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2018 DIGILAW 1091 (ALL)

Rati Ram v. State of U. P.

2018-05-03

A.P.SAHI, SHASHI KANT

body2018
JUDGMENT : Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondent nos. 1 and 2. 2. It seems that on an earlier occasion the State was called upon to get with itself the records available in order to assist the Court as no supporting document had been filed alongwith the counter affidavit to establish that the possession had been taken over from the petitioner. However, learned Standing Counsel submits that he has a copy of the notice under Section 10(5) with him. Learned counsel for the petitioner has produced a certified copy of the notice under Section 10(5) as also of the possession memo which has been made the basis to claim that the possession was taken from the petitioner on 29th October, 1992. Since certified copies are before the Court same can be taken cognizance of. 3. Contention of the petitioner is that the disputed land of the petitioner, came to be declared surplus against which an appeal had been filed under the Urban Land Ceiling Act, 1976 that was pending. It is during the pendency of the appeal that the Repeal Act came into effect on 20th March, 1999. The appeal stood abated and thereafter the petitioner proceeded for retention of the land in terms of the Repeal Act. It is urged that the learned District Judge, Saharanpur wrongly held that since the Act has been repealed therefore the appeal was liable to be rejected, but to the contrary the appeal could have been abated and not rejected. Prayer has been made to quash the District Judge's order dated 04.01.2001 as also the order whereby the land was declared surplus. 4. A separate prayer has been made for the issuance of suitable writ to restrain the respondents from giving effect to the order declaring the land to be surplus on the ground that the petitioner continued in actual physical possession of the land as on the date of enforcement of the Repeal Act No. 15 of 1999. 5. A counter affidavit has been filed by the State and it has been alleged therein that the notice under Section 10(5) was issued and possession was taken. There is no indication that physical possession was taken under Section 10(6) of the Act. 6. 5. A counter affidavit has been filed by the State and it has been alleged therein that the notice under Section 10(5) was issued and possession was taken. There is no indication that physical possession was taken under Section 10(6) of the Act. 6. We have considered the submissions raised and upon a perusal of the certified copy of the notice under Section 10(5), it is evident that the notice is dated 29th October, 1987. There is no indication of any receipt by the land holder/petitioner or any other person nor is there any endorsement to that effect in the notice. It appears that the notice was prepared and it is quite possible that it remained a useful piece of stationary for the respondent without being supplemented by any actual execution thereof. 7. Not only this the possession memo dated 29th October, 1992 was prepared after five years of the issuance of the notice under Section 10(5). There is no explanation in the counter affidavit that if the possession had been resorted to upon issuance of the notice in 1987, even if there was no response, whether any steps were taken within thirty days to ensure compliance under Section 10(6). In the absence of any such material there is no occasion for this Court to presume that possession was either voluntarily delivered by the petitioner or forcibly taken by the respondents. The possession memo nowhere discloses as to how the petitioner delivered possession nor the same is witnessed by any one. One ceiling official is alleged to have handed over possession to another revenue official. 8. The question of taking over possession after five years of the notice without there being any supporting document therefore does not appear to arise and the claim of the petitioner that he continued in actual physical possession appears to have substance. It is substantiated by facts stated in the rejoinder affidavit filed by the petitioner bringing on record relevant revenue statements to indicate physical possession and sowing of crops as late as in the year 2005 (1412 Fasli). In such circumstances in the absence of any material to support the fact that actual physical possession had been validly taken over we find no reason to refuse the relief to the petitioner. 9. The 'Dakhalnama' a certified copy whereof has been produced before us does not even bear the signatures of any attesting witness. In such circumstances in the absence of any material to support the fact that actual physical possession had been validly taken over we find no reason to refuse the relief to the petitioner. 9. The 'Dakhalnama' a certified copy whereof has been produced before us does not even bear the signatures of any attesting witness. We find this to be a lapse and patent illegality the benefit whereof has to be given to the land holder in view of the Division Bench judgment in the case of Mohd. Islam and 3 Others Vs. State of U.P. and Others, Writ Petition No. 15864 of 2015 decided on 4th December, 2017. It was also a case of District – Saharanpur. We extract paragraph nos. 44 to 47 of the said judgment which are as under : “44. Since, in the present case, neither factum of taking actual physical possession by Competent Authority under Ceiling Act has been fortified by placing any document nor factum of possession of Development Authority at any point of time has been shown, therefore, argument advanced by learned Standing Counsel on the basis of State of Assam (supra) will not help. 45. Viewed from the above exposition of law we find in the present case that no such exercise of issuing notice under Section 10(6) of the Act, 1976 and thereafter execution of memo on the spot had taken place which is mandatory for ceiling authorities as admittedly the original tenure-holder and then his successors had never voluntarily surrendered the possession of land. In the absence of voluntary surrender of possession of surplus land, the authorities were required to proceed with forcible possession. The document of possession memo would not by itself evidence the actual taking of possession unless it is witnessed by two independent persons acknowledging the act of forcible possession. As discussed above in the earlier part of this judgment we are not able to accept the alleged possession memo worth calling a document as such in the absence of certain requisites, nor does it bear the details of witnesses who signed the document. It bears mainly signatures of Chackbandi Lekhpal, a person taking possession and then the document has been directed to be kept on file. This is no way of taking forcible possession nor, a document worth calling possession memo. It bears mainly signatures of Chackbandi Lekhpal, a person taking possession and then the document has been directed to be kept on file. This is no way of taking forcible possession nor, a document worth calling possession memo. A mere issuance of notification under Section 10(3) and notice under Section 10 (5) regarding delivery of possession does not amount to actual delivery of possession of land more especially in the face of the fact that the tenure-holder had in fact not voluntarily made surrender of possession of surplus land and no proceeding under Section 10(6) had taken place. 46. Since we have held that possession memo dated 20.06.1993 is not a possession memo and is a void document for want of necessary compliance under Section 10(6) of the Act, 1976, the petitioners are entitled to the benefit under Section 4 of the Repeal Act, 1999 that came into force w.e.f. 20.03.1999. 47. We may also place on record that respondents claim that possession of land in question was handed over to Saharanpur Development Authority pursuant to Government Order dated 29.12.1984 but here also we find that no material has been placed on record to show that any such actual physical possession was handed over to Saharanpur Development Authority and the said authority is in de facto possession of land in dispute. Except bare averment made in the counter affidavit respondent have not chosen to place anything on record to support the stand that de facto possession over land in dispute is that of Saharanpur Development Authority. Therefore even this stand has no legs to stand and is rejected.” 10. Consequently, for all the reasons aforesaid we are satisfied that the actual physical possession of the land had not been taken in accordance with the procedure prescribed in law and consequently the writ petition deserves to be allowed. 11. Learned Standing Counsel urged that appropriate relief has not been claimed for by the petitioner. This argument cannot be countenanced because it is settled proposition of law that the Court has always the power to mould the relief to which the petitioner is entitled. In the present case the petitioner has made a appropriate prayer claiming appropriate relief and even otherwise the entire case relates to the benefits arising out of Repeal Act No. 15 of 1999 to which we find the petitioner to be entitled. 12. In the present case the petitioner has made a appropriate prayer claiming appropriate relief and even otherwise the entire case relates to the benefits arising out of Repeal Act No. 15 of 1999 to which we find the petitioner to be entitled. 12. No other material has been brought before us so as to take a contrary view. 13. We accordingly allow the writ petition and declare that the petitioner shall be entitled to retain the disputed land which shall not be treated to be surplus in the hands of the petitioner and the same shall stand exempted accordingly. Any consequential action taken by the State for either retaining the land or handing it over to any other body, would stand annulled. There is no pleading or proof in the counter affidavit of the property having been transferred to some other authority. The respondents shall accordingly correct the revenue entries in favour of the petitioner. The certified copies produced before us shall be retained on the record of the case.