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2018 DIGILAW 1280 (ALL)

Mahesh Kumar Agrawal v. State of U. P.

2018-05-21

MAHESH CHANDRA TRIPATHI

body2018
JUDGMENT : MAHESH CHANDRA TRIPATHI, J. 1. Heard Sri B.P. Singh, Senior Advocate assisted by Sri Santosh Kumar Pandey and Sri Rajnish Kumar Pandey, appearing for the petitioner and Shri Sanjay Kumar Singh, learned Standing Counsel for all the respondents. 2. The petitioner is before this Court assailing the validity of order dated 12.12.2017 passed by respondent no. 4, Assistant Collector/Tehsildar (Judicial), Tehsil Sadar, District Bareilly, whereby he has rejected the mutation application filed by the petitioner under Section 34 of U.P. Revenue Code, 2006 in respect of Gata No.278 situated in Village Saidpur Hakans, Tehsil Sadar, District Bareilly on the ground that the name of vendor has not been recorded in the revenue record, whereas the competent authority had issued no objection certificate in favour of the vendor. 3. Record in question reflects that the Gata No.278 area 0.683 hectares situated at Village Saidpur Hakans, Tehsil Sadar, District Bareilly was recorded in the names of Smt. Tasmeelan, wife of Badalu, Smt. Idrisian, wife of Fariyad Husain, Abid Hussain and Chhange, sons of Noor Mohammad; Faffar Ahmad, Zabbar Ahmad, Intezar Ahmad, Mukhtyar Ahmad, sons of Faiz Ahmad in the revenue record. The land measuring 721.36 sq. meters of plot no. 278 in question was declared surplus in the hands of the recorded tenure holder Abdul Hamid, father of Smt. Tasmeelan and Smt. Idrisan under the provisions of Urban Land (Ceiling & Regulations) Act, 1976 (in short the 'Act'). Admittedly, Abdul Hamid died on 23-12-1980. When the respondents authorities tried to interfere in the possession of Smt. Tasmeelan and Smt. Idrisan, daughters of Abdul Hamid, they approached this Court by filing writ petition no.50844 of 2008, alleging that since they are still in actual physical possession over the land declared surplus, as such, the possession cannot be taken from them as the proceedings stand abated on account of Repeal Act, 1999. The proceedings were drawn against a dead person, hence, a nullity. The said writ petition was disposed of on 26-09-2008 in the same terms and directions as contained in the order dated 21-08-2008 passed in writ petition no. 68691 of 2006. By the said order, they were given liberty to make a representation before the District Magistrate/Collector requiring him to decide the same by means of a reasoned and speaking order, if possible within a period of three months from the date of presentation of the representation. 4. 68691 of 2006. By the said order, they were given liberty to make a representation before the District Magistrate/Collector requiring him to decide the same by means of a reasoned and speaking order, if possible within a period of three months from the date of presentation of the representation. 4. In pursuance of the aforesaid order, Smt. Tasmeelan and Smt. Idrisan made a representation on 31-10-2008 alleging that their father namely Abdul Hamid died on 23-12-1980 and the order dated 06-05-1981 declaring 721.36 sq. meter land as surplus was passed against a dead person without any notice or opportunity to them, who are his legal heirs and representatives; there exists grove over the land in dispute; they are in actual physical possession over the same; no notice under Section 10(3), 10(5) & 10(6) was ever served upon them; the alleged 'Dakhalnama' is a fraudulent document and no possession was ever taken from them. The District Magistrate/Collector, Bareilly vide order dated 29-08-2009 rejected the representation holding that the possession of the land in dispute was taken on 23-12-1985 and thus the provisions of the Repeal Act are not attracted. Smt. Tasmeelan and Smt. Idrisan again approached this Court by preferring Writ C No.70882 of 2009 (Smt. Tasmeelan and another vs. State of UP and others). The aforesaid writ petition was allowed by a Division Bench of this Court on 27.7.2015 with following observations:- "We have considered the argument advanced on behalf of the parties and perused the record. The District Magistrate/Collector, Bareilly after analyzing the record has returned a finding that vide order dated 06-05-1981 passed under Section 8(4) of the Act in case no. 456/1274/21/80 (State vs. Abdul Hamid) an area of 721.36 sq. meter was declared surplus and vide order dated 10-09-1981 notice under Section 10(1) was directed to be published and notice under Section 10(3) was directed to be published vide order dated 15-09-1983. Thereafter, notice under Section 10(5) was issued in the name of Abdul Hamid on 14-10-1985 and when he did not hand over possession the same was taken over on 23-12-1985. From a perusal of the aforesaid fact, it is clear that from the date of the order passed under Section 10(4) declaring the land as surplus till possession was taken all proceedings have been drawn in the name of a dead person. From a perusal of the aforesaid fact, it is clear that from the date of the order passed under Section 10(4) declaring the land as surplus till possession was taken all proceedings have been drawn in the name of a dead person. The order passed by the District Magistrate goes to show that when notice under Section 11(8) was issued on 07-04-1997 for receiving the compensation, the process server submitted a report that recorded tenure holder Abdul Hamid has died. Thereafter, the competent authority vide letter dated 14-08-1997 required the Kanoongo to make an inquiry with regard to heirs and legal representatives and thereafter, no proceedings have been undertaken. The aforesaid findings further strengthen the case set up by the petitioner that entire proceedings were drawn against a dead person and thus are a nullity. So far as the actual possession is concerned, it is clear that notice under Section 10(5) of the Act was issued in the name of a dead person. The possession memo does not record the details of the person from whom possession was taken. The order of the District Magistrate/Collector, Bareilly does not refer to any proceedings having been undertaken under Section 10(6) of the Act taking forcible possession. From the aforesaid facts and discussions, we are satisfied that the entire proceedings drawn against a dead person are not only a nullity but actual physical possession of the land was never taken by the State Government. There is no material on record to demonstrate that possession was handed over by the petitioner voluntarily or was taken over by use of force. The facts clearly indicate that memo of possession, on which heavy reliance has been placed by the respondents, is nothing but a document prepared by the officials of the State Government sitting in their office. Once the State Government never came in possession over the land in dispute, the petitioners are entitled to get the benefit of Repeal Act, 1999 and the writ petition deserves to be allowed. Writ petition succeeds and stands allowed. The impugned order dated 29-08-2009 passed by the District Magistrate/Collector, Bareilly (Annexure - 8 to the writ petition) is quashed. Once the State Government never came in possession over the land in dispute, the petitioners are entitled to get the benefit of Repeal Act, 1999 and the writ petition deserves to be allowed. Writ petition succeeds and stands allowed. The impugned order dated 29-08-2009 passed by the District Magistrate/Collector, Bareilly (Annexure - 8 to the writ petition) is quashed. A writ of mandamus is issued commanding the respondents not to interfere in the possession of the petitioners over the land in dispute and they are further directed to restore the entry of name of the petitioners in the revenue record. However, there shall be no order as to costs." 5. Shri B.P. Singh, Senior Advocate appearing for the petitioner submits that the aforesaid writ petition has been allowed by the Division Bench on 27.7.2015 and while setting aside the order dated 29.08.2009 passed by District Magistrate/Collector, Bareilly, the direction was issued to respondents not to interfere in their possession over the land in dispute and they were further directed to restore their names in the revenue record, and at no point of time, the judgment passed by the Division Bench dated 27.07.2015 passed in the aforesaid writ petition has ever been assailed by the State respondents before Hon'ble Apex Court and the same has attained finality. It has also been claimed that the erstwhile owner has executed the registered sale deed in favour of the petitioner on 9.1.2017 and as such the petitioner is the subsequent purchaser of the property in question. The respondents cannot deny the rightful claim of the petitioner for recording his name in the revenue record. The request has been made that the order impugned cannot sustain and as such this Court should come for rescue and reprieve of the petitioner. 6. The respondents cannot deny the rightful claim of the petitioner for recording his name in the revenue record. The request has been made that the order impugned cannot sustain and as such this Court should come for rescue and reprieve of the petitioner. 6. Sri V.P. Singh, learned Senior Counsel has also placed reliance on the judgment dated 1.5.2018 passed by this Court in Writ Petition No. 11258 of 2018 (Kanhiya Lal Yadav @ Kandhai Lal @ Kanhai and 2 Others vs. State of U.P. and 4 others) wherein it was held that once the controversy has been put at rest by the Division Bench of this Court in Writ Petition No. 55033 of 2008, which was allowed on the basis of judgment passed in Masuria Deen then in such situation the claim set up by the petitioners in the said writ petition was found to be sustainable and the said writ petition was 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. The request has been made that the similar benefit may also be extended in favour of the petitioner. 7. Even though, in the matter a detailed counter affidavit has been filed but so far the factual and legal aspect is concerned, the same has not been denied by learned Standing Counsel appearing for the respondents. 8. The Court has proceeded to examine the record in question and finds that? so far as the Division Bench judgment in Kanhai' case is concerned, nothing has been brought on record to indicate or suggest that at any point of time, the same has been assailed by the State respondents by preferring Special Leave to Appeal and as such the same has attained finality. This Court is of the opinion that in such a situation, the name of the State is liable to be expunged from the revenue record and the name of the owner of property in question qua to the surplus land is to be recorded forthwith. 9. This Court is of the opinion that in such a situation, the name of the State is liable to be expunged from the revenue record and the name of the owner of property in question qua to the surplus land is to be recorded forthwith. 9. In view of the above facts and circumstances, following the judgment passed in Kanhai (supra) in Writ Petition No. 55033 of 2008, which was allowed on the basis of judgment passed in Masuria Deen, the claim set up by the petitioner by means of the present writ petition is sustainable and accordingly the writ petition stands allowed with direction to the Collector/District Magistrate, Bareilly to ensure the entry of the petitioner's name in the revenue record regarding the land, which has been declared as surplus forthwith.