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2018 DIGILAW 1327 (ALL)

Jangi Lal v. State of U. P.

2018-05-24

A.P.SAHI, SHASHI KANT

body2018
JUDGMENT : Amreshwar Pratap Sahi, J. Heard Sri Mansoor Ahmad, learned counsel for the petitioners, Sri Mohan Srivastava, learned Standing Counsel for the State and Sri Ram Raj Singh, learned counsel for Allahabad Development Authority. In spite of the notices having been served and information having been tendered, no one appeared on behalf of the newly impleaded respondent no.5. 2. This writ petition has been filed praying for a mandamus commanding the respondents not to interfere with the possession of the petitioners over the plots in dispute and to expunge the entry in favour of the State Government from Revenue records keeping in view the fact that the land which was declared surplus under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the "1976 Act") remained in the possession of the petitioners and their father as on the date of promulgation of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (hereinafter referred to as the "Repeal Act, 1999") in 1999 and therefore they are entitled to retain land as land-holders thereof. 3. The petitioners claiming one-fourth share equal to an area of 11404.39 Sq.mts. of the entire plot contending that neither any actual physical possession was taken over from them nor were they ever dispossessed in accordance with law. For this averments contained in the writ petition are that neither any notice was served under Section 10(5) of the 1976 Act on the petitioners or their ancestor Budhani who was the recorded landholder nor was possession delivered voluntarily by them or taken forcibly from them in terms of Section 10(6) of the 1976 Act. 4. The respondents including the State and the Development Authority have filed counter affidavits asserting that the notice under Section 10(5) of the 1976 Act was served on one Radhey Shyam son of the tenure holder namely Budhani and the notice having been effected the allegation that no notice was served is wrong. Apart from this, it is submitted that possession was actually taken over for which they relied on the endorsement dated 11th of July, 1990 which is in the shape of a report endorsed on the reverse of the notice under Section 10(5) according to which possession was transferred to the State through the Revenue officials. Apart from this, it is submitted that possession was actually taken over for which they relied on the endorsement dated 11th of July, 1990 which is in the shape of a report endorsed on the reverse of the notice under Section 10(5) according to which possession was transferred to the State through the Revenue officials. The possession was taken after endorsing the service of notice on Radhey Shyam indicating that Radhey Shyam is the son of Budhani, who has received the said notice. 5. The counter affidavit of the Allahabad Development Authority also restates this position of having handed over possession after service of notice on the tenure holder on 20.09.1990 under Section 10(5) of the 1976 Act. There is a variation in the date of the said notice in the counter affidavit of the Development Authority. In paragraph 17 of the counter affidavit of the Development Authority it has been stated that there was no need at all to initiate any steps for taking forcible possession under Section 10(6) of the 1976 Act presumably on the ground that notices had been received by Radhey Shyam on behalf of the tenure holder Budhani under Section 10(5) of 1976 Act. 6. The Development Authority further states that it was handed over physical possession on 11th of December, 1996 i.e. before the promulgation of the Repeal Act, 1999 and consequently the contention of the petitioners that they continued in possession is absolutely incorrect and reliance has been placed on a large number of decisions quoted in the counter affidavit to substantiate the aforesaid submissions including the judgment of Apex Court in the case of State of Assam Vs. Bhasker Jyoti Sarma and others, 2015(5) SCC 321 . 7. On the strength of the said judgment learned counsel for the State as well as for the Allahabad Development Authority through Ram Raj Singh have urged that if actual physical possession has been taken prior to the Repeal Act, 1999 then in such circumstances the petitioners could not be permitted to seek relief through a writ petition filed in the year 2010. 8. We had summoned the original records which have been produced by the learned Standing Counsel in order to ascertain the correctness or otherwise of the said averments. 8. We had summoned the original records which have been produced by the learned Standing Counsel in order to ascertain the correctness or otherwise of the said averments. The reason for production of the records was not only to verify the correctness of these averments but also the status of the actual service of notice either on the land holder/tenure holder or his successors who have filed the present writ petition. 9. Care is being taken for perusing the records for the additional reason that we have come across the status and affairs of the Urban Land Ceiling office at Allahabad through the affidavit of the present District Magistrate, Allahabad filed in Writ Petition No.14817 of 1998 (Jawahar Lal Jaiswal Vs. State of U.P. & Ors.) where it has been clearly stated that about 7000 files relating to Urban Land Ceiling are missing from the Urban Land Ceiling office for which an FIR has been lodged. Fortunately, in this case the records are available and have been produced before the Court. 10. After the counter affidavit was filed, the petitioners have filed a rejoinder affidavit to the counter affidavit filed on behalf of the State and in paragraph 5 thereof it has been categorically stated that Radhey Shyam is not the son of the recorded tenure holder in the present case namely who is Budhani nor any notice was served under Section 10(5) either on Budhani or his legal heirs including the petitioners. Reliance has also been placed on paragraph 3 of the writ petition where the petitioners have disclosed the entire pedigree of their family. 11. The pedigree, as brought forth in paragraph 3 of the writ petition, has been replied to in paragraph 5 of the counter affidavit of the State which categorically states that the same does not need any comments. None of the petitioners are named Radhey Shyam nor does the name Radhey Shyam appear in the pedigree. Thus it is the clear case of the petitioners that Radhey Shyam is not the son of Budhani nor his legal heir and consequently paragraph 3 of the counter affidavit of the State and paragraph 14 of the counter affidavit of the Development Authority in our considered opinion makes a totally incorrect statement of fact about Radhey Shyam being the son of the tenure holder Budhani. Not only this the actual endorsement of the service of notice as contained on the overleaf of the original notice under Section 10(5) dated 20.02.1990, that is part of the original record produced before us, also states that the notice under Section 10(5) has been served on the son of Budhani, Radhey Shayam on 17.03.1990. The said endorsement is therefore also patently false inasmuch as Radhey Shyam is not the son of Budhani. This clearly therefore establishes that the service of notice is neither on Budhani nor on any of his heirs as per the disclosed pedigree which has not been denied by the respondents. 12. It is pointed out by learned Standing Counsel and learned counsel for the Development Authority that the recorded co-tenure holders includes the name of Radhey Shyam who is son of Jokhu Lal. This is evident from a copy of the Khatauni which has been filed by the petitioners himself as Annexure 3 to the writ petition. There is no doubt that one of the co-tenure holders might have been Jokhu Lal whose son was Radhey Shyam but this reinforces the stand of the petitioners that Radhey Shyam is not the son of Budhani and therefore any service of notice on Radhey Shyam cannot be construed to be a service of notice on the petitioners. Radhey Shyam being a co-tenure holder was entitled to receive notice in so far as he was affected in his own individual capacity by any such proceedings and similarly the petitioners who stand recorded in the same Revenue record were entitled to be served with a separate notice either on their father Budhani or them. There is therefore no evidence of either dispatch or service of notice on the petitioners 13. It is also evident that in the absence of any relationship having been established between Radhey Shyam and Budhai as alleged in the endorsement dated 17.03.1990 and in the affidavits of the respondents, the service of notice on Radhey Shyam cannot be a factual or lawful service of notice either on Budhani or his heirs. The affidavits are patently incorrect by describing Radhey Shyam as the son of Budhani. 14. The affidavits are patently incorrect by describing Radhey Shyam as the son of Budhani. 14. Consequently, we are of the considered opinion that keeping in view the said status of records there is no dispatch or service of notice either on Budhani or his heirs who are the petitioners before us in terms of Section 10(5) of 1976 Act. There is a complete absence of any such effort having been made to put the petitioners to notice for dispossession. 15. Coming to the aspect of actual physical dispossession, it is on the strength of such incorrect endorsement on the notice under Section 10(5) that the possession appears to have been symbolically alleged to have been transferred in the name of the Collector on 11th of July, 1990. This does not amount to any voluntary surrender of possession by the petitioners nor does it amount to taking over of symbolical possession legally from the petitioners. 16. Coming to the aspect of actually dispossessing the petitioners, there is nothing in the counter affidavit either of the State or of the Development Authority to demonstrate that the land has been developed or actually physically occupied by them so as to indicate their physical presence over the land. The petitioners have been continuously stating that they continued to be in actual physical possession of the land. Thus it was a burden on the State to have established that the petitioners have been physically dispossessed from the land either by voluntarily surrendering it or having been forcibly dispossessed from the same. The State has not been able to establish any such dispossession from the records or any material filed along with counter affidavit. 17. It is evident from the statement made in the counter affidavit that there is no need to initiate proceedings under Section 10(6) of the 1976 Act. In the aforesaid circumstances it is now established that no steps were taken for forcibly dispossessing the petitioners under sub-section (6) of Section 10 of the 1976 Act. 18. Consequently, for all the reasons stated hereinabove there is neither any lawful symbolical dispossession or actual physical dispossession of the petitioners so as to deny them the benefits of the Repeal Act, 1999. The original records also do not in any way support the contention raised in the counter affidavits of both the respondents. 19. 18. Consequently, for all the reasons stated hereinabove there is neither any lawful symbolical dispossession or actual physical dispossession of the petitioners so as to deny them the benefits of the Repeal Act, 1999. The original records also do not in any way support the contention raised in the counter affidavits of both the respondents. 19. One of the submissions raised by learned Standing Counsel has been is that the writ petition was filed in the year 2010 and therefore the claim made for retaining the land is after a long span of time. The petitioners should therefore be treated to have abandoned their claim for retaining possession. We are unable to accept this argument, inasmuch as, when the respondents themselves have failed to establish the actual physical dispossession of the petitioners then this argument will have no legs to stand and the judgment of the Apex Court relied upon by the respondents in the case of Bhasker Jyoti Shrama (supra) would not come to their aid. To the contrary the judgment delivered by a Division Bench of this Court, considering all the Supreme Court decisions, in Lalji Vs. State of U.P. & 2 Ors. 2018 (5) ADJ 541 squarely covers this issue and therefore the arguments raised on behalf of the respondents are accordingly rejected. 20. The writ petition is therefore allowed. It is hereby declared that the petitioners are entitled to retain the land in dispute as they are entitled to the benefit of the Repeal Act, 1999. Accordingly the Revenue records and entries shall be corrected by the respondents by passing appropriate orders. In re: Civil Misc. Impleadment Application No.131394 of 2016 21. This application for impleadment has been moved by Allahabad Development Authority through its Secretary through Sri Ram Raj Singh, Advocate, who has put in appearance on behalf of Allahabad Development Authority. 22. It appears that this application was filed without noticing the fact that an application on behalf of Allahabad Development Authority for impleadment had already been filed on 3rd of May, 2010 and the same was allowed on 19th of November, 2015 directing the impleadment of Allahabad Development Authority as respondent no.6. 23. 22. It appears that this application was filed without noticing the fact that an application on behalf of Allahabad Development Authority for impleadment had already been filed on 3rd of May, 2010 and the same was allowed on 19th of November, 2015 directing the impleadment of Allahabad Development Authority as respondent no.6. 23. This application is therefore superfluous and is accordingly consigned to records with a direction to the office and to the learned counsel for Development Authority to carry out necessary corrections in the array of parties and implead Allahabad Development Authority though its Secretary as respondent no.6 within three days, as directed vide order dated 19.11.2015 passed on Application No.134886 of 2010.