few of the writ petition counter has been filed in which this fact has not been denied and in some cases in counter affidavit it has been stated that possession has been taken over but it has not been substantiated by evidence whether actual physical possession has been taken over or not. There is no receipt obtained by the Collector concerned from the owner of the land handing over the possession. In the case of State of Tamil Nadu & Anr. v. Mahalakshmi Ammal & Ors. reported in (1996) 7 SCC 269 has categorically held that "possession of the acquired land would be taken only by way of memorandum, panchnama, which is a legally accepted norm." There is no such document with counter affidavit filed by State of U.P. on record. Possession on paper is a symbolic possession and word 'possession used in Clause a of Section (2) of Section 3 of the Act mean actual physical possession and not the symbolic possession. After the repealing of the Urban Land (Ceiling and Regulation) Act 1976 by Act No.15 of 1999 Urban Land (Ceiling and Regulation Repeal) Act 1999 the petitioners are entitled to the benefit of Section 3 of the Act No.15 of 1999. The petitioners land shall not be treated to have been declared as vacant land under the repeal Act. For the reasons recorded above the instant writ petition along with all the writ petitions relating to similar dispute are allowed. No order as to cost." 13. The petitioners land shall not be treated to have been declared as vacant land under the repeal Act. For the reasons recorded above the instant writ petition along with all the writ petitions relating to similar dispute are allowed. No order as to cost." 13. In this backdrop, the objection/claim of the petitioners was decided by the then District Magistrate, Allahabad on 23.07.2008 which was assailed by the petitioners in the aforementioned writ petition. The District Magistrate, Allahabad while sending instructions also directed the ADA to file a review application in the aforesaid writ petition. 14. Instruction dated 18.4.2018 is taken on record. Once the factual and legal aspects of the matter are not disputed by learned Standing Counsel, then with the consent of learned counsel for the parties, this Court has proceeded to decide the claim set up by the petitioners in the present writ petition on the basis of the instruction so received from District Magistrate, Allahabad. So far as the surplus land is concerned, undoubtedly, the proceeding has been finalized upto Section 10(5) of the Act 1976 but nothing has been brought on record either before the Division Bench or before this Court while submitting the instruction dated 18.4.2018 to suggest that the proceeding/Gazette notification has ever been made as per the provision contained 10 (6) of the Act 1976. As per Section 3 of the Act 1999, possession means actual physical possession and not the symbolic possession. Nothing contrary has ever been brought on record either before the Division Bench or before this Court to suggest that at any point of time the respondent has taken actual physical possession of the disputed land, contrarily it is claimed that the petitioners are in actual physical possession of the land in dispute and so far as this aspect is concerned, it is not the jurisdiction of this Court, whereas the issue in hand has already been settled by the Division Bench of this Court in earlier round of litigation, in light of the judgment passed in the case of Masuria Deen (Supra). 15. The writ petition of the petitioners was also allowed by judgment and order dated 6.5.2009. 15. The writ petition of the petitioners was also allowed by judgment and order dated 6.5.2009. It is also admitted fact that at no point of time the said judgment has ever been assailed by the State-respondent or by the ADA even though it is claimed on the basis of Government Order dated 11.12.1996 and the ADA is the custodian of the disputed land. 16. In the aforesaid facts and circumstances, the Court is of the considered opinion that once the controversy has been put at rest by the Division Bench of this Court in Kanhai (Supra) in the Writ Petition No. 55033 of 2008 which was allowed on the basis of judgment passed in Masuria Deen (Supra) then in such situation, the claim set up by the petitioners by means of the present writ petition is sustainable and accordingly the writ petition stands allowed with direction to the Collector/District Magistrate, Allahabad to ensure the entry of the petitioners' name in the revenue record regarding the land which has been declared as surplus forthwith.