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2018 DIGILAW 98 (ALL)

TRILOKI DAS @ TRILOKI NATH v. STATE OF U. P.

2018-01-10

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT : Hon’ble Irshad Ali, J.—Heard learned counsel for the petitioner Sri Ajay Kumar Singh and learned Standing counsel representing respondent Nos. 1 to 6. 2. By means of the present writ petition, the petitioners have sought for issuing a writ of mandamus restraining the respondents from interfering in possession of the petitioners over the property in question and also restrain them not to demolish the construction of the petitioners standing over the land and further it has been prayed that the parties be directed to maintain status quo. 3. Learned counsel for the petitioners submitted that they are the owners of the plot No. 148/1 area 1.890 acres; plot No. 150/1 area 2.920 acres and plot No. 149/1 area 13 1/4 decimal situate at Samneghat Nagwan, Varanasi. A proceeding under Section 8 (4) of the Urban Land (Ceiling and Regulation) Act, 1976 was initiated against the petitioners declaring the area of the aforesaid plots as surplus land. 4. The submission of learned counsel for the petitioners is that the proceeding initiated on 18.12.1981 was ex parte in nature and without issuing notice and affording opportunity of hearing to them. Against the order dated 18.12.1981 Sri Deo Nath Singh, father of the petitioner No. 7 to 10 and their predecessor filed Ceiling Appeal No. 123 of 1998 alongwith application for condonation of delay. The appeal was allowed by the District Judge, Varanasi vide judgement and order dated 14.12.2000 and the proceedings initiated as per the order dated 18.12.1981 were set aside. A Writ Petition No. 14093 of 2002 (State of U.P. through Collector v. Deo Nath and others) was filed filed before this Court challenging the judgement and order passed by the District Judge, Varanasi dated 14.12.2000. In the aforesaid writ petition, this Hon’ble Court passed an order dated 11.4.2002 whereby the writ petition was admitted and notices were issued on stay application by staying operation of the order dated 14.12.2000 and directing the parties to maintain status quo as on date with regard to the possession and nature of land. On the land in dispute, the petitioners have raised constructions in the shape of two houses and 13 shops. The area is covered by boundary wall and petitioners are in possession over the plot in question from the time of their ancestors for more than 60 years. 5. On the land in dispute, the petitioners have raised constructions in the shape of two houses and 13 shops. The area is covered by boundary wall and petitioners are in possession over the plot in question from the time of their ancestors for more than 60 years. 5. In spite of the order passed by this Court directing to maintain status quo, the Varanasi Development Authority tried to dispossess the petitioners from the property in question and threatened to demolish the petitioners’ constructions and get the premises vacated. 6. Feeling aggrieved the petitioners approached Collector Varanasi and filed a representation to the Secretary Nagar Vikas U.P. Shashan, Lucknow bringing therein the entire facts and circumstances of the case and requested that the respondents be restrained from interfering in the possession of the petitioners during the pendency of the writ petition challenging the order passed in the Ceiling Appeal No. 123 of 1998. When no action was taken by the respondents on the application of the petitioners then the present writ petition was filed. 7. Learned counsel for the petitioners submitted that the Writ Petition No. 14093 of 2002 (State of U.P. through Collector v. Deo Nath and others) was dismissed by this Court vide judgement and order dated 20.12.2006 and has placed the copy of the aforesaid judgement before this Court. The relevant portion of the judgement dated 20.12.2006 is being quoted herein below : “We may first deal with the SECOND BUNCH of the writ petition. In the said bunch of petitions the appeals were pending on the date of coming of the Repeal Act and it is enforcement in the State of U.P., i.e. 18.3.1999. Under the Repeal Act itself it is provided in Section 4 thereof that all such proceedings pending on the date of coming of the Repeal Act would stand abated. The order of the District Judge in the second bunch of the writ petitions whereby either the proceedings were abated alongwith the orders passed under Section 8(4) of the Act or they were set aside would amount to one and the same thing and, therefore, there could be no issue that in the pending appeals, the District Judge could not have passed the order. Whatever may be the nature of the order according to us, allowing the appeal of the landholders or abating the proceedings were one and the same thing and both category of orders were justified and legally valid. There is no challenge in the writ petitions with regard to the finding on possession recorded in the judgement of the learned District Judge. Thus, the Second Bunch of the writ petitions are liable to be dismissed. Now coming to the FIRST BUNCH of the writ petitions in which the District Judge entertained the appeals which were filed after the enforcement of the Repeal Act in cases where the proceedings under Section 10(5) of the Act were being taken by the State after the enforcement of the Repeal Act. The District Judge had held that such proceedings were vitiated and accordingly the appeals were allowed and the proceedings abated as admittedly the possession had continued with the land holders. It may be mentioned that in view of the discussion made above the ultimate result would be the same i.e. the State could not have proceeded to take possession under the Act after the enforcement of the Repeal Act and, therefore, the possession was to continue with the landholders. Initiation of proceedings for possession clearly meant that the State was not in possession either symbolic or actual physical possession. Thus even if the District Judge wrongly exercised the jurisdiction but as the order passed by him was in accordance with the substantive provisions contained in the Repeal Act and ultimately did justice between the parties, there would be no justification to set aside the same in discretionary and equitable jurisdiction of this Court under Article 226 of the Constitution of India. It is well-settled that an order without jurisdiction if results into doing justice between the parties and being correct in law otherwise need not necessarily be quashed in writ proceedings. In the case of Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others, (1999) 8 SCC 16 , the Supreme Court held that refusal to interfere in writ jurisdiction would be justified where the order of Tribunal if set aside on the ground of lack of jurisdiction, would result into revival of an illegal order. We, therefore, decline to interfere in the orders so passed by the District Judge in the First Bunch of the writ petitions. We, therefore, decline to interfere in the orders so passed by the District Judge in the First Bunch of the writ petitions. Coming to the THIRD BUNCH of the writ petitions where the District Judge has entertained the appeals on merits filed after the enforcement of the Repeal Act we are of the view that once again it does not call for issuance of writ of certiorari inasmuch as the State in all the writ petitions in the third bunch has again failed to come up with the stand that it was in actual physical possession and that compensation had been paid to the landholders. There is no averment in the said writ petitions that the State was in actual possession. That being so, it would be an exercise in futility to interfere in the Third Bunch of the writ petitions also for the same reason as recorded with regard to the first bunch of the writ petitions. The Act provides the manner for taking over possession, the State can take possession only in that manner and under the said Act only. It cannot resort to any other mode for taking possession of the land declared as surplus. Thus, after the enforcement of the Repeal Act, the State cannot take possession now either under Section 10(5) or under Section 10(6) of the Act. It has, however, been submitted on behalf of the State that the landholders should apply to the Collector or the State Government under certain Government Orders for restoration of possession and also for correction of records. The admitted position would be that all such applications of the landholders are bound to be allowed. Whether the District Judge had passed the order in the appeal or the Collector passes such orders on miscellaneous applications, the net result would be the same. The records are liable to be corrected in accordance with the orders passed by the District Judge. All the writ petitions are accordingly dismissed. There shall, however, be no order as to costs.” 8. It has further been pointed out by learned counsel for the petitioners that against the judgement and order dated 20.12.2006 no recourse has been adopted by the State machinery to challenge the said judgement before the Supreme Court of India as such the order passed by the appellate Court in Ceiling Appeal No. 123 of 1998 attained finality in the eyes of law. 9. On the other hand, learned Standing counsel appearing on behalf of the respondents submits that in pursuance to the order dated 18.12.1981 Varanasi Development Authority has taken physical possession of the land in dispute on 5.12.1988. In regard to the taking possession over the land in dispute, the learned counsel for the petitioners submits that a notice under sub-section 5 of Section 10 of the Act, 1976 was issued on 4.12.1998 in the name of Late Shivdhani Das, who had died about 14 years ago on 28.9.1984 and immediately after his death his legal heirs/representatives were mutated and no notice was served to the legal heirs/representatives of the Late Shivdhani Das. It has also been pointed out that notice takes reference that in case the possession is not handed over within 30 days of the notice (i.e. by 4.99 proceedings under Section 10(6) of the Act shall be undertaken). Meaning thereby the date of notice was expiring on 4.1.1999 for taking possession and Ceiling Appeal No. 123 of 1998 was admitted by the District Judge on 15.12.1998 and the operation of the order dated 18.12.1981 was stayed as such story in regard to the taking of possession over the land in dispute cannot be accepted. The document of possession has been prepared after thought and is forged of fictitious documents. 10. Once the order dated 13.12.1998 passed in Ceiling Appeal No. 123 of 1998 whereby the order dated 18.12.1981 was set aside and the writ petition filed challenging the said order has been dismissed vide judgement and order dated 20.12.2006, the question of taking over possession of the land of the petitioners did not arise at all. Thus, the action of the respondents in interfering in the possession of the petitioners is not justifiable in law. 11. In view of the above, we find force in submissions of the learned counsel for the petitioners. 12. Accordingly, the writ petition succeeds and is allowed. The respondents are restrained from interfering in the peaceful possession of the petitioners over the land in dispute with liberty to initiate proceeding by following procedure in accordance with law.