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2018 DIGILAW 2074 (ALL)

BAL KISHOR BHATNAGAR v. STATE OF U. P.

2018-09-28

AJIT KUMAR, SHASHI KANT GUPTA

body2018
JUDGMENT Hon’ble Ajit Kumar, J.—Heard Sri Satish Chandra Srivastava, learned counsel for the petitioner, Sri Satish Chaturvedi, learned counsel appearing on behalf of the Moradabad Development Authority, learned Standing Counsel appearing on behalf of the State and perused the record. 2. Petitioner has approached this Court invoking its extraordinary jurisdiction under Article 226 of the Constitution of India for the relief in the nature of mandamus commanding the respondents, particularly respondent Nos. 2 and 3 to provide land to the petitioner in lieu of his land of plot No. 90 measuring 1443.83 square meters, possession of which has been taken by the State and admittedly handed over to Moradabad Development Authority (for brevity ‘MDA’), the third respondent. 3. Brief facts of the case as we sketch in a narrow compass, is that the petitioner alongwith his five other brothers jointly owned the land of two plots bearing plot Nos. 516 and 90 with total area of 2588.55 square meters on the appointed day when the U.P. Urban (Ceiling and Regulation) Act, 1976 (for brevity ‘Ceiling Act’) came into force. The aforesaid land was declared surplus in ceiling proceedings under the orders of the Prescribed Authority dated 29.10.1980 and 3.12.1980. All the brothers including the petitioner preferred six appeals against the decision of the Prescribed Authority on the ground that no statement had been prepared under Section 8(1)(2) nor, any such draft statement was served upon the petitioner and his brothers and therefore, the entire ceiling proceedings in respect of the land in question declaring it to be surplus land was void. Hearing the appeals, the IVth Additional District Judge, Moradabad vide order dated 24.5.1995 allowed the same by setting aside both the order of the Prescribed Authority: one, rejecting the objection to the alleged draft statement; and second, declaring the land in question as surplus land. Against the order of the appellate authority, the State preferred writ petition before this Court which came to be dismissed on 6.3.1997. Against the order passed by this Court dated 6.3.1997, the State of U.P. preferred a Special Leave Petition (for brevity ‘SLP’) before the Supreme Court and that too came to be dismissed on 13.5.1998. Against the order of the appellate authority, the State preferred writ petition before this Court which came to be dismissed on 6.3.1997. Against the order passed by this Court dated 6.3.1997, the State of U.P. preferred a Special Leave Petition (for brevity ‘SLP’) before the Supreme Court and that too came to be dismissed on 13.5.1998. In the meanwhile, the State of U.P. Enacted the U.P. Land (Ceiling and Regulation) Repeal Act, 1999 (for brevity ‘Repeal Act’), whereunder vide Section 4 the proceedings relating to any order made or purported to be made under the principal Act (Ceiling Act) and ceiling proceedings were directed to be abated. 4. It is notable that after the Prescribed Authority had declared the land in question to be surplus land though later set aside in appeal but before any appeal could be preferred by the petitioner under Ceiling Act against the order declaring the land as surplus land, after issuing notice under Section 10(5) of the Ceiling Act, it appears that State of U.P. through Collector, Moradabad took forceful possession of the land and taking aid to the Government Order dated 4.6.1987 handed over the possession to the third respondent on 15.9.1988 by executing possession memo. It is admitted to the parties that actual physical possession of the land continued to exist with the third respondent. 5. Since the matter under Ceiling Act in appeal preferred by the petitioner came to be remanded to the Prescribed Authority under the order dated 29.5.1995 by the appellate authority, the matter remained pending as ‘proceedings pending’ before the Prescribed Authority when the Repeal Act came into force. Thus, in view of Section 4 of the Repeal Act, the Prescribed Authority ultimately abated the ceiling proceedings in respect of the land in question under its order dated 4.3.2003. Petitioner applied for mutation before the competent authority and the competent authority vide order dated 28.5.2003 directed for mutation of the name of the petitioner over the land in question. Thus, in view of Section 4 of the Repeal Act, the Prescribed Authority ultimately abated the ceiling proceedings in respect of the land in question under its order dated 4.3.2003. Petitioner applied for mutation before the competent authority and the competent authority vide order dated 28.5.2003 directed for mutation of the name of the petitioner over the land in question. Thus, the name of the petitioner in the revenue record was restored and the land in question was again entered in the name of the petitioner and has therefore, petitioner demanded for return of his land in the event of no construction/development being carried out by third respondent and in case if any constructions have been carried out, alternative land was demanded of the same measurement, as was of plot No. 90, over which the petitioner has come to be recorded. Since the second and third respondents did not act upon the representation/application of the petitioner, the petitioner approached this Court by means of present writ petition. 6. The argument advanced by learned counsel for the petitioner is that since order rejecting the alleged draft statement and declaring the land as surplus land, passed by the Prescribed Authority dated 29.10.1980 and 3.12.1980 respectively, had come to be quashed, the order of the Prescribed Authority rejecting the objection and the judgment declaring the land as surplus both came to be annulled and the proceedings got reverted back to its initial stage. So, there being no declaration of surplus land, with the enactment of Repeal Act, under Section 4 of the same, the proceedings in respect of the land in question before the Prescribed Authority under the remand of the appellate authority came rightly to be abated by the Prescribed Authority. In view of the order of the Prescribed Authority abating ceiling proceedings under its order dated 4.3.2003, there being no declaration of surplus land, the petitioner is entitled to return of the land, of which, the ultimately, forceful possession was taken by the State and handed over to MDA. 7. Per Contra, the argument advanced by learned counsel for MDA is that once the physical possession was handed over to the MDA and till then no appeal was preferred and the MDA has carried out development work, it cannot return the land. 7. Per Contra, the argument advanced by learned counsel for MDA is that once the physical possession was handed over to the MDA and till then no appeal was preferred and the MDA has carried out development work, it cannot return the land. According to him, the ceiling proceedings in respect of the land in question stood concluded against the petitioner, even prior to preferring his appeal and therefore, by virtue of the alleged abatement order passed by the Prescribed Authority in the year 1999, the finality attached to the proceedings could not be taken away. 8. We have heard learned counsels for the parties and have perused the record. 9. It transpires from the records filed alongwith the writ petition and the counter-affidavit that though the ceiling proceedings were initiated in respect of the land in question against the petitioner and vide order dated 29.10.1980, the objection against the draft statement was rejected and then vide order dated 3.12.1980 the Prescribed Authority declared the land in question to be surplus land, in appeal, preferred by the petitioner under Section 12 of the Ceiling Act, the learned IVth Additional District Judge, Moradabad (Appellate Authority) recorded a categorical finding to the effect that neither the notice was duly served upon the petitioner nor there was anything on record to establish that the draft statement was ever served upon the petitioner and it is under these circumstances, the appellate authority recorded that the notice and draft statement under Section 8(3) read with Rule 5 of the U.P. Land (Ceiling and Regulation) Rules, 1976 (for brevity ‘Rules’) was not complied with and therefore, the entire proceedings were bad and the impugned order deserved to be set aside. The appellate authority, under the circumstances, remanded the matter to the competent Prescribed Authority to dispose of the cases by directing further the parties to appear before the competent authority. 10. Thus, it is under order dated 29.5.1995 passed by the appellate authority under Ceiling Act that the proceedings came to be revived which otherwise had been concluded. The appellate authority, under the circumstances, remanded the matter to the competent Prescribed Authority to dispose of the cases by directing further the parties to appear before the competent authority. 10. Thus, it is under order dated 29.5.1995 passed by the appellate authority under Ceiling Act that the proceedings came to be revived which otherwise had been concluded. As we have noticed that the Repeal Act came to be enforced by the State Legislature with its publication in official Gazette soon after receiving the consent of the Hon’ble President on 24th under Section 4 of the Repeal Act, the proceedings pending before the Prescribed Authority were abated this time by the Prescribed Authority under its order dated 4.3.2003. Section 4 of the Repeal Act runs as under: “4.— Abatement of legal proceedings.—All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or any authority shall abate: Provided that this section shall not apply to the proceedings relating to Secs. 11, 12, 13 and 14 of the principal Act insofar as such proceedings are relatable tot he land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.” 11. In view of the above provision, the proceedings, therefore, under the remand of the order passed by the appellate authority dated 29.5.1995 in the present case, therefore, was a ‘proceeding’ very well covered under Section 4 of the Repeal Act. 12. According to the counsel for the respondents, the moment, appeal is entertained and admitted for hearing, it becomes a continuance of original proceedings and therefore, one cannot take advantage of fact that since appeal was belatedly filed, a decree of the preliminary Court stood satisfied and therefore, no right can flow even from an order passed in appeal. This is in fact the essence of argument raised by learned counsel for respondent Nos. 2 and 3. 13. This is in fact the essence of argument raised by learned counsel for respondent Nos. 2 and 3. 13. Now testing the argument raised by learned counsel for the respondents that with the issuance of notice under Section 10 (5) of the Ceiling Act, technically the possession stood transferred to the State even prior to the petitioner preferring an appeal and therefore, the finality attached to the proceedings with the issuance of notice under Section 10(5), cannot be taken away by belatedly preferring an appeal and thereby getting the proceedings pending and then taking advantage of Repeal Act which came into force only in the year 1999, we find that while it is true that the appeal was preferred by the petitioner only in the year 1992, but then right to appeal is a statutory right given under the Act and, therefore, such vested right could be taken away, even if decree stood passed by the the Court of first instance stand satisfied on law. 14. We do not get persuaded to follow this line of argument, in view of the settled legal position that appeal is a continuance of the original proceedings. 15. Respondent State unsuccessfully preferred writ petition and then SLP before Supreme Court against the order of the appellate authority remanding the matter to the Prescribed Authority. In our considered opinion, no action in between the order passed by the Prescribed Authority and the order under remand by the appellate authority will create any substantive right in favour of the respondents once the original order have stood set aside. 16. Even on the question of actual physical possession of the land in question, as claimed by the respondents, we find that beyond Section 10(5) no further notice was ever issued to the petitioner. Notice under Section 10(5) of the Ceiling Act has been appended by the third respondent in its counter-affidavit as Annexure No. 3. The notice as contemplated under Section 10(5) of the Ceiling Act is only meant for requesting the tenure holder/owner of the land to voluntarily hand over the possession of the land declared surplus within 30 days of the receipt of the notice or else proceedings under Section 10(6) shall be taken up. 17. In this case, as we find the notice was issued on 6.2.1986 but no service of notice upon the petitioner as effected is reflected under Section 10(5), therefrom shown. 17. In this case, as we find the notice was issued on 6.2.1986 but no service of notice upon the petitioner as effected is reflected under Section 10(5), therefrom shown. There is no endorsement of the service of notice upon the petitioner. It is admitted to the parties that there has been no proceedings under Section 10(6) of the Ceiling Act. If we examine the matter from the point of view of the order passed under the Ceiling Act by the Prescribed Authority abating the proceedings in view of the Repeal Act, the law is that there has to be a de facto handing over over of the possession and which is permissible only when the notice is issued under Section 10(6). In State of U.P. v. Hari Ram, (2013) 4 SCC 280 , the Court defined the de facto possession and clearly spelt out how de jure possession is distinguishable from de facto possession. The Court in the case (supra) was dealing with the argument raised that the deeming fiction as discernible from the words and expression “deemed vesting” under sub-Section (3) of Section 10 of the Ceiling Act would amount to de facto possession and, therefore, would be a sufficient compliance of requirement of possession under Section 3(1)(a) of the Repeal Act. The Court observed that there are two categories of dispossession: (a) peaceful dispossession; and (b) forceful dispossession. The Court observed that what is required a land to come out from the purview of Repeal Act is that it should be a case of forceful dispossession in the event of there being no peaceful dispossession. The peaceful dispossession is related to proceedings under Section 10(5) of the Act, whereas, the forceful dispossession is related to proceedings under Section 10(6) of the Act. vide para 39 of the said judgment, the Court concluded thus: “39. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land.” (emphasis added) 18. In the present case also, it is admitted to the parties that there has been no notice issued to the petitioner under Section 10(6) and therefore, there was no question of any forceful dispossession of the petitioner. However, from the record, it clearly transpires that the petitioner stood dispossessed physically in terms of forceful dispossession as the land stood transferred to MDA and in view of the own admission of the petitioner in the writ petition and as the prayer has been made for restoration of the possession, the de facto possession of the land in question lies with the respondent Nos. 2 and 3. 19. Although we do not find anything which do make dispossession of the petitioner a lawful one, as the very order declaring the land surplus was set aside and, therefore, the entire proceedings of dispossession of the petitioner got rendered null and void, but we are also unable to uphold the argument of learned counsel for the respondents that the ceiling proceedings culminated into finality and the Repeal Act does not have any significance in the matter. For the purpose of ceiling proceedings, we are of the considered opinion, that the proceedings pending before the Prescribed Authority remained alive under the Ceiling Act and the Ceiling Act being a complete code in itself providing procedure of notice, objection, disposal of objection, declaration of land as surplus, payment of compensation and ultimately appeal, the order of remand by the appellate authority under the Ceiling Act, therefore, amounted to revival of proceedings and for all practical and legal purposes a mere transfer, may be a physical transfer of the land to the MDA, is not rendered legal/lawful and will not make it de jure possession under the Ceiling Act. Even testing the argument on the principle of law regarding abatement of proceedings under Urban Ceiling Act qua the land, of which possession stand transferred without there being notice under Section 10(5) and 10(6) as held in the case of State of Assam v. Bhaskar Jyoti Sarma and others, (2015) 5 SCC 321 , we find the ratio of the said (supra) judgment is based upon a fact that land stood declared surplus when possession was taken and that judgment of Prescribed Authority was in existence when Repeal Act came into force. This is not the fact position in the present case. This is not the fact position in the present case. Here, at the time of abatement, the order of the Prescribed Authority declaring the land as surplus, was already set aside and the order setting aside the order of Prescribed Authority was also confirmed in SLP. It is while the matter was again pending on remand that the Repeal Act came into force. The law is well-settled, once the original order is set aside/annulled, consequential action taken pursuant to such original order also stand annulled. So even if possession was taken before appeal was allowed, with the setting aside of the order declaring the land as surplus, the said order shall have no legal effect and such fact situation is not saved even by the ratio of the judgment in Bhaskar Jyoti (supra). 20. Having held above, the transfer of land to the MDA to be illegal and void, we also are of the opinion that retention of the land in question of the petitioner by the second and third respondents is also illegal. 21. However, since it is a case of second and third respondents in the counter-affidavit that they have utilized the surplus land in its residential colony, what has been done, therefore, cannot be undone in respect of the nature of land, but the MDA is certainly liable to hand over the land of equal measurement to the petitioner anywhere from its own land within a period of three months from the date of production of certified copy of this order. We make it further clear that in the event, the MDA does not have any vacant land, it shall compensate the petitioner for the land, possession of which was handed over to it by the State by making compensation @ admissible to the land which has been utilized by it as of the present rate as per current valuation of land use alongwith an interest @ 9% from the date of order abating the proceedings. 22. With the aforesaid directions, the writ petition is allowed.