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2018 DIGILAW 861 (ALL)

RAMESH PRASAD v. STATE OF U. P.

2018-04-10

A.P.SAHI, SHASHI KANT

body2018
JUDGMENT By the Court.—Heard Sri Raj Karan Yadav, learned counsel for the petitioners, Sri Satendra Pratap Singh, learned Standing Counsel for the respondent Nos. 1 and 2 and Sri Vivek Verma for the respondent No. 3. Both the respondents have filed their counter-affidavits, and the rejoinder-affidavit have also been filed by the petitioners. Upon exchange of affidavits, the Court after having noticed the allegations and counter allegations vide order dated 2nd April, 2018 had summoned the original records. The order dated 2.4.2018 is extracted hereinunder : “Heard Sri Raj Karan Yadav, learned counsel for the petitioners and Sri S.K. Shukla, learned Standing Counsel for the respondent No. 1. This matter has been taken up on several occasions in order to produce the original record to find out as to whether the actual physical possession has been taken from the petitioners or not by complying with the provisions of possession under Section 10 (6) of Urban Land (Ceiling and Regulation) Act, 1976. Learned Standing Counsel states that the records are not available today. We have perused the affidavits filed on behalf of the State and Development Authority both, where the notices up to the stage of Section 10 (5) of Urban land (Ceiling and Regulation) Act, 1976 have been brought on record. There is no material to indicate the taking over of the possession through the process as provided for under Section 10 (6) of the Urban Land (Ceiling and Regulation) Act, 1976. Consequently, let the records be produced on the next date fixed. Sri S.K.Shukla, learned Standing Counsel submits that the matter may be taken up on 9th April, 2018. Let the matter come up on 9th April, 2018.” 2. The records have been produced and what emerges from the records is that these proceedings that arise out of declaration of land as surplus under The Urban Land (Ceiling And Regulation) Act, 1976 have been instituted with a view to seek benefit of the Repeal Act, namely, The Urban Land (Ceiling And Regulation) Repeal Act, 1999. The contention raised is that the petitioners continue to be in uninterrupted actual physical possession of the land that was declared surplus even on the date of the promulgation of the Repeal Act, and therefore, they are entitled to retain the said land, keeping in view the benefits arising therefrom. The contention raised is that the petitioners continue to be in uninterrupted actual physical possession of the land that was declared surplus even on the date of the promulgation of the Repeal Act, and therefore, they are entitled to retain the said land, keeping in view the benefits arising therefrom. For this, reliance has been placed by the learned counsel for the petitioners on the Apex Court decision in the case of State of U.P. v. Hari Ram, 2013(4) ADJ 249 (SC) and that of Mangalsen v. State of U.P. and another, 2014 (15) SCC 332 . 3. There are other judgments following the said decision of this Court, as well, that have also been relied on by the learned counsel for the petitioners. 4. The short question to be examined in this case is, as to whether, the proceedings of service of notice and taking over of possession have been complied with according to the statutory provisions of Sections 10(5) and 10(6) of the 1976 Act or not. 5. Since the original records have been produced which are no different from the stand taken in the counter-affidavit of the State, as well as, the Development Authority, what we find is that the notice under Section 10(5) of the 1976 Act is dated 29th January, 1987. The notice is prepared in triplicate, one original, the second to be dispatched to the Collector for taking possession and the third to be served on the land holder. The record which has been placed before the Court discloses that all the three copies of the said notice under Section 10(5) are maintained and available on the file without any endorsement or receipt of their dispatch. 6. In our considered opinion, after having gone through the original records which are no different from the records appended alongwith the counter-affidavit, it is now established that the notice under Section 10(5) was prepared but was not actually dispatched and stood retained on the record. The stand taken in the counter-affidavit that the notice under Section 10(5) was sent is, therefore, contrary to the record, and consequently the action sought to be taken against the petitioners for dispossessing them is an outcome of such perversity which cannot be sustained in law. 7. The stand taken in the counter-affidavit that the notice under Section 10(5) was sent is, therefore, contrary to the record, and consequently the action sought to be taken against the petitioners for dispossessing them is an outcome of such perversity which cannot be sustained in law. 7. What further appears is that the date of the notice under Section 10(5) is 29th January, 1987 whereas the date of taking possession in terms of Sub-Section (6) of Section 10 is 23rd April 1986. This cannot be possible as 10(6) stage is subsequent to 10(5) and not before that. This defect has been clearly pleaded in the writ petition, and not only this, the counter-affidavit of the respondents does not dispute the said position. To the contrary the counter-affidavits refer to the same dates. The dates also tally with the original record. This, therefore, now cannot be orally pleaded as a typographical error and it appears that the entire paper transaction has been carried out without application of mind and without even mentioning the correct dates relating to the taking over of possession. If the dates are correct then the transaction is sham being manipulated rendering the proceeding a nullity. If the dates are wrong, which is not the case of the respondents, then the action reflects complete non application of mind. We are, therefore, of the considered opinion that it stands established from the records that the provisions of Section 10(6) have infact not been complied with. 8. Thirdly, there also appears to be a discrepancy in the mode of taking possession as alleged, inasmuch as, two witnesses Daya Ram and Dharam Raj are stated to have witnessed the said taking over of possession. The thumb impression of Daya Ram has been obtained and Dharam Raj has allegedly signed. This fact has been seriously disputed in the rejoinder-affidavit by the petitioners that was served several years ago on the respondents, the facts whereof have not been disputed. It is stated that Daya Ram is a literate person, and therefore, there was no occasion to obtain his thumb impression. Secondly, Dharam Raj is not even a resident of the village. This fact has been seriously disputed in the rejoinder-affidavit by the petitioners that was served several years ago on the respondents, the facts whereof have not been disputed. It is stated that Daya Ram is a literate person, and therefore, there was no occasion to obtain his thumb impression. Secondly, Dharam Raj is not even a resident of the village. We cannot finally form any opinion on these disputed questions of fact but the aforesaid doubtful situation has to be read in favour of the petitioners as neither the parentage nor the address of the witnesses are recited on the possession memo so as to identify them and the genuineness of their endorsements. 9. Consequently, for all the reasons above, there being a non-compliance of the statutory provisions and its observance in breach, renders the action of the respondents impermissible in law, in view of the decisions of the Apex Court as referred to hereinabove. Further, we may put on record that our conclusion finds support not only from the above decision of the Apex Court but in view of the later decisions of this Court in the case of Veer Nagar Sahakari Awas Samiti Ltd. v. State of U.P. and others, 2016 (133) RD 327 and in the case of Bilatun Nisha v. State of U.P. and two others, 2018(6) ADJ 83 (DB). 10. The prayer made in this writ petition is to quash the order dated 19th October, 2007 passed by the District Magistrate (Annexure No. 4 to the writ petition) and the order of the prescribed authority dated 19.12.1980. For this we may put on record that the petitioners had resisted the action of the respondents by moving a representation before them not to dispossess the petitioners. They then filed a writ petition before this Court being Writ Petition No. 44807 of 2004 that was disposed of on 21st February, 2005 calling upon the State Government to pass an appropriate order. 11. Instead of the State Government, the District Magistrate passed the impugned order on 19th October, 2007 stating therein that since possession has been taken, the representation of the petitioner is liable to be rejected. We have already indicated above that possession has not been taken in terms of statutory provisions. The order of the District Magistrate dated 19th October 2007, therefore, also suffers from the same infirmity. 12. We have already indicated above that possession has not been taken in terms of statutory provisions. The order of the District Magistrate dated 19th October 2007, therefore, also suffers from the same infirmity. 12. Accordingly, the writ petition is allowed, the order of District Magistrate dated 19th October, 2007 is quashed. The petitioners shall be entitled to retain the possession of land in dispute. The original records that have been perused by us has been returned back to the learned Standing Counsel.